RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-00546

XXXXXXXX	COUNSEL: NONE
	
	HEARING REQUESTED: NO

APPLICANT’S REQUEST

He receive a medical retirement and all back pay and benefits.

APPLICANT’S CONTENTIONS

In 1959, he was assigned to Kunsan AB, Korea, where he was exposed to Agent Orange.  On a return mission from Vietnam he was involved in an aircraft crash and suffered injuries to his head, face, left hand, and abrasions/contusions.  His commander ordered him not to discuss what occurred in Vietnam, but to say he was in a bicycle accident.  He was sent to Wright Patterson Air Force Base, Ohio for a medical and mental evaluation, and was offered a 100% medical retirement, but he did not want to be labeled as disabled.  He was later transferred to a missile site where he developed a burning sensation on his left arm while inspecting one of the missiles.  After noticing orange smoke, the base was evacuated for fear of a nuclear explosion.  The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Regular Air Force airman second class (E-2), and served honorably from 23 Mar 59 to 3 Dec 62.

The DD Form 113, Military Pay Record, reflects he was assigned to Air Post Office (APO) 64 from 29 Feb 60 to 1 Oct 60.  

The DD Form 113 reflects the applicant received physical disability severance pay in 1962. 

The DD Form 214, Armed Forces of the United States Report of Transfer or Discharge, provided by the applicant, Item 24.c., Foreign and/or Sea Service, reflects 1 year, 1 month and 1 day.

On 11 Nov 20, AFPC/DP3AM informed the applicant they were able to verify his boots-on-ground service in the Republic of Korea, from 29 Feb 60 to 1 Oct 60, for 7 months and 3 days, and the foreign service listed on his DD Form 214 is correct.  Since specific locations are not listed on the DD Form 214, the applicant was instructed to use the letter as proof of his boots-on-ground in Korea. 

The applicant’s Master Human Resource Records from National Personnel Records Center (NPRC) contained only minimal documents.  A letter from NPRC, dated 19 Mar 20, indicates the applicant’s records may have been destroyed by the fire on 12 Jul 73.  There is insufficient documentation to determine if the applicant is authorized a medical retirement.

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

APPLICABLE AUTHORITY

Under DoDI 1332.18, Disability Evaluation System (DES), “The Secretary of the Military Department concerned must cite objective evidence in the record, as distinguished from personal opinion, speculation, or conjecture, to determine if a Service member is unfit because of disability.”  Additionally, “With the exception of presumption of fitness cases, the Secretary of the Military Department concerned will determine fitness or unfitness for military service on the basis of the preponderance of the objective evidence in the record.”

AIR FORCE EVALUATION

The BMCR Medical Advisor opines the applicant has not met the burden of proof or error or injustice that warrants the desired change of the record.  The military Disability Evaluation System (DES), established to maintain a fit and vital fighting force, can by law, 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 time of separation and not based on future occurrences.  Although the applicant has presented a plausible story of his traumatic experiences during military service, there is no objective evidence upon which to assess his fitness to serve at or about the time of his discharge.  There is no objective evidence, through service treatment records or declining duty performance, to determine that the applicant was unable to reasonably perform the duties of his office, grade, rank, or rating at the time of discharge.  Furthermore, there is no evidence of profile restrictions imposed prohibiting worldwide qualification due to a mental or physical impairment. 

Operating under a different set of laws, Title 38, U.S.C., the Department of Veterans Affairs (DVA) is authorized to offer compensation for any medical condition determined service-incurred, without regard to its demonstrated or proven impact upon a service member’s retainability, fitness to serve, the narrative reason for separation, or length of time transpired since date of discharge.  Title 38, U.S.C., was written to allow awarding compensation ratings for conditions that were determined service-connected, to include Agent Orange presumptive conditions, but were not proven militarily unfitting at the time of release from military service.  

Given the applicant’s claim involves a mental health condition, the Medical Advisor provides the following responses to questions with regards to “liberal consideration” of his petition.  There is no evidence that a mental impairment caused or resulted in an errant or unjust reason for discharge.  Although no objective service evidence is supplied, the fact that the DVA has assigned service-connection for Post-Traumatic Stress Disorder (PTSD) is an indicator that his mental diagnosis was determined, at least as likely as not, related to his military service.  The applicant allegedly voluntarily chose to decline a medical retirement, in order to fulfill his service commitment.  There is no objective evidence of a functional psychiatric impairment at the time of discharge, to determine whether such diagnosis outweighed the established reason for discharge. 

The Board is empowered to give “liberal consideration” in granting the applicant’s petition.  However, the delayed submission of the applicant’s petition and that lack of objective service documentation makes it impossible to make an objective de facto or post facto determination of his fitness or unfitness to serve.  While the DVA has granted service-connection for PTSD, the fact that he was rated 0%, albeit effective the day after date of discharge, is an attestation that there was no objective evidence upon which to determine or quantify any level of impairment present at the time of discharge.  The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 2 Feb 21 for comment (Exhibit D), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was 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 BCMR Medical Advisor and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  There was no objective evidence indicating injuries were found to be sustained and medically disqualifying at the time of discharge.  Therefore, the Board recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, 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-2020-00546 in Executive Session on 29 Sep 20 and 13 Apr 21:

, Chair, AFBCMR
, 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 14 Nov 19.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, BCMR Medical Advisor, dated 15 Jan 21.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 2 Feb 21.

Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings regarding AFBCMR Docket Number BC-2020-00546, as required by AFI 36-2603, paragraph 4.11.9.