RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-02914

XXXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

His discharge with severance pay (DWSP) be changed to a permanent medical retirement.

APPLICANT’S CONTENTIONS

He was awarded Combat-Related Special Compensation (CRSC) for his Post-Traumatic Stress Disorder (PTSD) and is unable to benefit from the program due to receiving DWSP and incorrect counseling.  He was not mentally capable to make a correct decision during the time of his Temporary Disability Retirement List (TDRL) re-evaluation and acceptance of DWSP due to his PTSD.  He has a better understanding of his disability now that he is properly being treated.  His disabilities have worsened to an 80 percent rating by the Department of Veterans Affairs (DVA).

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 15 Feb 12, a Medical Evaluation Board (MEB) referred the applicant to the Informal Physical Evaluation Board (IPEB) for PTSD, Chronic.

On 25 May 12, the IPEB found the applicant’s PTSD (combat related/hazardous duty) unfitting for continued military service and proposed a 50 percent disability evaluation and recommended placement on the TDRL with re-evaluation in six months.

On 11 Jun 12, the applicant concurred with the IPEB findings and recommended disposition and waived his right to a formal hearing.

On 28 Oct 12, according to Special Order ACD-03028, the applicant was released from active duty and on 29 Oct 12, he was placed on the TDRL for physical disability with compensable percentage of 50 percent.

On 21 Aug 13, the applicant received a TDRL re-evaluation, with additional information collected on 21 Jan 14, indicating his medical condition was not preventing him from reasonably performing the duties of his office, grade, rank, or rating and excellent prognosis.

On 27 Feb 14, the IPEB found the applicant’s mental health condition of PTSD was still unfitting and proposed a reduced disability rating of 10 percent due to findings from his TDRL re-evaluation and recommended DWSP.

On 18 Apr 14, the applicant concurred with the IPEB findings.

Per Special Order ACD-01801, dated 25 Apr 14, the applicant was removed from the TDRL and discharged by reason of physical disability with entitlement to disability severance pay, effective 15 May 14.

On 3 June 14, AFPC/DPFDC approved the applicant’s claim for CRSC with a total combat-related disability rating of 50 percent, effective 1 Nov 12.

On 8 Jul 20, according to a letter from the DVA, provided by the applicant, the applicant’s service-connected evaluation indicates 80 percent.

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

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 G.

AIR FORCE EVALUATIONS

The BCMR Psychological Advisor finds insufficient evidence to support the applicant’s request for a permanent retirement. The Board may elect to apply liberal consideration to the applicant’s request due to the contention of a mental health condition.  

At around the time that the applicant concurred with the IPEB’s recommendation in Apr 14, he was no longer engaged in treatment, no longer met diagnostic criteria for PTSD, and there was no evidence of any intellectual, thought, or cognitive issues or an exacerbation of his PTSD symptoms causing any emotional distress that would impair his judgment and decision making skills. The applicant did return to treatment on 30 May 14 with reports of re-experiencing his trauma and PTSD symptoms. However, this experience and report was made after his decision to concur with the IPEB’s finding and after he was officially discharged from service. As his DVA provider reported on 1 Aug 13, relapsing of symptoms is normal for anyone with similar clinical presentation. This psychological advisor agrees with the DVA provider’s opinion as it is not uncommon for symptoms to recur and thus, the reason the TDRL evaluator/provider noted the applicant’s symptoms were “in remission” cautioning that symptoms could be temporarily maintained or recur.  At the time of his TDRL re-evaluation and acceptance of the IPEB’s decision, the applicant was functioning appropriately and no mental health issues were reported. Due to improved symptoms and his clinical presentation at the time of his TDRL re-evaluation, the proposed 10 percent disability rating from the IPEB appeared to be appropriate based on the rating criteria and there was no error identified the proposed rating. There was no evidence he received poor or incorrect counseling from his case manager during the MEB process.

The psychological advisor acknowledges the applicant submitted a memorandum from AFPC assigning a valuation of 50 percent disability rating for PTSD for CRSC, however, the disability rating does not impact the final rating he received from the IPEB and is not sufficient information to support his request for an increase in disability rating.

The complete advisory opinion is at Exhibit C.

AFPC/DPFDC recommends denying the application. The applicant’s TDRL re-evaluation, conducted on 21 Aug 13, showed his symptoms had improved and he was in remission.  The applicant reported excellent sleep patterns, decreased anxiety, decreased irritability, excellent memory function, increased concentration, and no problems with appetite.  Based on the physician’s evaluation, the IPEB determined the applicant’s PTSD condition had improved and decreased his PTSD rating to 10 percent. The applicant concurred with the findings and acknowledged entitlement to DWSP.

The applicant applied for CRSC in Apr 14 and requested his PTSD be considered as combat-related. On 3 Jun 14, CRSC was approved for his PTSD and determined Hazardous Service, effective Nov 12.  Because the applicant was on TDRL from Nov 12 to Apr 14, he was entitled to retiree pay, which made him eligible to receive CRSC.  However, once he was discharged from TDRL, he no longer was entitled to retired pay and became ineligible for CRSC.

The complete advisory opinion is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATIONS

The Board sent copies of the advisory opinions to the applicant on 1 Mar 21 for comment (Exhibit E), and the applicant replied on 17 Mar 21.  In his response, the applicant contended the advisory opinions only show a snapshot and does not show how his PTSD effects his daily life and how it has a pattern of going into partial remission but not a complete remission.  From the moment he went on TDRL status he was determined to get better and get back to the Air Force by going beyond the normal therapies and participating in exposure therapy by reliving the crash through flight simulation.  He was not thinking straight and was very confused during TDRL.  His PTSD continues to worsen and his PTSD is now at 70 percent disability by the DVA.

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 Psychological Advisor and AFPC/DPFDC and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board considered liberal consideration but finds no evidence that the applicant’s PTSD symptoms and his clinical presentation at the time of his TDRL re-evaluation warranted a medical retirement. 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-2020-02914 in Executive Session on 14 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 8 Jul 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory opinion, AFBCMR Psychological Advisor, dated 28 Jan 21.
Exhibit D:	Advisory opinion, AFPC/DPFDC, w/atchs, dated 26 Feb 21.
Exhibit E:	Notification of advisory, SAF/MRBC to applicant, dated 1 Mar 21.
Exhibit F:	Applicant’s response, dated 17 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.