RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-01646

XXXXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

1. Overturn AFRC/SG finding of medically qualified to return to duty with limitations.

2. He be returned to active duty effective 21 Dec 19, until the conclusion of the Integrated Disability Evaluation System (IDES) processing.

APPLICANT’S CONTENTIONS

He has not performed his primary duty as an Aircraft Expediter since 5 Mar 17, after an event during a Unit Training Assembly seriously deteriorated his ability to manage his Post-Traumatic Stress Disorder (PTSD).  The incident triggered a Command Directed Mental health evaluation.  He was referred to an intense outpatient program through the Department of Veteran’s affairs.  He requested to attend the program in military status; however, that request was denied.  He was removed from the flight line and precluded from performing his duties from 15 May 17 to 21 Sep 17.  He completed the program by taking leave from his federal civilian position.  Upon completion of the program, he trained his replacement from Nov 17 to Mar 18, again while in civilian status and remained in a no pay/no points status.  He was removed from the flight line and effective 2 Apr 18, he was permanently moved to Human Resources.

In Oct 18, his Line of Duty (LOD) determination was returned from the Air Force Reserve Center (AFRC).  This was due to the Center giving the responsibility to the commanders.  His unit returned the case back to AFRC in Dec 18.  His LOD was finalized on 30 Sep 19.  He was approved for Medical Continuation (MEDCON) orders on 28 Oct 19.  

On 10 Dec 19, AFRC found him fit for duty.  He was removed from his civilian position based on the same evidence AFRC/SG used to find him fit.  He cannot reasonably be expected to perform the military duties, as the base is less than a square mile, which makes it impossible for him to avoid any further triggers and his ability to manage his PTSD.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Reserve master sergeant.

On 30 Nov 20, the AFBCMR panel members deferred the adjudication of the applicant’s request, pending review and recommendation by subject matter experts.  

The relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility attached at Exhibits, C, D, and E. 

APPLICABLE AUTHORITY

A service member will be considered unfit when the evidence establishes that the member, due to disability, is unable to reasonably perform the duties of his office, grade, rank or rating, including those during a remaining period of Reserve obligation, DoD 1332.18, App 2, Encl 3.

AIR FORCE EVALUATION

AFRC/SGO and AFRC/SG3P defer to the appropriate agency to provide input for partial grant consideration for a waiver or an exception to policy (ETP), regarding the applicant’s request to overturn the decision made by AFRC/SGP.  Specifically, the consideration request for a waiver or ETP is in regards to the governing rule in Air Force Instruction (AFI) 36-2910, LOD, MEDCON and InCap Pay, that directs a member’s removal from MEDCON when returned to duty for an Informal Review in Lieu Of (IRILO) process.  This rule does not account for the fact members can in some instance in accordance with Air Force Manual (AFMAN) 41-210, TRICARE Operations and Patient Administration, be returned to duty while still in treatment.  Thus, the request for a waiver or an ETP consideration, if applicable.  

If a waiver or an ETP is unauthorized or unwarranted, based on the documentation provided and an analysis of the facts, there is no evidence of an error or injustice.  According to published policy, the IRILO was correctly processed and the correct authority adjudicated the case and discontinued the member’s MEDCON orders.     

On 10 Dec 19, the applicant underwent and completed initial review in lieu of processing.  He was found able to perform military duty and granted a retention waiver with assignment limitation code C3.  Accordingly, he was removed from MEDCON and did not warrant entrance into the IDES for an MEB.  The decision to terminate MEDCON was made by ARC-CMD in accordance with personnel policy.  AFRC/SGO made a medical waiver, which was not dependent on completion of treatment or full recovery.  The policy disconnect is that an IRILO can be submitted and adjudicated without completion of treatment if the outcome is predictable.  However, this impact ARC member’s eligibility to stay on MEDCON for treatment based on language in AFI 36-2910.   

The primary reason for the ALC waiver and return to duty resulted from the successful on-going treatment.  A clinical note dated, 13 Nov 19, from the applicant’s cognitive processing therapy sessions noted he became increasingly aware of how to cope with the images and memories that were considered triggers.  The clinical notes also state the applicant should have been allowed to stay in his position; however, the recommendation was to remove him from his environment because it was a trigger.  Ultimately, the decision to transfer or retrain a member rests with the commander.  The applicant would have been processed through an MEB if the IRILO had deemed him disqualified.  He never made it to an MEB therefore; it was never stopped or interrupted.

The complete advisory opinion is at Exhibit C.

