RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-03542

XXXXXXXXXXXX (APPLICANT)	COUNSEL: XXXXXXXXX
	
	HEARING REQUESTED: YES

APPLICANT’S REQUEST

Her record corrected to reflect:

1)	She was medically retired.

2)	She was found unfit and permanently retired for psychoneuroses with at least a 30% disability rating.

3)	Removal of all references to immature personality disorder with hysterical features.

4)	Reimbursement for military retirement benefits and payment she did not receive due to her improper discharge.

5)	Compensation for her out-of-pocket medical costs since TRICARE has not previously been available to her, with interest, as allowed by law.   

APPLICANT’S CONTENTIONS

She was violently attacked and sexually assaulted while serving in the Air Force and subsequently hospitalized for over three weeks.  Even though her separation examination expressly recognized several medical conditions following her rape, the military psychiatrist deliberately failed to acknowledge her condition.  As a result, she was erroneously administratively separated due to unsuitability for immature personality disorder with hysterical features instead of being provided the appropriate diagnosis of psychoneuroses and processing through the Disability Evaluation System (DES).   

The Department of Veterans Affairs (VA) has since determined the military psychiatrist at the time of her separation willfully and knowingly omitted the precipitating event causing her psychiatric symptoms and inability to function.  The omission resulted in an inappropriate and egregious diagnosis.  At no time prior to or after this separation diagnosis had she ever been diagnosed with a personality disorder.  In 2013, a psychologist determined she did not suffer from a personality disorder, rather from chronic Post-Traumatic Stress Disorder (PTSD) as a direct result of the sexual assault.  In 2014, the VA agreed determining she suffered from direct service connection PTSD due to military sexual trauma (MST).  

Based on this disability that was so severe it caused her administrative separation, she should have been referred to the DES, found unfit, and medically retired.  Her case is a textbook case where the Secretary of Defense urges liberal consideration to find her PTSD not only existed at the time of service, but that it, not a personality disorder, caused her discharge. 

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force airman (E-2).

On 25 Aug 70, the Standard Form 88, Report of Medical Examination, block 42, Psychiatric, was marked “normal.”  

On 25 Aug 70, the Standard Form 89, Report of Medical History, the applicant marked “no” for all block 20 entries.

On 29 Apr 71, a David Grant Medical Center psychiatrist recommended to the applicant’s commander she be considered for administrative separation under AFM 39-12 noting she was not suffering from psychiatric conditions warranting separation from the service by reasons of medical disability under AFM 35-4.  He further diagnosed the applicant with “immature personality with hysterical features.”

On 4 May 71, the Standard Form 88, Report of Medical Examination, block 42, Psychiatric, was marked “abnormal” with a note, “Has been hospitalized in F-1.”  Block 73, Notes and Significant or Interval History, reflected “All nervous & sleeping difficulties refer to problems after rape, March 28, 1971 in Philadelphia, PA.”  Block 74 reflected, “Examinee referred by her Commander for medical examination to support administrative action.  There are no mental or physical defects that would warrant consideration for separation under the provisions of AFM 35-4.”

On 4 May 71, the Standard Form 89, Report of Medical History, the applicant marked “yes” for several entries in block 20 and in block 32, “Have you ever been a patient in a mental hospital or sanitorium?”

On 6 Aug 71, the applicant received an honorable discharge.  Her reason and authority read, “Chap 2 Sec A, Para 2-4B AFM 39-12 & Ltr 60 ABGP.”  She was credited with 10 months and 19 days of total active service.

On 9 Oct 14, the VA rated the applicant 100% service-connected for PTSD due to sexual assault, effective 9 Jun 14.  

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

APPLICABLE AUTHORITY/GUIDANCE

AFM 39-12, 1 Sep 66, paragraph 2-4 relates to “Conditions for Unsuitability” and sub-paragraph b relates to “Character and Behavior Disorders” (See Exhibit B).  

On 3 Sep 14, the Secretary of Defense issued a memorandum providing guidance to the Military Department Boards for Correction of Military/Naval Records as they carefully consider each petition regarding discharge upgrade requests by veterans claiming PTSD.  In addition, time limits to reconsider decisions will be liberally waived for applications covered by this guidance.

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.

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?

On 25 Jul 18, the Under Secretary of Defense issued supplemental guidance 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.  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.  In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, refer to the supplemental guidance, paragraphs 6 and 7.  Specifically, paragraph 6(l.) states changes to the narrative reason for a discharge granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, the payment of past medical expenses, or similar benefits that might have been received if the original discharge had been for the revised reason.   

