RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-00399

XXXXXXXXX	COUNSEL: NONE

	HEARING REQUESTED: YES

APPLICANT’S REQUEST

1.	He receive a medical retirement with an effective date of “present day.”

2.	His demotion to senior airman on 31 Dec 14 be overturned. 

3.	He be automatically reenlisted on 1 Mar 18.

4.  He be promoted to technical sergeant (E-6), effective 31 Dec 14, promoted to master sergeant (E-7), effective 01 Jan 17, promoted to senior master sergeant (E-8), effective 01 Jan 19, and promoted to chief master sergeant (E-9), effective 01 Jan 21.

5.  All of his Enlisted Performance Reports (EPR) lower than a 4 rating be adjusted to a 5 rating.

APPLICANT’S CONTENTIONS

Based on his Department of Veterans Affairs (DVA) disability rating, he should be medically retired with a 50 percent disability rating with an effective date “present day.”  The evaluation from the DVA shows his back disability rating is at 50 percent and states there are other issues he can claim for his back which will increase his rating above 50 percent.  A medical board was done while he was being separated and it came back as “return to duty with limitations.”  The dates on the DVA evaluation go back to when he separated from the military.  His condition has gotten worse and he strongly believes a medical board would retire him today if he would not have been erroneously demoted and separated back in 2014.  

He was demoted on 31 Dec 14 based on a Quality Assurance (QA) failure.  The inspector asked one question and failed him on his personnel evaluation.  The Maintenance Standard and Evaluation Program (MSEP) states "Must ask a minimum of TWO questions."  His squadron commander stated in the paperwork that he did an investigation.  This investigation was not thorough or it would have discovered this problem.  Instead, his squadron commander only went deep enough to satisfy himself and recommended a demotion.  The recommendation came not even 30 days after he had reenlisted.  He cannot go into a previous enlistment where this failure happened violating AFI 36-2502, Enlisted Airman Promotion/Demotion Programs, in recommending the demotion. The squadron commander clearly was aware of the facts and circumstances but still went after the demotion.  When he was called in front of the group commander and asked what was going on, he was not allowed to have counsel present and when he started going over his case, the group commander stopped him and had him leave the room.  He was not able to defend himself or point out the actions of his squadron commander.  He went to the Inspector General and they showed him how to file for redress which resulted in the group commander saying that he nor the squadron commander were aware of the facts and circumstances.  The AF Form 901, Reenlistment Eligibility Annex to DD Form 4, clearly shows otherwise as this form authorized him to reenlist meaning the squadron commander was required to check his entire military record and approve his reenlistment and, therefore, was aware of the facts and circumstances.  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is a former Air Force senior airman (E-4).

On 8 Aug 11, AF Form 910, Enlisted Performance Report (AB thru TSgt), for performance period 12 Oct 10 thru 5 Aug 11, indicates he received a “Does Not Meet” rating in block 3, Fitness.  His overall rating is annotated as a “4” which denotes “Above Average.”  

On 17 Aug 11, the applicant submitted a rebuttal to this referral EPR stating he has a medical condition, right hip and lower back pain, that has existed for nine years which limited his ability to do push-ups.

On 22 Apr 14, AF Form 910, for performance period 6 Aug 13 thru 13 Apr 14, indicates he received an overall rating of “3” which denotes “Average.”  

On 6 Oct 14, AF Form 901, indicates his squadron commander signed the form acknowledging he was not aware of any ineligibility conditions (such as investigations by military or civilian authorities, pending military or civilian court charges, punishment under UCMJ, exceeding weight standards, etc.) which would render the airman ineligible for reenlistment. 

On 10 Oct 14, DD Form 4, Enlistment/Reenlistment Document Armed Forces of the United States, indicates the applicant reenlisted for three years and one month in the grade of staff sergeant.

On 26 Jan 15, Special Order XXXXXX indicates the applicant was demoted to senior airman per AFI 36-2502, Enlisted Airman Promotion and Demotion Programs, paragraph 6.3.4, effective 31 Dec 14.

