RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-00309

XXXXXXXXXXXXXXXXXXX	COUNSEL: XXXXXXXXXXXXXXXXX

	HEARING REQUESTED: NOT INDICATED

APPLICANT’S REQUEST

1.  Her discharge be changed to a medical retirement retroactive to 28 Jul 12.

2.  Her discharge with a 20 percent disability rating be increased to 40 percent.

APPLICANT’S CONTENTIONS

Her Major Depressive Disorder (MDD) was not properly considered during her Physical Evaluation Board (PEB).  Her medical records are replete with mentions of her mental health issues, beginning in 2003.  She has a family history of depression and anxiety but did not suffer from these ailments in earnest until after the birth of her children.  Further, her deployment-to Iraq exacerbated her depression and anxiety issues.  The PEB made an error in fact by not considering the detrimental effects of her MDD and anxiety at the time of her Informal Physical Evaluation Board (IPEB) and Formal Physical Evaluation Board (FPEB).  Her medical records state that her service in the Air Force was a contributing factor to her depression during the end of her career.  It is difficult to comprehend how the PEB could find that these issues did not adversely affect her job performance.  Her medical records indicate she was hesitant to open up entirely about the gravity of her mental health issues during her evaluations.  The PEB should have recognized that she was suffering with her debilitating depression and anxiety on a daily basis and found that her mental health issues were caused or exacerbated by her Air Force service, thus rendering these conditions appropriate for a disability rating.  The PEB erred by rating her total disability at 20 percent rather than the 40 percent she requested.

The applicant’s complete submission, with attachments, is at Exhibit A.

STATEMENT OF FACTS

The applicant is a medically separated Air Force Technical Sergeant (E-6).

On 20 Oct 10, the applicant was diagnosed with a medical defect/condition requiring Medical Evaluation Board (MEB) or Physical Evaluation Board (PEB) processing.

On 15 Sep 11, the applicant’s commander notified the MEB that the applicant’s medical condition did not allow her to perform all in-garrison duties.  She was unable to perform military duties that required running/lifting; however, her medical condition did not affect her ability to perform comptroller-related duties while assigned to a non-deployed location.  The commander stated if the applicant were to receive a permanent exemption from running, push-ups and crunches, to include no deployments outside the continental United States, she would be able to continue making valuable contributions to her unit’s home station mission.

On 21 Sep 11, the MEB recommended the applicant be referred to the IPEB.

AF Form 356, Findings and Recommendation of the USAF Physical Evaluation Board (PEB), dated 12 Jan 12, Block 9A, Category I, Unfitting Conditions which are Compensable and Ratable reflects:  Lumbar Degenerative Disc Disease with Radiculopathy rated at 20 percent; and Category II, Conditions that can be Unfitting but are not Currently Compensable or Ratable reflects:  Major Depressive Disorder, Recurrent, Moderate.  The IPEB recommended the applicant be discharged with severance pay with a disability rating of 20 percent.

On 7 Feb 12, the applicant disagreed with the findings and recommended disposition of the IPEB and requested a formal hearing of her case.

On 15 Mar 12, the FPEB recommended the applicant be discharged with severance pay with a disability rating of 20 percent for Lumbar Degenerative Disc Disease with Radiculopathy.

On 16 Mar 12, the applicant agreed with the findings and recommended disposition of the FPEB but requested a one-time reconsideration of disability ratings for unfitting conditions under the Integrated Disability Evaluation System, with the understanding that she must submit documentation in support of her request or reconsideration would not be granted.

On 18 Apr 12, the Secretary of the Air Force Personnel Council, on behalf of the Secretary of the Air Force, directed that the applicant be separated from active service for physical disability with severance pay.

On 28 Jul 12, the applicant was honorably discharged with a narrative reason for separation of “Disability, Severance Pay, Noncombat (Enhanced)” and was credited with  15 years, 4 months, and 9 days of total active service.

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

APPLICABLE AUTHORITY

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 Post Traumatic Stress Disorder (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.

Currently, service members diagnosed with mental health conditions receive heightened screening to ensure the causal relationship of possible symptoms and discharge basis is fully considered, and characterization of service is appropriate.  Veterans discharged under prior procedures, or before verifiable diagnosis, may not have suffered an error because the separation authority was unaware of their condition or experience at the time of discharge.  However, when compared to similarly situated individuals under current standards, they may be the victim of injustice because commanders fully informed of such conditions and causal relationships today may opt for a less prejudicial discharge to ensure the veteran retains certain benefits, such as medical care.

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.

On 25 Jul 18, the USD P&R issued further guidance with the intent to set clear standards.

Copies of the Board guidance memoranda are at Exhibit G.

