RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-02174

	COUNSEL: NONE
	
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

1. His Honorable discharge be changed to Honorable – Separated Under Medical Conditions.

2. His grade at the time of discharge be upgraded to staff sergeant (E-5) versus senior airman (E-4). 

3. His DD Form 214, Certificate of Release or Discharge from Active Duty and NGB Form 22, Report of Separation and Record of Service, be corrected to reflect Air Force Specialty Code (AFSC) 3P051, Security Forces Journeyman vs. 3P031, Security Forces Specialist. (DD Form 214 Administratively corrected and NGB Form 22 already reflects the requested change).

APPLICANT’S CONTENTIONS

He was in a motor vehicle accident (MVA) on 26 Feb 06 and the injuries were catastrophic leaving him permanently disabled.  The injuries were the actual cause of his separation from military service and should have been reflected in his discharge.  Additionally, he was diagnosed with Post-Traumatic Stress Disorder (PTSD) and Major Depressive Disorder (MDD) by the Department of Veterans Affairs (DVA) due to exposure to traumatic events during his military service.

He met all requirements for promotion to staff sergeant but was passed over for promotion because he was in an overage slot.  Some of his forms refer to his grade as staff sergeant while others reflect senior airman.

His AFSC listed on the DD Form 214 and NGB 22 do not reflect the appropriate law enforcement authorities for which his AFSC granted and prevents him from attaining Law Enforcement Officers Safety Act (LEOSA) credentials.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an honorably discharged Air Force Reserve senior airman (E-4).

On 2 Jan 01, the applicant was issued a DD Form 214 for the period 15 Aug 00 to 2 Jan 01, and blocks 4a and 4b reflects rank and grade as airman basic and E-1 respectively, and block 11 reflects primary specialty as 3P031, Security Forces Apprentice, with discharge reason of completion of initial active duty training and transferred to the Air Force Reserve.

On 1 Nov 01, according to Reserve Order P-006, the applicant was promoted to airman first class.

Between 14 Mar 02 and 26 Jun 02, according to AF Form 104, Service Medal Award Verification, dated 28 Oct 02, the applicant served in support of Operation SOUTHERN WATCH at Al Jabar, Kuwait.

On 1 Sep 02, according to Reserve Order P-239, the applicant was promoted to senior airman.

On 28 Jan 03, the applicant was issued a DD Form 214 for the period of 1 Oct 01 to 28 Jan 03, and blocks 4a and 4b reflects rank and grade as senior airman and E-4 respectively, and block 11, reflects primary specialty as 3P051, Security Forces Specialist, with discharge reason of demobilization from active duty and transferred to the Air Force Reserve.

On 11 Jul 03, the applicant was issued an annual point credit summary and his rank is indicated as “SGT”.

On 4 Aug 04, according to Reserve Order A-013, the applicant was honorably discharged at the grade of senior airman.

On 1 Oct 05, according to Special Order A-203, dated 30 Sep 06, the applicant was honorably discharged from the Air National Guard (ANG) and transferred to the Individual Ready Reserve (IRR) effective 2 Oct 05.

On 2 Oct 05, according to NGB Form 22, blocks 5a and 5b the applicant’s rank and grade is reflected as senior airman and E-4 respectively, and in block 13, the primary specialty is reflected as 3P051, Security Forces Journeyman.

On 9 May 08, according to Reserve Order CA-008000, dated 13 May 08, the applicant was permanently discharged from service with the Air Force Reserve under AFI 36-3209, Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members, at the grade  of senior airman.

On 16 Jan 20, according to a Department of Veterans Affairs (DVA) letter provided by the applicant, the DVA assigned the applicant a combined service-connected evaluation of 100 percent effective 26 Sep 18.

On 24 Feb 21, the applicant was issued a corrected DD Form 214 for the period 15 Aug 00 to 2 Jan 01, with corrections made to blocks 4a and 4b, changing his rank and grade to airman and E2 respectively, and block 11, changing his primary specialty to 3P051, Security Forces Journeyman.

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

APPLICABLE AUTHORITY

The Military Disability Evaluation System (DES), established to maintain a fit and vital fighting force, can by law, under Title 10, United States Code (USC), only offer compensation for those service incurred diseases or injuries which specifically rendered a member unfit for continued 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.  DoDI 1332.32, Physical Disability Evaluation, reads “A Service member shall be considered unfit when the evidence establishes that the member, due to physical disability, is unable to reasonably perform the duties of his or her office, grade, rank or rating.”

The Department of Defense (DoD) and the Department of Veterans Affairs (DVA), disability evaluation systems (DES) operate under two separate laws.  Under Title 10, United States Code, Physical Evaluation Boards (PEBs) 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 EVALUATIONS

The BCMR Psychological Advisor finds insufficient evidence to support the applicant’s request for a medical separation based on his mental health conditions. However, the Board may elect to apply liberal consideration due to contended mental health conditions.