The SAF/AFRBA Psychological Advisor recommends denying the application.  After reviewing the available records, there is insufficient evidence to support the applicant’s desired change to his records.  The advisor concurs with the original opinion rendered by AFRC/SGP for returning the applicant to duty and with the opinions of AFRC/SGO and AFRC/SG3P’s findings of no error with the original decision.

The applicant’s treatment notes reported that he was benefitting from treatment and was able to manage and be more aware of his triggers and symptoms.  He continued to receive treatment in Dec 19; however, treatment is typically focused on developing and using appropriate skills to manage triggers and stressors.  Symptoms may recur in varying degrees of severity despite being able to successfully complete a treatment modality, as is the case with the applicant.  He was able to manage them although the impact of his military duties cannot be assessed.  

The applicant elected to retire from service after receiving notice that he would be returned to duty.  He did not allow his leadership the opportunity to place him in a modified assignment to determine if he could continue to function in a military setting.  Hypothetically, had he not been able to function, he would have gone through another IRILO and then possibly entered into an MEB for a potential medical discharge or returned to duty.  The applicant received the diagnosis of PTSD; however, his condition never elevated to an unfitting condition meeting the criteria for an MEB or medical discharge.  

While the applicant contends that he should receive a MEB/medical discharge for PTSD, an IRILO review found his condition of PTSD as fitting for continued service and he could return to duty.  The applicant elected to retire; therefore, his mental health condition does not excuse or mitigate his separation.  Moreover, the applicant does not have any unfitting mental health conditions to include PTSD that would provide him with a medical discharge/retirement.

The complete advisory opinion is at Exhibit D.

AFPC/DPFA recommends denying the application.  Based on the documentation provided and an analysis of the facts there is no evidence of an error or injustice.  The applicant’s orders were curtailed when he was found fit for duty with an assignment limitation code of C3 in accordance with AFI 36-2910.  The applicant requested a review of his return to duty determination; however, AFRC/SGO upheld the initial decision.  

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 1 Jul 21 for comment (Exhibit F), and on 28 Jul 21, the applicant responded via a sworn declaration.  In his response, the applicant argues that the OPRs came to the wrong conclusion based on the same evidence that others have used to come to a very different conclusion.  As such, the applicant reiterates that as an Air Reserve Technician (ART), if he is not qualified to perform the duties of his civilian position, then he is not qualified to perform the duties as a Reservist.  How is it then, that he is found unfit for duty to perform the same functions as a civilian, but yet fit to perform those functions as a military member.  Furthermore, the reason he voluntarily retired, was due to a discussion with his Superintendent, who told him that waiting for something to happen, instead of deciding the terms could potentially be harmful to him and his family, so therefore, he did not limit his command an opportunity to place him in a modified duty assignment.    He asks the Board to grant his request because the original case evidence and the facts that he has corrected from the OPR recommendations point to an error.  

The applicant’s complete response is at Exhibit G.

 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 recommendations noted in each advisory opinion, finding a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board recognizes the applicant’s argument of being found unfit to perform duties in his Air Reserve Technician (ART) position in a civilian status, thereby should warrant him unfit in his military status.  However, the Board cannot comment on the reasons why he was found unfit in his civilian capacity, as it is not within the Board’s scope or authority.  As such, when reviewing the applicant’s fitness for duty determination, the Board found his process through the medical evaluation system done properly and there is no error or injustice in the AFRC’s Initial Review in-lieu of (IRILO) medical evaluation, their determination or their findings.  As such, the applicant was properly given an assignment limitation code C3, was returned to duty, and has provided insufficient evidence to prove that this finding is improper.  Furthermore, it is possible that while the applicant did not feel as if he could perform the duties of his current position, it is possible that he could have been assigned a different position or even cross-trained into a career field that was more suiting.  However, after the applicant was notified of his fit-for-duty determination, he voluntarily elected to retire and has since been placed on the Reserve retirement list.  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-2020-01646 in Executive Session on 30 Nov 20 and 30 Nov 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 10 Jan 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFRC/SGO and AFRC/SG3P, dated 2 Mar 21.
Exhibit D:	Advisory opinion, SAF/AFRBA Psychological Advisor, dated 3 Mar 21.
Exhibit E:	Advisory opinion, AFPC/DPFA, dated 7 Apr 21.
Exhibit F:	Notification of advisory, SAF/MRBC to applicant, dated 1 Jul 21.
Exhibit G:	Applicant’s response, dated 28 Jul 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.