On 6 Apr 15, AF Form 910, for performance period 14 Apr 14 thru 31 Mar 15, indicates he received a “Does Not Meet” rating in block 4, training requirement, which states unsatisfactory technical growth; decertified on six 7-level tasks - failed to hold skill level commensurate with rank.  He received an overall rating of “2” which denotes “Needs Improvement.”  He elected not to provide comments.
Dated 18 Apr 15, a memorandum in regards to redress from the XX MXG/CC, provided by the applicant, indicates the applicant’s request for redress was denied stating although his quality assurance personal evaluation failures occurred during his prior enlistment and served as the basis for his demotion, this was not known by the MXG commander or his squadron commander until after his prior term of enlistment expired.

On 30 Apr 15, DD Form 214, Certificate of Release or Discharge from Active Duty, reflects the applicant was honorably discharged in the grade of senior airman (E-4) after serving 12 years, 1 month and 20 days of active duty.  He was discharged, with a narrative reason for separation of “Reduction in Force.”

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

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 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 8 Dec 21, the Board staff provided the applicant a copy of the liberal consideration guidance (Exhibit I).

AIR FORCE EVALUATION

AFPC/DP2SSM recommends denying the applicant’s request to change his reenlistment eligibility (RE) code to allow him to reenlist.  The applicant was approved to reenlist by his commander on an AF Form 901 which was signed by commander on 6 Oct 14; the applicant then executed a three year and one month reenlistment on 10 Oct 14 establishing a new date of separation (DOS) of 9 Nov 17.  The applicant was forced to separate at his new/adjusted High Year of Tenure (HYT) of 30 Apr 15 based on being demoted to senior airman.   He had served 12 years, 1 month, and 20 days on active duty when he separated on 30 Apr 15 with an honorable character of service.  His RE code was updated to “4D” which denotes “Grade is SrA/E-4, completed at least 9 years TAFMS, but fewer than 16 years TAFMS and is not currently selected for promotion to SSgt/E-5.”  We have validated applicant’s authorized 10 Oct 14 reenlistment, based on applicant using his reenlistment as evidence that guidance for other programs were not followed.  We will not interject on his contentions as that guidance falls under other program owners.  Applicant made no contentions in reference to his reenlistment processing, but only pointed to his reenlistment as he feels it supports his request.

The complete advisory opinion is at Exhibit C.

AFPC/DP2SPP recommends denying the applicant’s request finding no evidence of an error or injustice for demotion to senior airman (E-4) or for promotion to higher grades.  The applicant contends the reason for his demotion is that the commander did not perform a thorough investigation on the matter which led to the demotion.  Without key supporting documentation identifying what led to the demotion such as the results from the investigation; the determination of injustice cannot be verified.  The applicant was issued a referral EPR which closed out on 31 Mar 15.  Section I, block 4 has changed from a 7 to a 5 skill-level.  Section III, block 4 states “Unsatisfactory technical growth; decertified on six 7-level tasks—failed to hold skill-level commensurate with rank.”  Per AFI 36-2502, paragraph 6.3.3.2 states “Demote airmen to the highest possible grade allowed for the skills they have if their Air Force Specialty (AFS) skill level is downgraded for substandard performance.”  The downgraded skill level corresponds with the reason on the demotion order, supporting the demotion authority’s decision.  Insufficient evidence was presented showing proof of injustice for demotion.  The applicant also did not meet the cutoff for any promotion cycles (starting with testing for technical sergeant) in which he was eligible for nor has he reached the level of opportunity to compete for promotion to the ranks of master sergeant, senior master sergeant, and chief master sergeant.

The complete advisory opinion is at Exhibit D.