On 22 Feb 21, the Board staff provided the applicant a copy of the liberal consideration guidance (Exhibit C).

AIR FORCE EVALUATION

The AFBCMR Psychological Advisor recommends denying the application finding insufficient evidence to support her request.  The applicant’s discharge paperwork and service treatment records were not available for review.  A review of the available records and testimony provided for this petition finds the applicant’s and her legal counsel’s contentions are quite compelling; however, the objective evidence of her service treatment records to include the psychiatric evaluation performed in service were not available for review. Therefore, it is difficult to determine and be able to render an opinion regarding whether the applicant was erroneously diagnosed with a personality disorder in service, possibly met diagnostic criteria for a different mental health condition, and/or if she had any potentially unfitting mental health conditions that would have been referred to the Medical Evaluation Board (MEB), processed under the DES, and resulting with a medical discharge or retirement from service. The contentions made by the applicant and her legal counsel are speculative at this time with no actual evidence to support or substantiate their claims. The AFBCMR Psychological Advisor concurs with their argument that PTSD was not a condition or disorder that had existed when the applicant was in service but does not agree she should have been diagnosed with psychoneuroses because it was the most similar diagnosis to PTSD at the time.  The reason for disagreement is again, the service treatment records are not available for review and so it could not be determined with confidence she had met diagnostic criteria for this condition. Her service treatment records are necessary to assess her clinical presentation during service, symptoms she reported experiencing following the traumatic incident, and whether she had any unfitting mental health conditions. The applicant’s sexual assault is not in question but it is the symptoms and condition she may have experienced or displayed following the incident that matters and are relevant to their requests for this petition. The VA evaluator believed the military provider willfully and knowingly omitted the precipitating event causing her mental health condition and impaired her functioning, but the veracity of this opinion could not be verified because of the lack of records.

This psychological advisor concedes that it is likely the applicant did not have a valid personality disorder because her personality disorder has been disputed by multiple evaluators and providers post-service.  Personality disorders are characterized by having an enduring, life-long, pervasive, and stable pattern of behavioral and emotional disturbances causing distress or impairment.  If the applicant truly had a bona fide personality disorder, her post service providers would have been able to identify or detect her personality traits, which was not the case for the applicant.  All post service evaluators and providers agree the applicant had PTSD caused by her sexual assault and not a personality disorder but nevertheless, it is reminded the applicant was evaluated by these providers decades post service and did not evaluate the applicant during service. The applicant’s symptoms and level of functioning may change over time and so it is important to be able to assess the applicant’s service treatment records to determine her actual functioning at the snapshot in time of service. As a result, this psychological advisor finds no error or injustice with the applicant’s discharge process from service due to the lack of corroborating evidence to support their contentions; however, the Board may elect to apply liberal consideration to the applicant’s petition based on the contention of a mental health condition.

The complete advisory opinion is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 13 May 21 for comment (Exhibit E), but has received no response.

AMEMDED AIR FORCE EVALUATION

The AFBCMR Psychological Advisor, in an amended evaluation, recommends denying the applicant’s request for a medical retirement.  However, the Psychological Advisor, after reviewing all available records, partially concurs with the applicant’s and her legal counsel’s contentions. The VA evaluator claimed the military provider willfully and knowingly omitted her sexual assault incident causing her mental health condition and inability to function. The Psychological Advisor agrees with this claim; however, disagrees the action of the military psychiatrist was an example of malfeasance.  The letter from the military psychiatrist was addressed to her commander and in essence, could potentially be shared with other people in her chain of command.  The military psychiatrist may purposely omit this highly sensitive information for the purpose of maintaining the applicant’s privacy and confidentiality based on ethical principles.  This is not an unusual occurrence and is commonly practiced among military and non-military providers. Upon review, the letter to the commander was generic serving the purpose of initiating her administrative separation and not a synopsis of her treatment and condition. It cannot be stated with certainty that the military psychiatrist did not report or acknowledged her sexual assault in her actual hospital treatment records as these records were not available for review.  It was clearly documented in her separation physical records five days after her hospital discharge that her emotional distress was precipitated by being raped on 28 Mar 71.  Therefore, due to the close proximity of this report to her hospital discharge and the amount of time she was hospitalized, it was more likely than not, the military psychiatrist was aware she had been sexually assaulted, and the traumatic event was the causal effect of her psychiatric hospitalization, mental health condition, and decompensation of her overall functioning. 

