RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-02676

xxxxxxxxxxxxxx	COUNSEL: NONE

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

He receive a medical retirement with a 75 percent disability rating due to his medical conditions of Posttraumatic Stress Disorder (PTSD), asthma, migraines, Gastroesophageal Reflux Disease (GERD) and low back pain. .

He be retired in the grade of captain (O-3E).

His service-connected injuries be assessed as combat-related in order to qualify for compensation under the Combat-Related Special Compensation (CRSC) Act. 

APPLICANT’S CONTENTIONS

In Dec 2010, he was submitted into the Disability Evaluation System (DES) and was in the process of undergoing a Medical Evaluation Board (MEB).  He did not understand the process and sought clarification from his leadership but they did not understand what an MEB meant for him either.  Ultimately, on 8 Apr 12, he left active duty to take an Air Force civilian position prior to the completion of the MEB for asthma/reactive airways disease (RAD).  He was inappropriately denied MEDCON orders to complete the processing of his case which would have allowed him to serve in the grade of captain while on active duty.  His medical conditions should have been found in the line of duty (INLOD) and his MEB should have been completed prior to his discharge.  The Department of Veterans Affairs (DVA) granted him a 100 percent disability rating for the same conditions he was submitted into the DES for.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force Reserve (AFR) captain (O-3).

Dated 19 Dec 08, ARPC IMT 92, Appointment Order, indicates the applicant joined the AFR as a second lieutenant.

Dated 19 Jul 11, AF IMTs 348, Line of Duty Determination, provided by the applicant, indicates his commander recommended an INLOD finding for his medical conditions PTSD, migraines, GERD, spine/lower back/hip/knee pain, and asthma.  The appointing authority did not sign the form.

Dated 28 Oct 11, AF Form 469, Duty Limiting Condition Report, provided by the applicant, indicates he was put on duty and mobility restrictions from 8 Dec 11 through 22 Dec 11.

Issued 19 Mar 10, his DD Form 214, Certificate of Release or Discharge from Active Duty, reflects he was honorably discharged in the grade of second lieutenant (O-1) after serving 8 months and 28 days of active duty.  He was discharged with a narrative reason for separation “Completion of Required Active Service.”

Issued 3 Dec 10, his DD Form 214, reflects he was honorably discharged in the grade of second lieutenant (O-1) after serving 7 months and 11 days of active duty.  He was discharged, with a narrative reason for separation “Completion of Required Active Service.”

Issued 8 Apr 12, his DD Form 214, reflects he was honorably discharged in the grade of first lieutenant (O-2) after serving 5 months and 28 days of active duty.  He was discharged, with a narrative reason for separation “Completion of Required Active Service.”

Dated 16 Nov 12, Reserve Order BA-0072, indicates the applicant was promoted to the grade of captain in the Reserve of the Air Force with a date of rank and effective date of 19 Dec 12. 

Dated 20 May 14, Reserve Order CB-001731, indicates the applicant was honorably discharged effective 17 May 14.

Dated 21 Oct 19, the Department of Veterans Affairs (DVA) Rating Decision, provided by the applicant, increased his service-connected disability for his PTSD to 70 percent and granted service connected for his migraines at 50 percent.  The DVA also provided disability ratings for several other service-connected disabilities with a combined rating of 100 percent effective 13 Jun 19.  

Dated 3 Apr 2020, the Department of Veterans Affairs (DVA) Rating Decision, provided by the applicant, increased his service-connected asthma and recurrent pneumonia from zero percent disabling to 60 percent effective 18 Sep 19.  On 18 Feb 20, the DVA assigned an evaluation of 30 percent based on facts found at a VA examination showing improvement in his condition.

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

APPLICABLE AUTHORITY

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.  The guidance also states liberal consideration is not required for cases involving pre-existing conditions which are determined not to have been aggravated by military service.

