RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-01470

XXXX	COUNSEL: XXXX
	
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

He be inserted into the Integrated Disability Evaluation System (IDES) and medically retired.

APPLICANT’S CONTENTIONS

The applicant, through counsel, attempted to transfer to the Air Force Reserve prior to his separation from the Regular Air Force but the Office of the Air Force Surgeon General disapproved the transfer and determined he did not meet Air Force medical standards for his diagnosed spine and extremity injuries and psychiatry and mental health condition.  The Air Force proceeded to separate the applicant without IDES processing and he objected indicating, through counsel, that he could not be concurrently found fit for separation and be medically disqualified for reserve service at the same time and IDES processing was required based on his non-deployable status and multiple disqualifying diagnosed medical conditions.  On 23 Aug 19, the Department of Veterans Affairs (VA) rated him 90% disabled based on multiple diagnoses and on 18 Nov 19 he was discharged without IDES processing.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an honorably discharged Air Force staff sergeant (E-5).

On 19 Nov 13, according to DD Form 4, Enlistment/Reenlistment Document Armed Forces of the United States, the applicant enlisted in the Regular Air Force for a period of 6 years.

On 14 Aug 19, the applicant signed DD Form 2648, Service Member Pre-Separation/Transition Counseling and Career Readiness Standards EFORM for Service Members Separating, Retiring, Released from Active Duty (REFRAD), and block 7b, Type of Separation, reflects “separating voluntarily.”

On 23 Aug 19, the applicant was issued AF Form 422, Notification of Air Force Member’s Qualification Status, with comments, “member does not possess an assignment limitation code (ALC) and is world-wide qualified (WWO) and medically qualified for continued military service in the Reserve.  This medical clearance only clears this Airman to apply for the Palace Chase/Palace Front program, it does not constitute acceptance by the applicable Air Reserve Center (ARC).  Only the gaining Reserve/Guard Medical Unit or AFRC/ANG Medical Standards Division may certify and/or waive a member for entry.”

On 16 Sep 19, the applicant underwent Separation History and Physical Examination (SHPE) and was medically cleared for separation.

On 18 Nov 19, according to DD Form 214, Certificate of Release or Discharge from Active Duty, the applicant was discharged with narrative reason, “completion of required active service,” and credited with 6 years active service.

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

APPLICABLE AUTHORITY

The Department of Defense (DoD) and the Department of Veterans Affairs (DVA) disability evaluation systems operate under two separate laws.  Under Title 10, United States Code, Physical Evaluation Boards must determine if a member's condition renders them unfit for continued military service relating to their office, grade, rank or rating.  The fact that a person may have a medical condition does not mean the condition is unfitting for continued military service.  To be unfitting, the condition must be such that it alone precludes the member from fulfilling their military duties.  If the board renders a finding of unfit, the law provides appropriate compensation due to the premature termination of their career.  Further, it must be noted the AF disability boards must rate disabilities based on the member's condition at the time of evaluation; in essence a snapshot of their condition at that time.  It is the charge of the DVA to pick up where the AF must, by law, leave off.  Under Title 38, the DVA may rate any service-connected condition based upon future employability or reevaluate based on changes in the severity of a condition.  This often results in different ratings by the two agencies.

On 3 Sep 14, the Secretary of Defense issued a memorandum providing guidance to military correction boards regarding liberal consideration for Vietnam veterans claiming Post Traumatic Stress Disorder PTSD (Hagel Memo).  In addition, time limits to reconsider decisions would be liberally waived for applications covered by this guidance. 

Subsequent guidance expanded liberal consideration protections to include all veterans who requested a modification of their discharge, to include character of service, narrative reason for discharge and reenlistment code, due in whole or in part to any mental health condition rather than just PTSD or Traumatic Brain Injury, and included those veterans who were victims of sexual assault or sexual harassment.  Liberal consideration would 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?

Copies of all guidance memoranda can be found at Exhibit E.

AIR FORCE EVALUATION

BCMR Medical and Psychological Advisors recommend denying the applicant’s request for insertion into the IDES.  Liberal consideration is applied to the applicant’s request due to a contended mental health condition, PTSD.

Given factors for determining unfitness and overwhelming service objective evidence there was no impediment to the applicant’s ability, as a Personnel Craftsman, to perform the duties of his office, grade, rank, or rating.  Moreover, none of the applicant’s military providers opined that any of the applicant’s medical conditions, neither PTSD, migraine headache, nor any of his musculoskeletal complaints, warranted a medical basis for career termination.

The Medical Advisor concedes that the applicant’s counsel has identified a potential recurring problem in comparative understanding of retention standards, as relates to the Palace Chase program; that is, finding an active duty member medically qualified to separate or to apply for transfer to the Reserve who, in relative short order, is medically disqualified and denied entry to the Reserve for same medical conditions that existed prior to the attempted transfer.  Although cleared to apply for transfer by the active component, “the appropriate ARC/SGP must coordinate on all Palace Chase/Palace Chase Front assignment actions into the RC prior to final approval, in accordance with AFI 41-210, TRICARE Operations and Patient Administration Functions.  This is an area that warrants higher headquarters review and education of the force.

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 19 Aug 20 and on 17 Mar 21 for comment (Exhibit D), and the applicant replied on 28 Mar 21.  Through counsel, the applicant contended the advisor recommends denial of relief, but in the same breadth, acknowledges that an inequity exists that “warrants higher headquarters review and education of the force.”  The advisor concluded the Air Force improperly denied the applicant entry into the reserve component where it found him unfit for service.  The advisor cannot have it both ways. Either there was a mistake made when the applicant was not inserted into the IDES while on active duty, or there was a mistake made when the applicant was denied entry into the reserve component for medical unfitness.  Either way, relief is warranted. Liberal consideration is to be given in his case.

The applicant’s complete response is at Exhibit F.

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 and Psychological Advisors and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board considered liberal consideration and believes the applicant’s medical condition is not warranted to process through DES as a matter of equity or good conscience IAW DoDI 1332.18, Disability Evaluation System, Appendix 1 to Enclosure 3, paragraph 4.  Specifically, the applicant’s PTSD was not a medical basis for career termination nor entry into IDES.  The Board also notes the applicant’s response and does not find it to persuade our decision.  Therefore, the Board 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 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-2020-01470 in Executive Session on 18 Nov 20 and 31 Mar 21:

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 19.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, BCMR Medical and Psychological advisors,
		dated 23 Jun 20.
Exhibit D:	Notification of advisory, SAF/MRBC to applicant, dated 19 Aug 20 and 
		17 Mar 21.
Exhibit E:	Notification of Clarifying Guidance to applicant, dated 25 Mar 21.
Exhibit F:	Applicant’s response, dated 28 Mar 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.