RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-01043 COUNSEL: NONE HEARING DESIRED: NO APPLICANT REQUESTS THAT: Her under other than honorable conditions discharge be upgraded to honorable. She be granted a medical discharge/retirement. APPLICANT CONTENDS THAT: She is undergoing a Medical Evaluation Board (MEB) to determine her medical fitness. She is a disabled veteran as rated by the Veteran’s Affairs and she requests a medical separation. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: The applicant entered the Air National Guard on 26 February 1997. On 8 February 2014, the MDNG/AG/AIR recommended the applicant be discharged from the Maryland Air National Guard (MDANG) and the Reserve of the Air Force in the interest of national security. Specifically, on 4 March 2013, the applicant’s security clearance was revoked and she was unable to obtain the required level of clearance for her assignment. On 9 February 2014, the MDANG/JAG found the discharge legally sufficient and recommended the applicant be discharged with service characterized as under other than honorable conditions (UOTHC). On 12 February 2014, the applicant was relieved from her assignment with the Air National Guard. Her discharge was characterized as under other than honorable conditions. She was credited with 15 years, 6 months and 25 days total service for pay. AIR FORCE EVALUATION: NGB/SGPA recommends denial of the applicant’s request. The applicant was injured in March 2003, when she fell during an ice storm while on active duty. Her injury was later found to be in the Line of Duty (LOD). She sought care for pain in her foot while on orders from 1 August 2011 through 2 August 2011. The applicant claimed the pain was in relation to the injuries incurred in 2003 – she was unable to wear boots issued to her for training. She was evaluated and found to have a normal exam through radiology and was returned to duty with an AF Form 422, Notification of Air Force Members Qualification Status, stating that she did not have to wear boots while in training. The applicant was returned to duty after her injury in 2003. She was evaluated again in 2011 and again, returned to duty. She has never been referred to an MEB; therefore, she cannot be separated under medical conditions. The complete NGB/SGPA evaluation is at Exhibit C. NGB/A1PP recommends denial of the applicant’ request. The applicant was injured in March 2003. A Line of Duty (LOD) determination was made confirming the injury occurred while on active duty. She was returned to duty shortly thereafter. Years later, the applicant sought care for pain in her foot in August of 2011 claiming the pain was connected to her injures from her fall in 2003. She was returned to duty after being issued an AF Form 422 stating she was not required to wear military- issued boots due to pain/discomfort. No serious medical concern resulted from either the 2003 or 2011 visit with her health care provider. Both times the applicant sought help for issues with pain she was returned to duty. She was not referred to nor did she meet an MEB; therefore, she cannot be separated under medical conditions. Furthermore, her UOTHC discharge was not connected to any medical issues. The applicant is not eligible to receive a medical discharge. The complete NGB/A1PP evaluation is at Exhibit D. The BCMR Medical Consultant recommends denial of the applicant’s request. The applicant received a UOTHC discharge in the interest of national security. She asks for an "Honorable discharge and medical separation (retirement)." In order for the applicant to receive a medical discharge, there must be a medical condition that precludes retention. She has provided such evidence in the form of the AF Form 469, Duty Limiting Condition Report, initiated on 6 December 2013, placing her on mobility restrictions and referring her through the DES for what was determined a non-duty related condition. That is, by policy, the applicant would only be eligible for review through the DES for "fitness only," since the medical condition would not warrant processing as a compensable disability under AFI 36-3212, Physical Evaluation for Retention, Retirement and Separation. This conclusion was reached by medical officials in 2013, despite the prior In Line of Duty (ILOD) determination approved in October 2011 related to her painful episode on or about 1 August 2011 reportedly related to wear of military boots. However, putting aside arguments for ILOD versus, not ILOD, if the applicant had been concurrently the subject of a medical discharge under AFI 36-3212, which she desires, and the administrative discharge, which she received, her case would have been referred to the Secretary of the Air Force Personnel Council (SAFPC) for a "dual-action" review for determination of which of the two basis for discharge was appropriate. In such cases, SAFPC considers both the gravity of the administrative and medical issues and seeks to determine if there is any causal or mitigating relationship between the administrative infraction(s) and the disqualifying medical condition. The Medical Consultant has not been supplied the specific administrative infractions leading to the applicant's discharge, but opines that, more likely than not, SAFPC would have recommended execution of the approved administrative discharge unless evidence showed a significant causal or mitigation relationship between the medical condition and the basis for administrative discharge. No evidence is provided to indicate existence of a causal or mitigating relationship between the applicant's administrative discharge and her medical condition. With respect to the benefits awarded by the Department of Veterans Affairs (DVA), operating under Title 38, United States Code, the DVA is authorized to offer compensation for any medical condition that it establishes a nexus with military service, without regard to its relationship with an individual's fitness to serve or the narrative reason for discharge. Thus, while the applicant's initial injury of February 2003 occurred during a period of active service, it is apparent that its progression and evolution to include Complex Regional Pain Syndrome was also found service connected; likely based upon the nexus with the ILOD incident of March 2003. The DVA is also authorized to conduct periodic reevaluations for the purpose of adjusting the disability rating awards as the level of impairment for a given medical condition may vary affecting employability over the lifetime of the veteran. The Medical Consultant recommends denial of the applicant's petition to supplant her UOTHC discharge with an Honorable medical separation or retirement. The complete BCMR Medical Consultant’s evaluation is at Exhibit E. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant contends that she was referred to an MEB in 2013, which qualifies her for a medical separation. The medical clinic was required to update their system, as well as place her on medical hold. She has provided a copy of the documents to show an MEB was requested. The applicant’s complete submission, with attachment, is at Exhibit G. ADDITIONAL AIR FORCE EVALUATION: SAFPC recommends upgrading the applicant’s discharge to general (under honorable conditions). AFI 36-3209, Separation and Retirement Procedures for Air National Guard and Air Force Reserve Members, was in effect at the time of the applicant’s discharge. Table 3.1, Rule 49 states when the reason for discharge is in the interest of national security an honorable, general or UOTHC service characterization is authorized. It further shows that SAF approval is not required. However, in accordance with Chapter 3, Administrative Separation or Discharge of ANG or USAFR Enlisted Members, Section 3D Involuntary Separations, paragraph, 3.24, Secretary of the Air Force (SAF), specifically paragraph 3.24.1, “Cases where SAF approval is required prior to discharge must be referred to the Air Force Personnel Council with a legal review attached. These include any case where a characterization of UOTHC is recommended” (emphasis added). Table 3.1 creates an ambiguity by stating SAF approval is not required, but paragraph 3.24.1 makes it clear UOTHC cases must be forwarded to the Air Force Personnel Council for approval. This case was not forwarded to SAFPC for approval of the UOTHC service characterization, per AFI 36-3209, paragraph 3.24.1. Therefore, MDANG lacked the legal authority to execute a discharge with a UOTHC characterization. The command’s clear intent was to give the most negative characterization available. Since MDANG never had the authority to execute a UOTHC discharge, that in itself is clear reason to upgrade a service characterization. In this case, the most negative characterization they had authority to give was a General discharge. In the event the board does not grant a medical separation/retirement, the applicant’s service characterization should be upgraded to general (under honorable conditions) since the executing commander lacked the authority to execute a discharge with a UOTHC service characterization. SAFPC concurs with NGB/SG and AFBCMR Medical Consultant regarding disposition of the application for a medical discharge. The complete SAFPC evaluation is at Exhibit H. APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: A copy of the SAFPC evaluation was forwarded to the applicant on 7 July 2015 for review and comment within 30 days (Exhibit I). As of this date, no