In regards to the applicant’s claim for a disability retirement pay in the grade of captain (O-3E), Title 10, United States Code, Section 1372, grade on retirement for physical disability: members of armed forces, states unless entitled to a higher retired grade under some other provision of law, any member of an armed force who is retired for physical disability under section 1201 or 1204 of this title, or whose name is placed on the temporary disability retired list under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following:

a.	The grade or rank in which he is serving on the date when his name is placed on the temporary disability retired list or, if his name was not carried on that list, on the date when he is retired.

b.	The highest temporary grade or rank in which he served satisfactorily, as determined by the Secretary of the armed force from which he is retired.

c.	The permanent regular or reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination.

d.	The temporary grade to which he would have been promoted had it not been for the physical disability for which he is retired, if eligibility for that promotion was required to be based on cumulative years of service or years of service in grade and the disability was discovered as a result of a physical examination.

AIR FORCE EVALUATION

AFRC/A1K deferred their decision.  A1K states there was never an ILOD decision made by the AFR.  His medical status, at the time of illness or injury, not what he worsened to later, would be the basis for whether an injustice had occurred.  Headquarters Air Force Reserve Command Surgeon General (HQ AFRC/SG) conducted a system review and found that no Air Force Reserve Line of Duty (LOD) was ever accomplished for the member.  Three LODs were initiated by the Readiness Management Group (RMG) but all were later canceled by the RMG.  The RMG did not provide a detailed rationale for cancelling the LODs, but the notes stated all three of the LODs (PTSD, back issue and esophageal reflux) originated while the member was in the Regular Air Force (RegAF), not while in the AFR.  The applicant transferred to the AFR in 2008 with these pre-existing conditions, but still was deemed fit for duty when he transferred to the AFR.  Thus, these three conditions were well documented in his medical record leaving the Regular Air Force and were already considered in the line of duty.  If the member’s conditions were service aggravated, IAW AFI 36-2910, Line of Duty Determination, Medical Continuation, and Incapacitation Pay, paragraph 1.10.1.2., then an AF Form 348, Line of Duty Determination would have been appropriate.  Per HQ AFRC/SG, Medical Continuation (MEDCON) would not have been approved in this case, as there was no AFR LOD showing an aggravation of preexisting conditions due to military service.  AFR-funded MEDCON orders for conditions originating from the member’s previous RegAF time would not be permissible.  Per AFI 36-2910, paragraph 1.10.2.2., a special provision allows consideration for Existed Prior to Service (EPTS)-Not Service Aggravated (NSA) conditions.  EPTS-NSA conditions include chronic conditions and conditions where the incubation period rules out a finding that the condition started during any period of active duty, active duty for training (ADT) or Inactive Duty Training (IDT).  Under this provision, paragraph 1.10.2.2.2, the Eight Year Rule applies, requiring the member to have eight years of total active service to be eligible for medical retirement consideration through the DES.  A record review reveals the applicant has 7 years, 11 months and 3 days of active service; thus, he falls just short of the minimum requirement necessary to be eligible for medical retirement under this rule. 

The complete advisory opinion is at Exhibit C.

AFBCMR Medical Advisor states there is evidence of an error or injustice and recommends granting the applicant’s request for a medical retirement due to asthma with a disability rating of 30 percent.  Had the applicant been extended on active duty to complete the DES process, he would have invariably achieved at least 8 years of active service, thus, the Medical Advisor recommends the Board adjudicate the applicant’s case through the lens of HQ AFPC/Disability Division; noting the likelihood that he would have completed 8 years of active service, making any condition found unfitting eligible for compensation under Title 10, United States Code, Section 1207a [“8-Year Rule”].  Although the Department of Veterans Affairs has granted the applicant disability compensation for PTSD, Asthma/reactive airway disease, migraines, GERD, and low back with lower extremity radiculopathy, a preponderance of objective service evidence indicates the applicant’s asthma posed the more definitive risk to his health and safety.  With respect to causation, the Medical Advisor found the applicant’s report that dust inhalation during combat operations in 2004-2005, as the cause or origin of his asthma, is insufficient to declare this condition combat-related; particularly in the context of his multiple sensitivities to pollens, grasses, and mold that, in the allergist’s opinion, was to the etiology of his reactive airway disease.  Additionally, the co-morbid exercise-induced feature of the illness, also unlikely has its causal origins from military operations.  Thus, despite the different characterizations of the applicant’s respiratory ailment, whether dyspnea, allergies, reactive airway disease, or asthma, the Medical Advisor opines this condition should be considered unfitting.  Had the applicant not been allowed to separate, and was extended on active duty for at least one month to continue the MEB and PEB referral process, he would have been found unfit due to asthma, rated at 30% under VASRD code 6602, and permanently retired with a 30% disability rating; with eligibility under Title 10, United States Code, Section 1207a. 

