RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-03403

xxxxxxxxxxxxx	COUNSEL: NONE

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His records be corrected to reflect he was medically retired due to a spinal cord issue and traumatic brain injury (TBI), not mental illness.

APPLICANT’S CONTENTIONS

His medical conditions of spinal cord C1/C2 and TBI were the cause of his medical problems which led to his discharge; he did not have a mental illness.  The incorrect stigma of mental illness resulted in career loss and adverse medical care and treatment.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a medically retired Air Force airman first class (E-3). 

On 12 Feb 96, AF IMT 618, Medical Board Report, indicates the applicant was referred to the Informal Physical Evaluation Board (IPEB) for mental disorder and a history of closed head injury.

On 12 Mar 96, AF Form 356, Informal Findings and Recommended Disposition of USAF Physical Evaluation Board, indicates the applicant was found unfit due to his medical condition of mental disorder, not otherwise specified due to status post closed head injury and considerable impairment of social and industrial adaptability with a disability compensation rating of 50 percent with a recommendation of “Temporary Retirement.” 

On 25 Mar 96, AF Form 1180, Action on Physical Evaluation Board Findings and Recommended Disposition, indicates the applicant agreed with the findings and recommended disposition of the board.

Dated 9 Apr 96, Special Order XXXXX, indicates the applicant was placed on the temporary disability retired list (TDRL) in the grade of airman first class with a compensable percentage for physical disability of 50 percent, effective 21 May 96. 

On 27 Oct 97, AF Form 356, indicates the applicant was found unfit due to his medical condition of mental disorder, not otherwise specified with a history of closed head injury.  Definite social and industrial adaptability impairment with a disability compensation rating of 30 percent with a recommendation of “Permanent Retirement.” 

On 19 Nov 97, Attachment 1, Action on the Findings and Recommended Disposition of the USAF Physical Evaluation Board (TDRL), indicates the applicant agreed with the findings of the Board.

Dated 3 Dec 97, Special Order XXXXX, indicates the applicant was permanently disability retired in the grade of airman first class with a compensable percentage for physical disability of 30 percent, effective 23 Dec 97.  

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisories at Exhibits C, D, and E.

APPLICABLE AUTHORITY/GUIDANCE

On 3 Sep 14, the Secretary of Defense issued a memorandum providing guidance to the Military Department Boards for Correction of Military/Naval Records as they carefully consider each petition regarding discharge upgrade requests by veterans claiming PTSD.  In addition, time limits to reconsider decisions will be liberally waived for applications covered by this guidance.

On 25 Aug 17, the Under Secretary of Defense for Personnel and Readiness (USD P&R) issued clarifying guidance to Discharge Review Boards and Boards for Correction of Military/Naval Records considering requests by veterans for modification of their discharges due in whole or in part to mental health conditions [PTSD, Traumatic Brain Injury (TBI), sexual assault, or sexual harassment].  Liberal consideration will be given to veterans petitioning for discharge relief when the application for relief is based in whole or in part on the aforementioned conditions.

Under Consideration of Mitigating Factors, it is noted that PTSD is not a likely cause of premeditated misconduct.  Correction Boards will exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct.  Liberal consideration does not mandate an upgrade.  Relief may be appropriate, however, for minor misconduct commonly associated with the aforementioned mental health conditions and some significant misconduct sufficiently justified or outweighed by the facts and circumstances.

Boards are directed to consider the following main questions when assessing requests due to mental health conditions including PTSD, TBI, sexual assault, or sexual harassment:

a. Did the veteran have a condition or experience that may excuse or mitigate the discharge?
b. Did that condition exist/experience occur during military service?
c. Does that condition or experience actually excuse or mitigate the discharge? 
d. Does that condition or experience outweigh the discharge?

