RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-01395

xxxxxxxxxxxxx	COUNSEL: NONE

	HEARING REQUESTED: NO

APPLICANT’S REQUEST

Her diagnosis of Post-Traumatic Stress Disorder (PTSD) be found as an unfitting, Category I condition and categorized as combat-related, as a direct result of armed conflict as defined in 26 USC 104 combat-related determination.

APPLICANT’S CONTENTIONS

She experienced numerous rocket propelled grenade (RPG) attacks and bombings at various locations she was stationed at in Iraq.  To this day, she has a fear of heights, loud noises, physical contact, and driving due to her combat experience.  She does not deny the diagnosis of Bipolar Type II was exacerbated by her time in combat, but the PTSD she suffers due to combat was the cause of her medical separation.  She was rated by the Department of Veterans Affairs (DVA) with 100 percent disability rating for her PTSD.

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a medically retired Air Force staff sergeant (E-5). 

Dated 24 Feb 11, AF IMT 618, Medical Board Report, indicates the applicant was referred to the Informal Physical Evaluation Board (IPEB) for Bipolar Disorder II.

On 3 May 11, AF Form 356, Informal Findings and Recommended Disposition of USAF Physical Evaluation Board (IPEB), indicates the applicant was found unfit due to her medical condition of Bipolar Disorder II, most recent episode, Hypomanic, resolved with a disability compensation rating of 10 percent with a recommendation of “Discharge with Severance Pay.”

On 4 May 11, AF Form 1180, Action on Physical Evaluation Board Findings and Recommended Disposition, indicates the applicant disagreed with the findings of the board and requested a formal hearing.  

On 5 Jul 11, memorandum from the applicant to the President of the Formal Physical Evaluation Board (FPEB) indicates the applicant requested to waive her right to a FPEB hearing.

On 23 Oct 11, DD Form 214, Certificate of Release or Discharge from Active Duty, reflects the applicant was honorably discharged in the grade of staff sergeant (E-5) after serving 9 years, 7 months, and 19 days of active duty.  She was discharged, with a narrative reason for separation “Disability, Severance Pay, Non-Combat.”

On 23 Jan 19, the applicant submitted a request to the Air Force Board for the Correction of Military Records (AFBCMR) for an increase in her disability rating from 10 percent to 100 percent stating she was not evaluated for the level of mental illness she has and how it affected her life while in the military or since she has been discharged.

On 20 Nov 19, the AFBCMR concluded she was a victim of an error or injustice and concurred with the rationale and recommendation of AFBCMR Psychiatric Advisor, recommending she be found unfit for her medical condition of Bipolar Disorder II, most recent episode, Hypomanic and be permanently retired with a disability rating of 30 percent; the degree of impairment was permanent; the disability was not due to intentional misconduct or willful neglect; the disability was not incurred during a period of unauthorized absence; and the disability was not a direct result of armed conflict or caused by an instrumentality of war and was not combat-related.  

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

APPLICABLE AUTHORITY/GUIDANCE

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 for Personnel and Readiness (USD P&R) 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, the Board should refer to the supplemental guidance, paragraphs 6 and 7. 

On 14 May 21, the Board staff provided the applicant a copy of the liberal consideration guidance (Exhibit C).

AIR FORCE EVALUATION

AFPC/DPFDD recommends denying the application.  Although the DVA ultimately provided service connection for Bipolar Disorder, Type II with PTSD there is no evidence that PTSD was diagnosed or treated while in service and does not warrant change to her DES rating after the fact. Additionally, award of a higher rating of 100 percent is also not warranted as the DVA may adjust this percentage as the member’s condition changes throughout the years.  The Air Force and the DVA disability systems operate under separate laws.  Under the Air Force system (Title 10, United States Code [U.S.C.]), the PEB must determine whether an Airman’s medical condition renders them unfit for continued military service relating to their office, grade, rank or rating. To be unfitting, the condition must be such that it alone precludes the member from fulfilling their military duties. The PEB then applies the rating best associated with the level of disability at the time of disability processing (a snapshot in time). That rating determines the final disposition (discharge with severance pay, placement on the temporary disability retired list, or permanent retirement) and is not subject to change after the service member has separated. Under the DVA system (Title 38, U.S.C), the member may be evaluated over the years and their rating may be increased or decreased based on changes in the member’s medical condition at the current time. However, a higher rating by the DVA “based on new and/or current exams conducted after discharge from service” does not warrant a change in the total compensable rating awarded at the time of the member’s separation.

On 3 May 11 the Informal PEB found the applicant unfit for Bipolar Disorder II, Most Recent
Episode Hypomanic, Resolved with a 10 percent compensable disability rating and recommended disability discharge with severance pay.  On 16 Mar 20, the AFBCMR upgraded this compensable disability rating to 30 percent and directed permanent disability retirement, effective 24 Oct 11.  There is no record that the applicant attempted to have PTSD added to her list of unfitting conditions at the time of her PEB processing.  Records indicate that she initially disagreed with the IPEB findings but later waived her Formal PEB hearing.  A review of the member’s medical records do not show that she was diagnosed with PTSD while serving in the Air Force.  Additionally, her initial DVA Rating Decision dated 19 Sep 12 awarded disability compensation for Bipolar Disorder, Type II with a 30 percent disability rating.  On 27 Mar 19, the DVA upgraded this diagnosis to Bipolar Disorder, Type II with PTSD with an increase to 70 percent.  She was ultimately awarded a 100 percent disability rating for this condition on 17 Jul 20.

