RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-00647

XXXXXXXXXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

1.  His discharge be changed to a medical retirement.

2.  He be reinstated in the grade of airman first class (E-3).

APPLICANT’S CONTENTIONS

The behavior that led to his involuntary separation was due to his misdiagnosed/mistreatment of a Traumatic Brain Injury (TBI) and Post Traumatic Stress Disorder (PTSD).  In October 2010, he was a passenger in an automobile accident and hit his head, sustaining minor lacerations and a TBI.  In the months following the accident, he experienced headaches, depression and strong feelings of hopelessness.  In March 2011, he was unable to cope with his condition and thought about taking his own life.  He barricaded himself in his residence and after a three-hour standoff with the police, he surrendered and was turned over to the military.  He was taken to the emergency room for an evaluation and was given a urinalysis in which he tested positive for cannabis.  He had started using cannabis as a way to cope with his condition.  The TBI, combined with the PTSD sustained during the standoff with the police, compromised his ability to make rational decisions before and after the incident.  He currently continues to struggle with headaches, suicidal thoughts and depression, which adversely impacts both his professional and personal relationships.

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

STATEMENT OF FACTS

The applicant is a former Air Force airman basic (E-1).

On 5 Jul 11, the applicant was notified of his commander’s intent to recommend that he be discharged from the Air Force, under the provisions of AFPD 36-32, Military Retirements and Separations and AFI 36-3208, Administrative Separation of Airmen, for drug abuse.  The specific reason for the action was that the applicant did between, on or about, 30 Mar 11 and 12 Apr 11, wrongfully use marijuana.  As a result of the misconduct, he received an Article 15, dated 17 May 11.  His punishment consisted of a reprimand, reduction to the grade of airman basic, and forfeiture of $678.00 of pay.

On 13 Jul 11, the discharge authority approved the administrative separation of the applicant with a general (under honorable conditions) service characterization.

On 26 Jul 11, the applicant was discharged with a general (under honorable conditions) character of service.  His narrative reason for separation is “Misconduct (Drug Abuse).”  He was credited with 2 years and 6 months of 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 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 F.

AIR FORCE EVALUATION

AFPC/DP2SPP recommends denying the applicant’s request to be reinstated to the grade of airman first class.  Based on the documentation provided by the applicant and analysis of the facts, there is no evidence of an error or injustice.  The applicant’s DD Form 214, Certificate of Release or Discharge from Active Duty, reflects the correct grade of airman basic, pay grade of E-1, and effective date of rank of 17 May 11.

The complete advisory opinion is at Exhibit C.

The AFBCMR Psychiatric Advisor recommends changing the applicant’s record to reflect that he underwent a Medical Evaluation Board (MEB) and was found unfit by a Physical Evaluation Board (PEB), with a disability rating of 30 percent under the Veterans Affairs Schedule for Rating Disabilities (VASRD) code 9434, with a permanent retirement effective 26 Jul 11.  Alternatively, the Board may elect granting relief in the context of the Liberal Consideration policy and upgrade the applicant’s discharge characterization to honorable and reason for discharge to “Secretarial Authority.”  The AFBCMR Psychiatric Advisor would like the Board to recognize that she is not in the position to provide a De Novo diagnosis for this applicant since she has never personally evaluated him, but merely highlights, that the applicant’s diagnosis was not consistent with the Diagnostic and Statistical Manual IV (DSMIV) criteria.  Ultimately, possible missed diagnosis or diagnoses had a very important implication in the discharge proceedings.  The applicant was diagnosed with an Adjustment Disorder, which was considered to be a disqualifying condition, but not a condition eligible for a MEB.  However, with the diagnosis of Depression, the applicant would most likely be referred for a MEB and if found “unfit,” potentially could get a medical discharge.  The Psychiatric Advisor states if a MEB had been conducted and referral was made for PEB review, the applicant's Depressive Disorder Not Otherwise Specified (NOS) more likely than not, would had been found unfitting.  Under the Integrated Disability Evaluation System, the PEB would have applied the ratings assigned by the Department of Veterans Affairs (DVA).  However, since DVA ratings were not available at the time of discharge, the Psychiatric Advisor relied on the clinical notes at the time of discharge.  The Psychiatric Advisor states the applicant’s assertion that his separation was a result of untreated TBI is inaccurate.  Diagnosis of mild TBI can be difficult because of the subjective nature of complaints and significant overlap with other conditions.  For example, symptoms associated with depression may overlap with symptoms of mild TBI, such as deficits in attention and memory, irritability and sleep disturbance.  However, even if it is presumed that diagnosis of TBI was overlooked at the time of his discharge, it would not automatically apply that it was “unfitting” during or at the time of release from military service.  Even though the DVA has acknowledged the applicant’s history of TBI, he was assigned a rating of zero percent, signifying minimal if any functional impairment.  Interestingly, despite current allegation of severe headaches, there is no evidence that the applicant had sought treatment.  Even though, the Board can certainly understand the reluctance to seek mental health treatment, it does not explain lack of medical treatment for headaches.  Finally, even if the applicant was concurrently suffering from a compensable and unfitting mental health illness at the time of his misconduct [drug abuse], by regulations, he would have still been confronted with a “dual-action” review by the Secretary of the Air Force Personnel Council; which would render him vulnerable for execution of the administrative discharge in lieu of a medical separation or retirement action.

The complete advisory opinion is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 29 Jun 20 for comment (Exhibit E), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was not timely filed, but it is in the interest of justice to excuse the delay.

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 the victim of an error or injustice.  The Board concurs with the rationale and recommendation of the AFBCMR Psychiatric Advisor and finds a preponderance of the evidence substantiates the applicant’s contentions in part.  Specifically, the applicant has provided a rating decision from the Department of Veterans Affairs indicating service connection for traumatic brain injury (TBI), which is sufficient to justify granting the applicant’s request to upgrade his discharge characterization to honorable and narrative reason to “Secretarial Authority” based on liberal consideration due to the applicant’s TBI diagnosis.  However, for the remainder of the applicant’s request, the evidence presented did not demonstrate an error or injustice, and the Board therefore finds no basis to recommend granting that portion of the applicant’s request.  Therefore, the Board recommends correcting the applicant’s records as indicated below.

RECOMMENDATION

The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show his DD Form 214, Certificate of Release or Discharge From Active Duty, issued in conjunction with his discharge on 26 July 2011, be amended to reflect he was honorably discharged with a narrative reason for separation of “Secretarial Authority” and a corresponding separation code of “JFF,” and that he be furnished an honorable discharge certificate.

However, regarding the remainder of the applicant’s request, the Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the application will only be reconsidered upon receipt of relevant evidence not already considered by the Board.

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-2020-00647 in Executive Session on 4 Nov 20:

, Panel Chair
, Panel Member
, Panel Member

All members voted to correct the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 7 Oct 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFPC/DP2SPP, dated 20 Mar 20.
Exhibit D:	Advisory opinion, AFBCMR Psychiatric Advisor, dated 21 Apr 20.
Exhibit E:	Notification of advisory, SAF/MRBC to applicant, dated 29 Jun 20.
Exhibit F:	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-2020-00647, as required by AFI 36-2603, paragraph 4.11.9.