ADDENDUM TO RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-02871-2

XXXXXXXXXXXXXX	COUNSEL: XXXXXXXXXXX

  	HEARING REQUESTED: YES	

APPLICANT’S REQUEST

The Board reconsider her request her not in the line of duty (NILOD) determination be changed to in the line of duty (ILOD).

On 15 Dec 21, the Board granted the applicant’s request for an independent review of her LODs be conducted by individuals outside of the State Air National Guard (ANG).  

RESUME OF THE CASE

The applicant is a technical sergeant (E-6) in the ANG.  

In a DD Form 149, Application for Correction of Military Record, dated 6 Jul 21; the counsel, on behalf of the applicant, requested corrections to her LODs.  The LODs were plagued by errors and procedural issues and resulted in an injustice to the applicant.  The applicant was a full-time technician when placed on Title 32 orders from 14 Aug 17 to 1 Apr 18 for the purpose of completing technical training.  She was eliminated from the formal training course and self-referred to mental health for depression and anxiety.  On 30 Sep 20, she was informed the approving authority determined her diagnoses of adjustment disorder with mixed anxiety and depressed mood, moderate recurrent major depressive disorder (MDD) and other specified anxiety disorder occurred NILOD, not due to misconduct and was existed prior to service (EPTS) and not service aggravated (NSA).  

On 15 Dec 21, the Board considered and partially granted her request.  The Board found counsel provided sufficient evidence to show there were delays, administrative errors and discrepancies in the processing of her LODs.  The Board concurred with and adopted the recommendation of NGB/A1PS that the applicant’s request for an independent review of her LODs be conducted.  However, the Board did not find counsel had sustained the burden of proof required to reverse the NILOD findings to ILOD.  

For an accounting of the applicant’s original request and the rationale of the earlier decision, see the AFBCMR Letter and Record of Proceedings at Exhibit E. 

In a memorandum dated 15 Nov 21, ANGR/CC informed the applicant her appeal package was thoroughly reviewed by their team of experts.  The medical documentation showed a history of non-military related traumatic events, as well as previous anxiety linked to technical school.  The diagnosis of adjustment disorder with mixed anxiety and depressed mood was adjudicated as ILOD and not considered a part of the LOD appeal.  The medical documentation showed the majority of the mental health symptoms occurred after the formal training orders ended and while performing duties in a technician status, not in a military status.  The documents provided identify workplace issues as a technician as the foundation of the generalized anxiety disorder (GAD) and MDD.  Regarding the diagnosis of PTSD, a note from a therapy visit in Apr 19 stated symptoms began in Dec 17, originating from an undisclosed stressful experience.  Based on medical principles and diagnostic criteria, a diagnosis of PTSD requires exposure to actual or threatened death, serious injury, or sexual violence; none were demonstrated in the appeal package.  Therefore, the findings remain NILOD, EPTS-NSA for PTSD, MDD and GAD.  

On 10 Mar 22, the AFBCMR staff determined counsel submitted a timely rebuttal response to the NGB/A1PS advisory on 17 Nov 21.  However, due to an administrative error, the rebuttal response was not considered by the Board.  Counsel contends the advisory opinion failed to acknowledge the depth of injustices committed by the State ANG.  Specifically, the State ANG failed to submit evidence in support of the applicant’s LOD appeal and did not initiate the LOD investigation in a timely manner.  The applicant informed her command she did not want the case manager to have any input on her LOD processing as she previously altered the applicant’s medical records.  Discrepancies included failure to submit a witness statement and missing documents.  There were over 52 pages of supporting documents that were not provided to the LOD Determination Board as evidenced by the advisory.  

On 1 Apr 19, the applicant was referred to psychiatry to be evaluated for PTSD.  On that same date she was evaluated and diagnosed with PTSD, MDD and attention deficit disorder (ADHD).  Seven months later, the diagnosis would be questioned stating the civilian evaluator did not release his personal notes and only provided the date of the encounter.  However, this was inaccurate and her therapist was interviewed by the investigating officer.  Her therapist provided an affidavit confirming the legitimacy of the PTSD diagnosis and made his notes available.  It is a tremendous injustice that a year after the evaluation, the applicant would submit an appeal making her command aware they never reviewed the critical documents.  The applicant made her command aware of her issues and filed an EEO complaint stating her concern.   These compounding errors are why the applicant has been pursuing a fair and neutral investigation.  