The Medical Advisor acknowledged the disability ratings granted to the applicant through the Department of Veterans Affairs (DVA).  However, the Military Department, operating under Title 10, United States Code (U.S.C.), only offers compensation for service-incurred or permanently aggravated illnesses or injuries that prevented a member from reasonably performing the duties of his or her office, grade, rank, or rating.  To the contrary, operating under a different set of laws, Title 38, U.S.C., the Department of Veterans Affairs (DVA) is empowered to offer compensation for any medical condition determined service-incurred, without regard to its proven or demonstrated impact upon a member’s retainability, fitness to serve, narrative reason for separation, of the length of time transpired since date of separation.  For this reason, the DVA is authorized to offer compensation for medical conditions found service-connected, but were not proven unfitting at the time of release from military service.  Medical disqualification is not synonymous with unfitness; particularly in the context of AFRC/SG’s authority, and often utilized option, to retain a service member with an Assignment Limitation Code; particularly in the context of his Reserve AFSC [Intelligence].  Therefore, while the applicant’s PTSD could arguably be attributed to exposures during combat operations under hostile conditions, the Medical Advisor found the service evidence rendering it an unfitting condition deficient; although listed as an initial trigger for the Worldwide Duty Evaluation (WWDE).  Similarly, although frequent ascent, descent, and hard landings in a helicopter, in an individual prone to GERD could conceivably cause exacerbations, particularly on a full stomach and wrapped in combat gear, this condition is also known to occur in individuals with no such contributory environmental factors.  Moreover, the Medical Advisor finds it to be an unlikely cause for career termination in an Intelligence Officer; who has otherwise demonstrated the ability to carry out the duties of his office, grade, rank, and rating.  The frequency and severity of the applicant’s Migraines have also not been objectively shown to justify an individual basis for unfitness.  Although the applicant also received periodic chiropractic manipulations and treatment with muscle relaxants and non-steroidal anti-inflammatories, there is insufficient objective service evidence that the applicant’s lumbago and segmental spine dysfunction was postured as cause for career termination; as would also be shown by an AF Form 469, Duty Limiting Condition Report, coded “37.”  There was also no service evidence of an unfitting lower extremity radiculopathy, as shown by the negative straight-leg raise tests conducted and normal sensory-motor function.

Finally, addressing the applicant’s petition for Combat-Related Special Compensation, he is advised that the benefit is only available to military retirees (including those retired under Chapter 61).  Thus, should the Board grant a medical retirement, the applicant should obtain information on eligibility for CRSC via the HQ AFPC webpage.

The complete advisory opinion is at Exhibit D.

AFBCMR Psychological Advisor recommends denying the applicant’s request for a medical retirement due to PTSD.  An extensive review of his available service treatment records found he did receive a diagnosis PTSD from his prior service deployment experiences, which was considered ILOD, but his condition of PTSD was not exacerbated or aggravated by his Reserve military duties beyond natural progression of the disease.  There were no records reporting it was his military duties that caused exacerbation or aggravation.  Receiving a mental health disorder diagnosis and/or treatment does not automatically make his condition as unfitting for service; it is how the symptoms of the disorder impacts the functioning of the service member to perform his or her military duties that is crucial.  The applicant was never placed on a duty limiting condition (DLC) profile for his mental health condition and was never deem not World Wide Qualified (WWQ) due to his mental health condition and in fact, his last treatment note in service dated 27 Mar 12 reported the opposite – he was WWQ and had an S1 profile indicating no duty restrictions for his mental health condition.  His providers never referred him to the MEB for a potentially unfitting mental health condition causing early career termination and a medical discharge.  The applicant was consistently found fit for duty to include when he commissioned into the Reserve and when he attempted to commission into active duty.  There was no documentation from his military or DVA providers of any complaints or observations his mental health condition interfered with his ability to perform his military duties in accordance to his office, grade, rank or rating.  Based on the information presented in his records, the applicant has not met the burden of proof to demonstrate there was an error or injustice pertaining to his mental health condition.   