The AFBCMR Psychological Advisor recommends denying the applicant’s request finding insufficient evidence to support a medical retirement based on his mental health contention.  There was evidence the applicant sought mental health treatment following his return from deployment beginning on 30 Apr 14.  During this initial visit, he had complaints of irritability since returning from deployment and pondered if he had Post-Traumatic Stress Disorder (PTSD) to his provider.  He was not given a PTSD diagnosis but rather Acute Reaction to Stress with Disturbance of Emotions due to not enough information for a confirmed PTSD diagnosis.  He was given a “rule out” of PTSD by his mental health provider and was never officially diagnosed with this condition during service.  The applicant’s service treatment records indicated he began to have complaints of memory issues of not remembering recent events or appointments on 6 Nov 14.  He was referred to neuropsychological testing shortly thereafter and completed testing on 16 Dec 14 and 28 Jan 15.  His test results yielded unremarkable findings for any impairments to his cognitive functioning.  His memory, short and long-term, were found to be intact, there was no evidence of a thought disorder and no impairments were detected with his judgment, insight, and impulse control.  Furthermore, the applicant received neuropsychological testing for memory complaints again post service by the DVA in Nov 15, about seven months post service.  The DVA’s test results were consistent to his test results from service and the DVA added his memory issues were most likely caused by his significant emotional distress of high levels of resentment pertaining to his demotion and separation from the military.  The DVA provider did not find his memory issues caused his poor performance leading to his demotion but rather, were caused by the results and reaction to his demotion.  These test results and findings from the military and DVA would dispute the applicant’s contention of his memory problems causing his poor performance and leading to his demotion.  There was no evidence of a nexus between his memory problems/mental health condition and demotion.  The applicant’s service treatment records find no evidence he had any potentially unfitting mental health conditions that would warrant a referral to the MEB for a medical discharge.  He had a potentially unfitting physical condition of lower back pain and this condition had received an Initial Review in Lieu Of (IRILO) review.  The applicant was found fit for duty, was returned to duty, and he was not referred to the Medical Evaluation Board (MEB) for medical discharge processing.  His mental health condition was never referred for an IRILO review.  The applicant was never placed on a duty limiting conditions profile for his mental health condition, he was never deemed not worldwide qualified due to his mental health condition, and there were no statements by his chain of command in his military records of any observed mental health concerns that may impair his ability to reasonably perform his duties in accordance to his office, grade, rank or rating.  Therefore, his request for a medical disability or retirement for his mental health condition could not be supported and there was no evidence of any error or injustice with his discharge from service.

The applicant’s submitted a DVA Decision Rating document reporting he received a 50 percent rating (40 percent for degenerative arthritis of the spine and 10 percent for right lower extremity radiculopathy, femoral) effective on 21 Feb 17.  For awareness, the military Disability Evaluation System (DES), established to maintain a fit and vital fighting force, can by law, under Title 10, United States Code (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” time of separation and not based on future progression of injury or illness. On the other hand, operating under a different set of laws (Title 38, U.S.C.), with a different purpose, the VA is authorized to offer compensation for any medical condition determined service incurred, without regard to and independent of its demonstrated or proven impact upon a service member’s retainability, fitness to serve, or the length of time since date of discharge. The VA is also empowered to conduct periodic re-evaluations for the purpose of adjusting the disability rating awards (increase or decrease) over the lifetime of the veteran.

The Board may elect to apply liberal consideration to the applicant’s request due to his contention of a mental health condition, however, the applicant’s test results found he did not have any cognitive deficiencies that may have caused his memory problems.  Test results found his short and long-term memory were intact, his judgment, insight, and impulse control were within normal limits, and there was no evidence he had a thought disorder that may explain or cause his memory issues that would affect his poor performance and functioning in the military resulting with his demotion.  Therefore, his memory issues or mental health condition does not excuse, mitigate, or outweigh his discharge.  Additionally, the applicant does not have any unfitting mental health conditions that would lead to early career termination or culminate to a medical discharge or retirement.

The complete advisory opinion is at Exhibit E.

