RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-02613

XXXXXXXXXXXXXX	COUNSEL: NONE	 

	HEARING REQUESTED: YES	

APPLICANT’S REQUEST

He be medically retired or reinstated in the Air Force Reserve.

His grade reflect technical sergeant (E-6).  

APPLICANT’S CONTENTIONS

He served 18 years and 8 months and should have been medically retired in accordance with AFI 36-3212, Physical Evaluation for Retention, Retirement and Separation.  

While in status on 25 Feb 19, he was treated for post-traumatic stress disorder (PTSD), obstructive sleep apnea (OSA), lumbosacral strain with degenerative arthritis, cervical spine strain and costochondritis.  The medical continuation (MEDCON) personnel were confused as to why he was not scheduled for a medical evaluation board (MEB) per AFI 36-3212.  

He was told he could continue his service with another branch with his honorable discharge; however, due to his medical conditions he has been denied reenlistment.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force Reserve staff sergeant (E-5).  

Per Reserve Order P-227 dated 28 Aug 14, the applicant was promoted to the grade of technical sergeant, with date of rank (DOR) and effective date of promotion of 1 Sep 14.  

The applicant provides AF Form 418, Selective Reenlistment Program (SRB) Consideration for Airmen, dated 1 May 19.  It shows he was not selected for reenlistment due to the following reasons:  (1) A pending demotion action, (2) Letter of Reprimand (LOR), (3) Pending investigation by security forces, (4) An Unfavorable Information File (UIF), (5) Suspended security clearance due to failure in meeting financial obligations, (6) Re-occurring government travel card (GTC) issues, (7) Failure to complete a fitness assessment (FA) since 2014 and only passing two FAs in the 10 years; a prior reenlistment denial in 2013, (8) Failure to progress as a noncommissioned officer (NCO), (9) Inconsistencies with his home of record (HOR) and (10) Making false statements to supervision.  The applicant appealed the denial of reenlistment and provided a response memorandum addressing the reasons for the denial of reenlistment.  On 16 Aug 19, his appeal was denied.  

AF Form 2098, Duty Status Change, dated 5 Apr 19, shows the applicant was absent without leave (AWOL) from 23 Mar 19 to 31 Mar 19.  He remained missing until he reported for duty on 1 Apr 19.  He was on MEDCON orders and his request to take leave was denied.  However, he did not report for duty and remained missing.  The unit attempted to contact him via phone, social media, family and friends but he did not respond until he reported for duty on 1 Apr 19.  

Reserve Order A-080 dated 11 Jun 19 shows the applicant was administratively demoted to the grade of staff sergeant with DOR and effective date of 11 Jun 19.

The applicant performed a period of active duty service from 11 Feb 19 to 29 Nov 19 and was honorably released from active duty with a narrative reason for separation of “Completion of Required Active Service.”  He was credited with 9 months and 19 days of active duty service, 3 years, 5 months and 20 days of prior active duty service and 14 years, 3 months and 12 days of prior inactive service.  

Per Reserve Order A-040 dated 21 Nov 19, the applicant was honorably discharged from the Air Force Reserve on 6 Dec 19 with reenlistment eligibility status “AFR Not Selected.”  Remarks state he reached his expiration term of service (ETS).  

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

APPLICABLE AUTHORITY

On 25 Jul 18, the Under Secretary of Defense issued supplemental guidance (Wilke Memo) to military corrections boards in determining whether relief is warranted based on equity, injustice, or clemency.  These standards authorize the Board to grant relief in order to ensure fundamental fairness.  Clemency refers to relief specifically granted from a criminal sentence and is a part of the broad authority Boards have to ensure fundamental fairness.  This guidance applies to more than clemency from sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds.  In determining whether to grant relief based on equity, an injustice, or clemency grounds, the Board should refer to the supplemental guidance.  This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  Each case will be assessed on its own merits.  The relative weight of each principle and whether the principle supports relief in a particular case are within the sound discretion of each Board (Exhibit D).  