The applicant’s military personnel records were scarce, but there were reports he was activated for one year starting on 23 Oct 01 and received an Armed Forces Expeditionary Medal in support of Operation SOUTHERN WATCH in Kuwait for the service period of 14 Mar 02 to 26 Jun 02. This information would substantiate his report to the DVA that he served in Kuwait. The applicant contends he developed PTSD and MDD from this deployment/military experience. There were no records or evidence corroborating he sought mental health treatment or was given diagnoses for any of these issues after returning from Kuwait. He reported to the DVA he received counseling and psychiatric medication for his condition intermittently since 2004; however, the applicant did not submit any records to verify this treatment history. Complicating matters further is there are no records he received a Line of Duty (LOD) determination for his mental health condition developed from his activated military service since he was a Reservist at the time. There are no records indicating he had any potentially unfitting mental health conditions that may be referred to the Medical Evaluation Board for a medical separation. 

The applicant reported he was in a MVA on 26 Feb 06.  There are no records that the applicant was on orders at the time of this incident and in fact, medical records the applicant submitted, dated on 9 Jul 07 reported, “[applicant] states he had been employed with the U.S. Department of Veteran’s Affairs as a Police Officer at the time he reportedly sustained his injuries.” The applicant’s MVA did not occur in the line of duty, was not caused by his military duties, and no evidence his military service aggravated his mental health condition causing his career termination with the military.

The complete advisory opinion is at Exhibit C.

The BCMR Medical Advisor opines the applicant has not met the burden of proof to grant a medical discharge.  There is no evidence the applicant’s injuries were In Line of Duty (ILOD) nor eligible for a compensable military disability separation or retirement.  In order for the applicant to receive a medical separation, there must be evidence that a given medical condition prevented him from performing the duties of his military office, grade, rank, or rating; to the extent and duration [not expected to improve or resolve] that triggered permanent duty and mobility restrictions, as would be depicted on a legacy AF Form 422, Physical Profile Serial Report, or a contemporaneous AF Form 469, Duty Limiting Condition Report. No such document or military service evidence is supplied.  Moreover, the medical condition [illness or injury], must be found ILOD; that is, if it occurred during period of serving 30 days or less, it must be either caused by, aggravated by, or the proximate result of performing military duties. If the injury or illness occurred during a period of service of 31 days or more [active status], it must neither be the result of misconduct nor occurred during a period of absence without official leave.

The complete advisory opinion is at Exhibit D.

ARPC/DPTS recommends denying the applicant’s request to correct his DD Form 214 indicating the events happened outside the timeframe of the DD Form 214 and the applicant’s duty history does not show a grade received higher than senior airman.

However, after careful review of the applicant’s records, the following changes were made and a DD Form 215, Correction to DD Form 214, Certificate of Release or Discharge from Active Duty, was accomplished: Block 4a changed from airman basic (AB) to senior airman (SrA), Block 4b changed from E-1 to E-4, and Block 11 changed from 3P031, Security Forces Apprentice to 3P051, Security Forces Journeyman.

The complete advisory opinion is at Exhibit F.

APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS

The Board sent a copy of the advisory opinion to the applicant on 27 Jan 21 for comment (Exhibit G), but has received no response.

ADDITIONAL AIR FORCE EVALUATION

ARPC/DPTS provided a corrected advisory opinion but still recommended denying the applicant’s request to correct his DD Form 214, dated 28 Jan 03, indicating the changes are outside the timeframe of the DD Form 214; he does not meet the eligibility criteria for any subsequent DD Forms 214. To be eligible for a DD Form 214, Air National Guard and Air Force Reserve members must have completed orders of 90 consecutive days or more of active duty service or 30 days or more of active duty service in support of a named contingency operation.

The corrected advisory changes the applicant’s DD Form 214, dated 2 Jan 01 as follows: Block 4a was changed from airman basic (AB) to airman (AMN), Block 4b was changed from E-1 to E-2, and Block 11 was changed from 3P031, Security Forces Apprentice to 3P051, Security Forces Journeyman.

The complete advisory opinion is at Exhibit H.

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION

The Board sent a copy of the additional advisory opinion to the applicant on 24 Feb 21 for comment (Exhibit I), 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 recommendations of the Psychological  and Medical Advisors and with ARPC/DPTS and finds a preponderance of the evidence does not substantiate the applicant’s contentions beyond what was already administratively corrected.  However, if the applicant were to provide any evidence corroborating he sought mental health treatment or was given a diagnoses for any of these issues after returning from Kuwait or information that he received counseling and psychiatric medication for his condition intermittently since 2004, the Board will reconsider his request.  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-2020-02174 in Executive Session on 28 Apr 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 27 Jul 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, BCMR Psychological Advisor, dated 23 Sep 20.
Exhibit D:	Advisory opinion, BCMR Medical Advisor, dated 9 Oct 20.
Exhibit E: Notification of Clarifying Guidance, dated 15 Dec 20.
Exhibit F:	Advisory opinion, ARPC/DPTS, w/atchs, dated 19 Jan 21.
Exhibit G:	Notification of advisories, SAF/MRBC to applicant, dated 27 Jan 21.
Exhibit H:	Advisory opinion, ARPC/DPTS, w/atchs, dated 24 Feb 21.
Exhibit I:	Notification of advisory, SAF/MRBC to applicant, dated 24 Feb 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.