The military psychiatrist diagnosed the applicant with a personality disorder and no records were available to assess how she met diagnostic criteria for a personality disorder. Personality disorders or traits are characterized as enduring patterns of maladaptive behaviors that are pervasive, inflexible and stable over time usually starting in adolescence or early adulthood leading to distress and impairment. The fact that the applicant’s post service evaluators disputed the diagnosis and did not identify a personality disorder/traits from evaluations completed several decades post discharge, would provide support she did not a have a valid or bona fide personality disorder diagnosis. If she truly had a personality disorder, these evaluators would be able to detect at least some traits of the condition which was found non-existent. These findings would negate her personality traits as enduring and stable over time. Thus, the Psychological Advisor concurs the applicant did not have a valid personality disorder diagnosis.  

Despite the applicant not having a valid personality disorder, this Psychological Advisor finds her administrative discharge was correct and appropriate because she had a different unsuiting and not unfitting mental health condition during service. This conjecture is based on her reported clinical presentation and timeline of her condition during service. The applicant was identified to have “hysterical features”. Hysterical features or hysteria may include uncontrollable emotions, anger, irritability, agitation, anxiety, nervousness, shortness of breath, and insomnia. These are the same symptoms reported in her separation physical records and common behavioral and emotional reactions to a traumatic event like sexual assault. The applicant was adjusting and reacting to a situational stressor (sexual assault) that had recently occurred and so her condition resembled more closely to the current condition of Adjustment Disorder with Mixed Anxiety and Depressed Mood or Adjustment Reaction to Adult Life at the time based on her records. Her behavioral and emotional responses to her identifiable stressor occurred within three months of the onset of the stressor causing marked distress to her current functioning, which meets the criteria for an Adjustment Disorder. The applicant was discharge from service within five months from her traumatic experience and this short time span did not allow for continued observation and assessment of the potential development of her condition.  Even though it appeared the applicant was discharged rather quickly after her sexual assault, her acute and unsuiting condition had significantly impaired her ability to function appropriately in the military environment.  Prolonging her stay in the military for a potential and not guaranteed medical discharge would cause harm to the applicant as it was apparent her ability to tolerate stressful situations had been significantly diminished.  This is standard operating procedure at the time and continued to be practiced in present time.  Unsuiting conditions meet criteria for an administrative separation and there is no error or injustice identified with the applicant’s discharge.  However, the Board may elect to apply liberal consideration to the applicant’s petition.  
The complete advisory opinion is at Exhibit F.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 15 Jun 21 for comment (Exhibit G), 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 recommendation of the AFBCMR Psychological Advisor and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  While the Board is sensitive with what the applicant endured, the Board agrees with the AFBCMR Psychological Advisor that the lack of her separation documentation from the applicant’s military human resource record and her service treatment record hinders the Board’s ability to assess whether the applicant had a medical condition that rose to the level to warrant a medical separation/retirement at the time of her administrative discharge.  In this regard, the Board notes the supporting documentation listed on the applicant’s DD Form 149 were absent from her submission and not provided even after an AFBCMR staff request.  Should the applicant provide the listed supporting evidence, the Board will reconsider her case.  Absent such evidence and under the presumption of regularity, the Board finds her administrative discharge appropriate, her condition at her time of discharge was unsuiting, not unfitting and therefore did not warrant a medical separation/retirement.  With regard to the applicant’s request to remove from her record her diagnosis of immature personality disorder with hysterical features, after a review of her limited military human resource record, we found no documentation with that diagnosis in her record; however, that record is in her Department of Veterans Affairs (VA) record.  The Board lacks the authority to remove this from her VA record.  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-2020-03542 in Executive Session on 19 Aug 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 22 Oct 20.
Exhibit B:	Documentary Evidence, including relevant excerpts from official records.
Exhibit C:	Letter, SAF/MRBC, w/atchs (Post-Service Request and Liberal Consideration  
                  Guidance), dated 22 Feb 21.
Exhibit D:	Advisory Opinion, AFBCMR Psychological Advisor, dated 29 Apr 21.
Exhibit E:	Notification of Advisory, SAF/MRBC to Applicant, dated 13 May 21.
Exhibit F: 	Advisory Opinion, AFBCMR Psychological Advisor, dated 9 Jun 21.
Exhibit G:	Notification of Advisory, SAF/MRBC to Applicant, dated 15 Jun 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.