Per DoDI 1332.18, Disability Evaluation System, dated 5 Aug 14, Appendix 5 to Enclosure 3, the applicant’s disabilities currently do not qualify as “combat related”, as defined in 26 U.S.C. 104.  There must be a definite, documented, causal relationship between the armed conflict event/incident and the resulting disability.  The events that she describes in her BCMR submission only detail that she was in the general area of the events but not necessarily directly under attack or engaged in hostile fire.

The complete advisory opinion is at Exhibit D.

The AFBCMR Psychological Advisor completed a review of the available records and finds insufficient evidence to support the applicant’s request for the desired changes to her record. The applicant was never diagnosed with PTSD caused by her deployment experiences during service.  Although there is evidence she reported having problems adjusting following her return from Iraq causing her to have depression, anxiety, sleep issues and fatigue, she never met the diagnostic criteria for PTSD.  Her reported symptoms were too vague and many conditions share these same symptoms.  There were no records she endorsed experiencing more classic symptoms of PTSD such as avoidance, hypervigilance, flashbacks, exaggerated startled responses, nightmares, etc.  She was initially given a diagnosis of Adjustment Disorder due to her presenting problems and symptoms, and this diagnosis was appropriate and consistent based on her reported and observed clinical presentation at the snapshot in time of service.  Her records suggest her deployment and adjustment difficulties caused an exacerbation and aggravation of her hypomanic symptoms causing her to be diagnosed with Bipolar Disorder II, which the applicant had acknowledged in her personal statement.  Regardless of whether the applicant had a confirmed diagnosis of PTSD during service, this information would not have affected or altered the outcome of her medical separation.  The military/Department of Defense (DoD) assigns only one combined rating for multiple mental health conditions, and the disability rating is not based on the number of conditions or disorders one has but rather, based on the severity or degree of impairment of the unfitting condition(s). The applicant’s condition of Bipolar Disorder II was found unfit for continued military service by the IPEB, and she eventually received a 30 percent rating for Bipolar Disorder II by upgrade from the AFBCMR in Nov 19.  There is no evidence to support she should have received greater than a 30 percent rating for her mental health condition especially since her condition was determined to have been stable and resolved at the time of discharge.

This psychological advisor acknowledges the applicant was diagnosed with PTSD in 2019, about eight years post discharge, received an increase from 30 percent to 70 percent for Bipolar Disorder, Type II with PTSD on 27 Mar 19, and received another increase to 100 percent for this same condition on 17 Jul 20 by the DVA.  It is important to note that mental disorders present differently from individual to individual and may change frequently as conditions may resolve or continue to evolve over time.  The individual may also develop a new and different condition or experience a delayed onset of a condition.  It appeared the applicant had a delayed onset of PTSD, in which she met diagnostic criteria for PTSD several years after the triggering traumatic experience(s) occurred.  This is not an uncommon occurrence and may explain the incremental increase with her disability rating post service from the DVA.  As aforementioned, the military assign ratings based on the degree of impairment of the condition at the time of separation and not based on post service changes or progression of the condition. Thus, this psychological advisor finds insufficient evidence to support the applicant’s request for medical separation for PTSD.  

Liberal consideration is applied to the applicant’s request due to the contention of a mental health condition.  The following are answers to the four pertinent questions from liberal consideration policy based on the available records for review: 

1. Did the veteran have a condition or experience that may excuse or mitigate the discharge?
The applicant requests a medical separation/retirement for PTSD caused by her deployment experience in Iraq form August 2009 to March 2010.
2.  Did the condition exist or experience occur during military service?
There is evidence in her service treatment records she was given diagnoses of Adjustment Disorder, Panic Disorder with Agoraphobia, and Bioplar Disorder II during military service.  She was never given a diagnosis of PTSD in service and did not meet criteria for PTSD based on her reported symptoms and objective service treatment records.
3.  Does the condition or experience excuse or mitigate the discharge?
The applicant’s mental health condition of Bipolar Disorder II, Most Recent Episode Hypomanic, Resolved was found to be unfitting by the IPEB.  The IPEB did not find her condition of PTSD based on her reported symptoms and objective service treatment records.
4.  Does the condition or experience the discharge?
Since the applicant was never diagnosed with PTSD and this condition was never found unfit by the IPEB, her condition or experience does not outweigh her current discharge and would provide her with additional or increase disability rating.  

The complete advisory opinion is at Exhibit E.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 24 Oct 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 of AFPC/DPFDD and the AFBCMR Psychological Advisor and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board is also satisfied that the application of liberal consideration does not warrant relief.  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-2021-01395 in Executive Session on 23 Nov 21 and 25 Nov 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/atch, dated 13 Jan 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C: Letter to Applicant, SAF/MRBC (Liberal Consideration), dated 14 May 21.
Exhibit D:	Advisory Opinion, AFPC/DPFDD, w/atchs, dated 3 Jun 21.
Exhibit E:  Advisory Opinion, AFBCMR Psychological Advisor, dated 4 Oct 21.
Exhibit F:	Notification of Advisory, SAF/MRBC to Applicant, dated 24 Oct 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.