On 25 Jul 18, the Under Secretary of Defense for Personnel and Readiness (USD P&R) issued supplemental guidance to military corrections boards in determining whether relief is warranted based on equity, injustice, or clemency.  These standards authorize the board to grant relief in order to ensure fundamental fairness.  Clemency refers to relief specifically granted from a criminal sentence and is a part of the broad authority Boards have to ensure fundamental fairness.  This guidance applies to more than clemency from sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  Each case will be assessed on its own merits.  The relative weight of each principle and whether the principle supports relief in a particular case, are within the sound discretion of each Board.  In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, the Board should refer to the supplemental guidance, paragraphs 6 and 7. 

On 16 Dec 21, the Board staff provided the applicant a copy of the liberal consideration guidance (Exhibit G).

AIR FORCE EVALUATION

The AFBCMR Psychological Advisor completed a review of all available recommends and finds insufficient evidence to support the applicant’s desired changes to his record.  The applicant was evaluated extensively during service consisting of three hospitalizations by multiple providers, with different evaluations and treatment modalities to include neuropsychological testing, over a prolonged period of time.  All providers made similar observations and analysis of the applicant’s mental health conditions.  It was in agreement among his providers that the cause of his mental health conditions, specifically his symptoms of hallucinations, de-realization/depersonalization, and homicidal ideation were more likely than not, related to a head injury he sustained from a motor vehicle accident that had occurred when he was 17 and prior to his time in the military.  His head injury is considered a TBI; however, it was the residual effects and the behavioral and mental health changes deriving from the TBI that had interfered with his ability to function appropriately in a military setting that led to his medical discharge.  Whether his TBI, as a separate medical or physical condition, had elevated to an unfitting condition is questionable, as this psychological advisor could not offer an opinion as this, is out of the scope of practice for this advisor.  An advisory from the medical advisor is recommended to address his contended physical conditions of TBI and spinal cord C1/C2.  His TBI causing mental health conditions and symptoms were found to be unfitting for service.  After the applicant was discharged from service, he would receive intermittent mental health treatment from the Department of Veterans Affairs (DVA) through the years for various conditions to include Panic Disorder, Anxiety Disorder, Major Depressive Disorder, Personality Disorder and Psychotic Disorder.  The fact that he continues to display similar symptoms post service, albeit with additional conditions caused by post service stressors, provides support that he had a valid mental health condition during service.  The applicant did not provide any records negating or disputing his mental health condition he was documented to experience in service or that his mental health disorder diagnosis was made in error.  Thus, this psychological advisor finds no error or injustice with his discharge process from service.  The Board may elect to apply liberal consideration to the applicant’s request due to his contention of a mental health condition, however, his condition or experience does not outweigh his original discharge.  He was appropriately discharged for having an unfitting mental health condition.

The Board applied liberal consideration to the applicant’s petition based on the contention of a mental health condition.  The following are responses based on information presented in the records to the four pertinent questions in the policy:

1.  Did the veteran have a condition or experience that may excuse or mitigate the discharge?
The applicant contends he does not have a mental health condition.

2.  Did the condition exist or experience occur during military service?
There is ample and sufficient evidence reporting the applicant had an authentic and valid mental health condition during service.  He was hospitalized three times for his mental health condition and was given diagnoses of Depersonalization Disorder and Mental Disorder NOS in service.

3.  Does the condition or experience excuse or mitigate the discharge?
The applicant’s mental health condition of Mental Disorder NOS was found unfitting by the IPEB and was the cause and reason for his discharge from service.  His condition or experience does not excuse or mitigate his discharge. 

4.  Does the condition or experience outweigh the discharge?
His condition or experience does not outweigh his original discharge.  He was appropriately discharges for having an unfitting mental health condition.

The complete advisory opinion is at Exhibit C.