Air Force Instruction 36-2606, Reenlistment and Extension of Enlistment in the United States Air Force, paragraph 7.2.9 Non-selection for Reenlistment.  The supervisor recommends the member not be selected for reenlistment and forwards it to the unit commander.  The unit commander reviews the AF Form 418 and notifies the airman.  If the airman appeals, the unit commander will coordinate with the senior Reserve commander and an appeal board is convened.  The senior Reserve commander will review all documentation from the appeal board and either uphold the commander’s non-selection or approve the member’s appeal.  

AIR FORCE EVALUATION

The BCMR Psychological Advisor finds insufficient evidence to support the desired change to his records.  The applicant’s mental health treatment records reported he sought mental health treatment through the Veterans Affairs (VA) starting on 27 Nov 18 for having home and occupational problems resulting in increased anger, irritability and isolation.  He also reported having trauma from his military duties as a mortuary team member.  He received diagnoses of post-traumatic stress disorder (PTSD) and alcohol use disorder.  He received prolonged exposure treatment for PTSD from 7 Aug 19 to 5 Dec 19 and minimal progress was reported.  His last encounter with the VA for mental treatment was 26 Oct 20.  

On 30 Sep 19, a mental health narrative summary (NARSUM) for the MEB was completed.  Since exposure to the traumatic experience, he would have nightmares daily and was unable to perform his civilian job duties as a chef.  The applicant was in treatment and the effectiveness of his treatment and prognosis could not be determined at the time.  Thus, he was returned to duty in order to allow additional time in treatment and to be re-evaluated later for fitness for duty at his commander’s discretion.  There is no evidence his mental health condition caused any of his misconduct.  His most serious misconduct of being AWOL was due to him taking unapproved leave.  He was aware he was denied leave but had a non-refundable plane ticket to spend time with his children.  Despite being declared AWOL and his misconduct, his commander elected to give him an honorable discharge, which could have resulted in a less desirable discharge.  

The applicant contends he was denied to transfer to another branch due to his medical and mental health conditions.  Although one can continue to serve with potentially unfitting conditions, accession standards still applies and he would have to meet the standards.  He did not meet accession standards but this does not indicate he should have received an MEB or medical discharge.  

The Military’s Disability Evaluation System (DES), established to maintain a fit and vital fighting force, can by law, under 10 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 “snapshot” in time of separation and not based on post-service progression of disease or injury.  The VA, operating under a different set of law, 38 U.S.C. is empowered to offer compensation for any medical condition with an established nexus with military service, without regard to its impact upon a member’s fitness to service.  

The Board may elect to apply liberal consideration to the applicant’s request due to the contention of mental health.  There is evidence he was diagnosed with PTSD and received a line of duty determination (LOD) for PTSD from his military duties.  However, there is no evidence he had any unfitting mental health conditions to include PTSD that would meet criteria for a referral to the MEB for a medical discharge or retirement.  There is also no evidence his mental health condition or experience caused or mitigated his misconduct leading to his commander denying him eligibility for reenlistment.  Since there is no evidence his mental health condition of PTSD was unfitting or mitigated his misconduct, his condition or experience does not outweigh his original discharge.  

The complete advisory opinion is at Exhibit C.

The BCMR Medical Advisor found no evidence to warrant the desired changes of the record.  In Sep 06, the applicant was temporarily exempted from the run/walk components of the FA after twisting his right knee from slipping on a wet kitchen floor.  In Feb 10, he sustained a left knee injury after slipping on ice.  On 9 Apr 10, he was placed on a 60 day profile after presenting with an ankle injury.  He was diagnosed with Achilles strain, which required orthopedic follow-up through Oct 10.  On 31 Mar 11, he reinjured his right knee while running on the treadmill, and was temporarily exempted from the one mile run/walk, sit-ups, and pushups.  In Nov 12, he presented with right knee pain and was diagnosed with mild patellofemoral chondromalacia and grade II sprain/partial tear of the anterior cruciate ligament.  He was issued another period of temporary FA restrictions from 1 Dec 12 through 1 May 13 per AF Form 469, Duty Limiting Condition Report.  On 3 Aug 13, he presented with an undefined back injury, which exempted him from the FA for one month.  On 27 Aug 14, he was evaluated and treated for an injury to the right hand requiring surgical fixation, with a recommendation for no physical activities requiring use of his right hand for 12 weeks.  On 11 Feb 19, the applicant was involved in a motor vehicle accident where he struck a deer head on.  He had complaints of neck, back and knee pain.  He was seen by physical therapy and a medical note dated 5 Mar 19 states he had since improved but continued to have low back pain with prolonged sitting and forward flexion.