The applicant provides psychotherapy treatment plan from her therapist, dated 8 Apr 19 showing she was diagnosed with PTSD, unspecified, MDD, recurrent episode, severe; and ADHD, predominantly inattentive presentation.  In a letter dated 27 Jan 20, her therapist stated the applicant had attended therapy sessions on 31 Oct 19, 3 Dec 19, 13 Jan 20 and 27 Jan 20.  The psychotherapy intake note dated 27 Sep 21 shows diagnosis of PTSD, MDD, ADHD, GAD and panic disorder.    

The applicant’s complete submission 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 finds the evidence presented does not demonstrate an error or injustice to find the applicant’s PTSD, MDD , ADHD and GAD were incurred ILOD.  The applicant requested her NILOD determination be changed to ILOD and an independent review of her LODs be conducted due to allegations of errors and mishandling by her State ANG.  On 15 Dec 21, the Board granted the applicant’s request for an independent review of her LODs but denied the request for an ILOD finding, as recommended by NGB/A1PS.  Due to an administrative error, the Board was not provided counsel’s rebuttal response for review and was unaware NGB/A1PS had completed the independent review.  The applicant was advised in a memorandum dated 15 Nov 21, the ANGR/CC denied the applicant’s appeal and the findings of NILOD, EPTS-NSA would remain.  The Board reconsidered the applicant’s request and conducted its own independent review, to include counsel’s rebuttal response dated 17 Nov 21 and the ANGR/CC memorandum dated 15 Nov 21 denying the applicant’s appeal.  The Board recognizes the applicant struggled academically in her retraining course while on a period of active duty and was eliminated from the formal training course.  While still at technical training and on active duty orders, the applicant self-referred to the mental health clinic and was diagnosed with adjustment disorder.  Since the symptoms began during technical training, the applicant’s adjustment disorder was found ILOD.  However, with respect to the diagnosis of PTSD, MDD and GAD, it appears the applicant’s subsequent mental health issues occurred and were the result of issues she had with her employment as a technician and unrelated to any active duty service.  This is evidenced by the EEO and Congressional complaints regarding allegations HRO denied her request for a change of workload on the basis she was carrying a heavier workload than her co-workers and the circumstances regarding her position description and appraisal. The applicant also contended the wing did not follow standard LOD procedures.  The Board does not dispute there were administrative errors in the processing of her LOD; however, the Board does not find the administrative errors resulted in an injustice to the applicant or that the administrative errors led to an incorrect conclusion of an NILOD determination.  The applicant also alleged she was discriminated against during technical training and instructors failed to respond appropriately during the testing process.  However, counsel has provided no evidence to substantiate this to be the case.  On the contrary, the evidence indicates, the applicant’s elimination from the training course was solely due to her own academic deficiencies and the instructors’ efforts to provide her counseling and study support were unsuccessful.  The Board also notes, as pointed out by ANGR/CC, a diagnosis of PTSD requires exposure to actual or threatened death, serious injury or sexual violence; however, no evidence was provided to show the applicant was exposed to any threat, injury or violence while on a period of active duty.  Counsel also contends the applicant was assigned a 100 percent DVA disability rating as further evidence; however, a DVA rating for service connection is distinctive and does not substantiate a medical condition was incurred ILOD per DAFI 36-2910, Line of Duty (LOD) Determination, Medical Continuation (MEDCON) and Incapacitation (INCAP) Pay.  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-2021-02871-2 in Executive Session on 25 May 22:

 , Panel Chair
 , Panel Member
 , Panel Member

All members voted against correcting the record.  The panel considered the following:
Exhibit E:	Record of Proceedings, w/ Exhibits A-D, dated 30 Jan 22.
Exhibit F:	Letter, ANGRC/CC, dated 15 Nov 21.  
Exhibit G:	Counsel’s Response, w/atchs, dated 17 Nov 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.