AFPC/DPFDC recommends denying the application as there was no evidence an error or injustice occurred during the processing of his medical case.  The member was placed on TDRL by the Informal Physical Evaluation Board (IPEB) with a disability rating of 50 percent for “mental disorder, not otherwise specified, due status post closed head injury.  Considerable impairment of social and industrial adaptability.”  On 25 Mar 96, the applicant concurred with the findings of the IPEB and declined to appeal this decision to the Formal Physical Evaluation Board (FPEB).  On 27 Oct 97, the IPEB reviewed the member’s TDRL medical documentation, and elected to permanently retire him with a disability rating of 30 percent.  On 19 Nov 97, the applicant again concurred with the findings of the IPEB and chose not to appeal to the FPEB.  On the applicant’s TDRL psychiatric narrative summary, dated 30 Sep 97, it states the applicant indicated he was doing “a little better” overall.  He denied impulses to harm himself or others and denied conflict with legal authorities or episodes of violence.  He denied having any seizures.  His mental health condition was classified as having “marked” impairment for military service and “considerable” impairment for civilian industrial adaptability.  The applicant admitted to erratic medical compliance.  The IPEB review recommended disapproval of the applicant’s request to change his reason for his medical retirement to cervical spinal cord injury and TBI.  No pertinent documentation was seen to justify adding a neck injury as an unfitting condition.  Additionally, the source of the applicant’s closed head injury/TBI appears to be a motor vehicle accident that took place in 1992, two years prior to his entry into the service.  Based on the information presented in his medical documentation, the IPEB made the correct call to permanently retire the member at 30 percent under the Veterans Affairs Schedule for Rating Disabilities (VASRD) Code 9304.

The complete advisory opinion is at Exhibit D.

The AFBCMR Medical Advisor recommends denying the applicant’s request to change his medical disability reason from mental health condition to TBI and spinal cord injury.  The applicant’s medical history simply does not support the absence of a mental health condition.  His history suggests rather, that he has a primary psychiatric diagnosis.  This is supported by the development of at least auditory and olfactory hallucinations at the age of 7 in association with suicidal ideation as a child.  These symptoms developed before he entered military service and before the head trauma cited in his record, which occurred in 1992, which was before he entered military service.  While the applicant reported another instance of head trauma when he was 3 years old, that history is vague and there are no details available to relate it to his symptoms.  In addition the magnetic resonance imaging (MRI) of his brain revealed normal brain anatomy and no evidence of prior significant damage to the brain tissues and his two electroencephalograms (EEGs) were also normal.  Furthermore, an evaluation for TBI done by the DVA in 2013 found that his TBI was unlikely to be the cause of his psychiatric symptoms.  Finally, there is no mention in the records provided of any spine condition present while he was in the military, nor is there evidence to suggest that any spine condition that may have theoretically existed was unfitting. Therefore, there is no medical evidence to suggest that an error was made by the IPEB in characterizing his diagnosis as a mental health condition.

The complete advisory opinion is at Exhibit E.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 6 Dec 21 for comment (Exhibit F), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was not timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of the offices of primary responsibility (OPR) and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  Specifically, the applicant was appropriately discharged for having an unfitting mental health condition and continues to display similar symptoms post service.  His head injury is considered a TBI and EPTS; however, it was the residual effects and the behavioral and mental health changes deriving from the TBI that had interfered with his ability to function appropriately in a military setting that led to his medical discharge.  There is no mention, in the records provided, of any spine condition present while he was in the military, nor is there evidence to suggest that any spine condition that may have theoretically existed was unfitting.  In addition, the Board is satisfied that the application of liberal consideration does not warrant relief.  The Board also notes the applicant did not file the application within three years of discovering the alleged error or injustice, as required by Section 1552 of Title 10, United States Code, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  The Board does not find it in the interest of justice to waive the three-year filing requirement.  Therefore, the Board finds the application untimely and recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the application was not timely filed; it would not be in the interest of justice to excuse the delay; and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2020-03403 in Executive Session on 26 Jan 22:

, Panel Chair
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, dated 18 Sep 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C: Advisory opinion, AFBCMR Psychological Advisor, dated 5 May 21.
Exhibit D:	Advisory opinion, AFPC/DPFDC, dated 13 May 21.
Exhibit E:	Advisory opinion, AFBCMR Medical Advisor, dated 5 Oct 21.
Exhibit F:	Notification of advisory, SAF/MRBC to applicant, dated 6 Dec 21.
Exhibit G:	Letter, SAF/MRBC, w/atchs (Post-Service Request and Liberal Consideration  
                  Guidance), dated 16 Dec 21.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.