On 6 Mar 19, the applicant signed his letter of acknowledgment for placement on MEDCON, indicating his understanding of regulatory policies.  The record is unclear of the diagnosis under consideration of MEDCON, albeit in proximity of the vehicular accident.  On 22 Aug 19, the applicant was scheduled for a worldwide duty evaluation.  A MEB NARSUM dated 30 Sep 19 was completed by mental health.  The NARSUM is reflective of the applicant’s instance of AWOL stating there was confusion with respect to leave while on MEDCON orders.  The provider opined he was not deployable at the time but that he should be re-evaluated.  

With respect to his medical conditions of OSA, lumbosacral strain with degenerative arthritis, cervical spine strain and costochondritis, there is no service evidence that these conditions precluded him from performing the duties of his office, grade, rank or rating for up to 365 days and required a MEB/physical evaluation board (PEB) processing. In this respect, none of the duty limiting conditions in the applicant’s record exceeded duty or mobility limitations for more than 6 months and were intended to be only temporary.  Nonetheless, the applicant’s OSA and somatic issues were never presented before a deployment availability working group (DAWG).  Without necessary objective evidence, finding either of these conditions unfitting would be based on speculation and conjecture.  Moreover, although he had musculoskeletal complaints following his motor vehicle accident, there is evidence that neither of his somatic complaints would form a basis for career termination, but not for the denial of reenlistment. Under AFI 36-3212, the mere presence of a physical defect or condition does not qualify a member for disability retirement or discharge.  

Although he did not receive a less than honorable discharge, the Board may consider potential for other factors (race, age, gender, Air Force specialty code) in the commander’s decision to deny reenlistment given his otherwise positive service history.  

The complete advisory is at Exhibit E

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent copies of the advisory opinions to the applicant on 1 Mar 21 for comment (Exhibit F), 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 BCMR Psychological and Medical Advisors and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board does not dispute the applicant was diagnosed with PTSD while in service; however, there is no evidence his mental health or medical conditions precluded him from performing his duties or that he was unjustly denied a MEB/PEB.  In this respect, the applicant’s NARSUM dated 30 Sep 19 shows the applicant was diagnosed with PTSD and not currently worldwide qualified; however, he was returned to duty with a recommendation for observation while undergoing treatment.  Subsequently, the applicant was non-selected for reenlistment and separated upon his ETS.  Furthermore, as pointed out by the BCMR Medical Advisor, the applicant’s duty limiting conditions and mobility limitations were only temporary, not exceeding six months, and did not require referral for MEB/PEB consideration.  With respect to liberal consideration, the Board finds no evidence his mental health or medical conditions caused or were mitigating factors in his misconduct.  Based on a review of the AF Form 418 provided by the applicant, it appears the denial of reenlistment was in accordance with AFI 36-2606.  In view of the above, the Board finds insufficient rationale to grant the applicant a medical retirement or reinstate him in the Air Force Reserve.  With respect to the applicant’s request that his record be changed to show his grade as technical sergeant, the applicant was demoted to the grade of staff sergeant per Reserve Order A-080 dated 11 Jun 19, and his grade of staff sergeant is correctly reflected on his DD Form 214 and discharge order, Reserve Order A-040 dated 21 Nov 19.  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-2020-02613 in Executive Session on 17 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 29 Apr 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, Psychological Advisor, dated 26 Jan 21
Exhibit D:  Letter, SAF/MRBC, Clarifying Guidance, w/atchs, dated 28 Jan 21.
Exhibit E:  Advisory opinion, Medical Advisor, dated 28 Feb 21.  
Exhibit F:	Notification of advisory, SAF/MRBC to applicant, dated 1 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.