AIR FORCE EVALUATION

AFPC/DPFDD recommends denying the application.  Based on the documentation provided by the applicant and analysis of the facts, there is no indication an error or injustice occurred at the time the PEB processed her disability case.  Although the applicant was receiving ongoing mental health treatments and had significant mental health issues at the time of her separation, AFPC/DPFDD does not see evidence that these issues were severe enough to significantly affect her ability to perform her duties and be classified for military service.  There was no suggestion on any mental health visit that she could not perform her duties or that she needed to be referred to a medical board for her mental health issues.  The submitted AF 469, Duty Limiting Condition Report, although outdated (signed 2 May 11), referred to the applicant’s physical issues, but did not list any duty restrictions referable to her mental health issues.  The applicant’s commander described the applicant’s physical difficulties (back pain/ arthritis), but did not mention any mental health problems.  The commander stated that the applicant could perform comptroller-related duties while assigned to a non-deployed location (that did not require running/ lifting), indicating that her mental health issues did not affect her ability to perform her duties.  The Narrative Summary listed the applicant’s mental health diagnosis as mood disorder with anxiety features, but did not list any debility or duty restrictions referable to the mental health condition.  The Department of Veterans Affairs (VA) Form 21-0819, VA/DoD Joint Disability Evaluation Board Claim, did not list any mental health conditions to be considered as the basis of fitness for duty determination.  The VA Compensation and Pension (C&P) examination on 4 Aug 11 stated that the applicant’s psychiatric symptoms did not impact her ability to work.  Her impairment was deemed to be occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation.

The complete advisory opinion is at Exhibit C.

The AFBCMR Psychological Advisor recommends denying the application.  Based on an exhaustive review of the records, the Psychological Advisor regrettably finds insufficient evidence to support the applicant’s request for a change to her records.  There is no evidence that she had any unfitting mental health conditions to include MDD that would provide to her additional disability ratings at the snapshot in time meeting eligibility for a medical retirement from service.  The Psychological Advisor acknowledges that the VA proposed and assigned a 30 percent disability rating for MDD during the IDES process causing confusion.  It is therefore, imperative to be aware that the requirements of receiving a disability rating or compensation from the Air Force and the VA differ vastly.  The Air Force/Department of Defense under Title 10, United States Code (U.S.C.), only offer compensation for those service incurred diseases or injuries which specifically rendered a member unfit for continued active service and were the cause for career termination; and then only for the degree of impairment present at the “snapshot” in time of separation and not based on post-service progression of disease or injury.  To the contrary, the VA, operating under a different set of laws, Title 38, U.S.C., is empowered to offer compensation for any medical condition with an established nexus with military service, without regard to its impact upon a member’s fitness to serve, the narrative reason for release from service, or the length of time transpired since the date of discharge.  The VA may also conduct periodic reevaluations for the purpose of adjusting the disability rating awards as the level of impairment from a given medical condition may vary [improve or worsen] over the lifetime of the veteran.

The complete advisory opinion is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent copies of the advisory opinions to the applicant on 25 Jun 20 for comment (Exhibit E), and the applicant replied on 5 Aug 20.  In her response, the applicant contends her struggles with mental health issues are well-documented in her military records, beginning from her diagnosis for anxiety in Apr 06 until her diagnosis for MDD in Dec 11.  A review of her medical records clearly shows that her MDD was impacting her ability to complete her military duties in a satisfactory manner.  Her MDD undoubtedly diminished her mental acuity and her ability to handle the stress and rigors of a military lifestyle.  Her inability to fulfill her duties as a financial comptroller are evident by her medical records, which should have been thoroughly reviewed by the IPEB and FPEB rather than being dismissed.  She should have a MEB and PEB conducted to determine that she should have been medically retired, or alternatively, to determine that she should have received a 40 percent disability rating rather than 20 percent.

The applicant’s complete response is at Exhibit F.

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 AFPC/DPFDD and the AFBCMR Psychological Advisor and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  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.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

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-2020-00309 in Executive Session on 4 Nov 20:

, Panel Chair
, Panel Member
, Panel Member

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

Exhibit A:	Application, DD Form 149, w/atchs, dated 13 Jan 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DPFDD, dated 26 Feb 20.
Exhibit D:	Advisory opinion, AFBCMR Psychological Advisor, dated 14 Apr 20.
Exhibit E:	Notification of advisory, SAF/MRBC to applicant, dated 25 Jun 20.
Exhibit F:	Applicant’s response, dated 5 Aug 20.
Exhibit G:	Consolidated clarifying guidance, various dates. 

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings pertaining to Docket Number BC-2020-00309, as required by AFI 36-2603, paragraph 4.11.9.