The AFBCMR Medical Advisor recommends denying the applicant’s request finding no error or injustice occurred during the service separation process and or the initiation of the Integrated Disability Evaluation System (IDES).  Therefore, there is insufficient evidence to support the applicant’s request for a change in his overall discharge with regards to his physical health and capabilities.  This applicant’s past physical medical history was extensive, but uncomplicated.  A detailed review of the three electronic medical record data bases revealed clinical visits during each calendar year of his military service.  Recorded physical conditions included intermittent and frequent bouts of pain in his shoulder, limb/leg, mid-back, low back, hip, and ankle.  The vast majority of clinic visits involved his low back, hip, and ankle.  All other physical conditions were either brief in presentation, ruled out, improved to meet a standard of fitness or resolved.  A review of the Aeromedical Services Information Management System (ASIMS) was done, but failed to reveal up to date profiled physical restrictions.  All such physical restriction information was strictly obtained via clinical encounters as captured in the chronology of clinical visits described above.  Over an eight year period (2006 - 2014), clinic encounters revealed the applicant being profiled or recommended for physical restrictions for a total of 52 weeks mainly for his issues of low back, hip, and ankle pain.  The chronology review also revealed inconsistent historical reporting as well as acute flare-ups seemingly occurring in close proximity to scheduled physical fitness testing.  In late Oct 11, the applicant complained of right hip pain since basic military training (BMT), but other encounters noted hip pain was present and constant for 8 and or 10 years.  It was mid 2011 when hip pain was first reported as well as its historical duration.  There was no evidence of established hip pain during the year of BMT (2003).  Similar inconsistent medical histories included the ankle and back pain.  The applicant’s submission package included a statement that he had an MEB done while in service which came back as “return to duty with limitations.”  Although the “return to duty with limitations” was correct, the MEB was not.  Rather the applicant’s diagnosis of chronic back pain and its associated prolonged period of restrictions, was the triggering event that initiated his evaluation via the IDES.  Once a chronic condition is identified, a review is accomplished by the Deployment Availability Working Group (DAWG) to determine if an IRILO an MEB is necessary.  This part of the IDES took place twice in this case. The first DAWG review occurred in Dec 13 (one month after being cleared for deployment) which resulted in “does not warrant an MEB at this time.”  The second DAWG review went farther into the IDES process whereas the applicant was found “unfit for military service,” thus determining that an IRILO should be accomplished; which was appropriately sent to AFPC Medical Evaluation Branch for adjudication.  AFPC’s decision was to return the applicant back to duty with an Assignment Limitation Code (ALC); one of three possible outcomes.  The other two possibilities were to return to duty with no restrictions or be found “not fit for duty” which then and only then would he have continued on to a full MEB.  The IRILO which found him fit for duty, was finalized two days prior to the end of his last profile.  Such dating leaves room for doubt of the accuracy of the physical restrictions necessity.  His stated reason for a 50 percent rating was based on a DVA’s combined impairment rating of 50 percent effective 9 Oct 20.  Previously rated at 40 percent (effective date not available) for degenerative arthritis of the spine.  The additional 10 percent was awarded for right lower extremity arthropathy as of early Oct 20.  The DVA is authorized to offer compensation for any medical condition determined service incurred, without regard to and independent of its demonstrated or proven impact upon a service member’s retainability, fitness to serve, or the length of time since date of discharge.  Provider comments regarding various health conditions were clearly spelled out on the applicant’s separation physical and although documented, the back, hip, or ankle did not rise to any degree of unfitness. Therefore, the proper proceedings through the stages of the IDES were appropriately accomplished.

The complete advisory opinion is at Exhibit F.

AFPC/DP3SP recommends denying the applicant’s request to change his EPRs lower than a 4 rating to a 5 rating.  Evaluators must focus their comments, ratings, and overall performance assessment ratings based on the member’s behavior and duty performance.  Ultimately, evaluators must document how well a member does his/her job and the qualities the individual brings to the job.  In each EPR the applicant has contested, the rater, additional rater, and unit commander have documented and/or concurred with the member’s performance and overall performance assessment ratings.  Both EPRs represent the rating chain’s assessment of the individual’s performance at the time the reports were completed.  Therefore, based on the analysis of the facts and documentation provided, the applicant has provided insufficient evidence to substantiate there was an error or injustice as the EPRs were accomplished according to regulatory/instruction guidance, AFI 36-2406, Officer and Enlisted Evaluations Systems.

The complete advisory opinion is at Exhibit G.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 8 Dec 21 for comment (Exhibit H), but has received no response.

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.  The Board concurs with the rationale and recommendations of the AFBCMR Psychological and Medical Advisors and AFPC/DP3SP and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board also 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).  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-2021-00399 in Executive Session on 15 Dec 21 and 9 Jan 22:

, 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 20 Feb 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFPC/DP2SSM, dated 28 Jul 21.
Exhibit D:	Advisory Opinion, AFPC/DP2SPP, dated 6 Oct 21.
Exhibit E:	Advisory Opinion, AFBCMR Psychological Advisor, dated 1 Dec 21.
Exhibit F:	Advisory Opinion, AFBCMR Medical Advisor, dated 2 Dec 21.
Exhibit G: Advisory Opinion, AFPC/DP3SP, dated 8 Dec 21.
Exhibit H:	Notification of Advisory, SAF/MRBC to Applicant, dated 8 Dec 21.
Exhibit I:  Letter, SAF/MRBC to Applicant (Liberal Consideration), dated 8 Dec 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.