response has been received by this office ADDITIONAL AIR FORCE EVALUATION: MDNG/AG/AIR recommends denial. The specific reason for the applicant’s discharge recommendation was the revocation of her security clearance. The applicant was board entitled but waived her right by not responding to the certified letters that were mailed to her residence. Additionally, her pattern of financial and personal misconduct including deceit, false statements and failure to cooperate with investigators all led to the discharge in the interest of national security. The MDANG is aware of the applicant’s request and was recently advised that a UOTHC designation was not submitted for SAF review. The MDANG followed AFI 36-3209, para 3.22 which indicates SAF review is not required; however, they were unaware that further guidance requires SAF review of UOTHC. This error should not detract from the merits of the case and the fact that the applicant’s discharge should remain characterized as UOTHC. The applicant’s request should be denied. Should the Board restore the applicant to an active status, the MDANG would pursue the same action. The complete MDNG/AG/AIR evaluation is at Exhibit J. APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: The applicant maintains she was undergoing an MEB and has previously submitted documentation reflecting an MEB was requested. The applicant also states her unit was aware of her medical issues. She disagrees they had a lack of knowledge and states this shows a pattern of them making decisions without following Air Force guidelines. This is not her opinion, but SAFPC has stated her discharge should be upgraded. A SAF review was not honored and her medical board was not honored. The MDANG was aware of her medical issues as well as her request to medically separate. She did not receive the administrative discharge board rights and the certified letters never reached her residence. Furthermore, she explained to the clearance investigators in detail about her financial issues and medical issues. The applicant’s complete response is at Exhibit L. THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice with regard to the applicant’s request for a medical discharge/retirement. We took notice of the applicant’s complete submission, to include her response to the Air Force advisories, in judging the merits of the case; however, we are not persuaded by the evidence submitted in this appeal that the applicant is entitled to a medical discharge. As noted by the BCMR Medical Consultant, in order for the applicant to receive a medical discharge, there must be a medical condition that precluded retention: the evidence of record does not support that this is the case. Therefore, we agree with the opinion and recommendation of the Air Force offices of primary responsibility and the BCMR Medical Consultant and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. In the absence of evidence to the contrary, we find no basis to recommend granting the applicant a medical discharge. 4. Notwithstanding the above determination, we find some relief is warranted with regard to the applicant’s service characterization. SAF/MRBP notes the MDANG failed to submit the discharge recommendation for a UOTHC service characterization to SAFPC in accordance with AFI 36-3209, paragraph 3.24.1 for approval. Therefore, the MDANG did not have the authority to execute a discharge with service characterized as under other than honorable conditions. Although we note the applicant requests her discharge be upgraded to honorable, we agree with the SAFPC recommendation to upgrade her discharge to general. Accordingly, we recommend the applicant’s record be corrected as indicated below. THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to the APPLICANT be corrected to show that on 11 February 2014, she was discharged with service characterized as general (under honorable conditions). The following members of the Board considered AFBCMR Docket Number BC-2014-01043 in Executive Session on 12 August 2015 under the provisions of AFI 36-2603: All members voted to correct the records as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 26 Feb 14, w/atchs. Exhibit B. Applicant's Master Personnel Records. Exhibit C. Letter, NGB/SGPA, dated 7 Jul 14. Exhibit D. Letter, NGB/A1PP, dated 14 Jul 14. Exhibit E. Letter, BCMR Medical Consultant, dated 17 Oct 14. Exhibit F. Letter, SAF/MRBR, dated 10 Nov 14. Exhibit G. Letter, Applicant’s Response, dated 21 Nov 14, w/atch. Exhibit H. Letter, SAF/MRBP, date 30 Jun 15. Exhibit I. Letter, SAF/MRBR, dated 7 Jul 15. Exhibit J. Letter, MDNG/AG/AIR, dated 25 Nov 14. Exhibit K. Letter, SAF/MRBR, dated 29 Jul 15. Exhibit L. Letter, Applicant’s Response, dated 29 Jul 15.