The complete advisory opinion is at Exhibit E.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent copies of the advisory opinions to the applicant on 11 Mar 21 for comment (Exhibit F), and the applicant replied on 16 Mar 21.  In his response, the applicant contends AFRC/A1K has proven the injustice in his case but AFRC/SG cannot answer fundamental questions about his case despite being the original OPR for it.  He agrees with the BCMR Medical Advisor’s recommendation to retain him for a period and permanently retire him due to Asthma rated at 30% but disagrees on the period of time for retention, stating dust inhalation/exposures during deployment caused his asthma, and those exposures make his asthma combat-related.  He requests liberal consideration for his petition based on the contention of his mental health condition, as his mental health was mishandled by medical professionals throughout his service in the Air Force.  Additionally, he disagrees with the BCMR Psychological Advisor’s recommendation that there is insufficient evidence to support his request for a medical retirement for his mental health condition to include PTSD.  The applicant’s complete response is at Exhibit G.

FINDINGS AND CONCLUSION

1.  The application was not 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.  As noted by AFRC/A1K, the applicant transferred to the Air Force Reserve in 2008 with pre-existing conditions, but was still deemed fit for duty when he transferred to the Reserve.  Although the AFBCMR Medical Advisor recommends the applicant’s record be corrected to show that he was held on active duty for an additional 30 days to complete the DES process and then medically retired due to asthma, the Board disagrees.  In this respect, the Board notes that the applicant was on an active duty tour of several months while the Air Force was actively evaluating his medical conditions.  However, the applicant volunteered to leave the participating Reserve only to allege several years later that he is now the victim of an error or injustice committed by the Air Force.  In view of the foregoing, it is the Board’s opinion that the applicant has deprived the Air Force of its ability to reasonably determine his fitness for duty so many years later.  Additionally, the Board is pleased the applicant is receiving treatment and compensation from the DVA for his medical conditions and finds the DVA rating irrelevant to this case.  In this respect, under Title 38 U.S.C., the DVA is empowered to provide compensation for any medical condition related to service regardless of the impact on service.  The applicant also requests liberal consideration due to his mental health condition.  However, as noted by the Psychological Advisor his PTSD was not exacerbated or aggravated by his Reserve military duties.  As noted in the clarifying guidance dated 25 Aug 17, liberal consideration is not required for cases involving pre-existing conditions which are determined not to have been aggravated by military service.  As such, the applicant does not meet the criteria for liberal consideration.  Moreover, the Board notes the applicant did not file the application within three years of discovering the alleged error or injustice, as required by Section 1552 of Title 10, United States Code, and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records (AFBCMR).  While the applicant asserts a date of discovery within the three-year limit, the Board does not find the assertion supported by a preponderance of the evidence.  The Board does not find it in the interest of justice to waive the three-year filing requirement.  Therefore, the Board finds the application untimely and 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 application was not timely filed; it would not be in the interest of justice to excuse the delay; 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-2020-02676 in Executive Session on 30 Mar 21 and 6 Apr 21:

, Panel Chair
, Panel Member
, Panel Member

A majority of the panel voted against correcting the record.  Ms. Collier concurred with the AFBCMR Medical Advisor to grant a medical retirement due to asthma with a disability rating of 30 percent.  However, Ms. Collier elected not to provide a minority opinion.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 10 Jun 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFRC/A1K, dated 5 Mar 21.

Exhibit D:	Advisory opinion, AFBCMR Medical Advisor, dated 8 Mar 21.
Exhibit E: Advisory opinion, AFMCMR Psychological Advisor, dated 10 Mar 21.
Exhibit F:	Notification of advisory, SAF/MRBC to applicant, dated 11 Mar 21.
Exhibit G:	Applicant’s response, dated 16 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.