RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2014-01057 COUNSEL: DVA HEARING DESIRED: NO APPLICANT REQUESTS THAT: Her narrative reason for separation of (Miscellaneous/General Reasons) be changed to a medical discharge reason. APPLICANT CONTENDS THAT: The reason for separation should be medical. Court martial documents revealed that she was sexually assaulted and the defense indicated that she should be medically discharged. It was not until her sexual assault was revealed during the court- martial that she was able to get out. She has Post-Traumatic Stress Disorder (PTSD) as a result of the trauma she received from the sexual assault and has been rated by the Department of Veterans Affairs (DVA) with a 100 percent disability. The applicant’s complete submission, with attachments, is at Exhibit A. STATEMENT OF FACTS: On 27 Jan 09, the applicant initially entered active duty in the Regular Air Force. According to the applicant’s request for separation documents, on 27 Aug 09, her commander recommended approval of her request for separation and submitted her request to the discharge authority for final approval. On 30 Oct 09, the applicant was released from active duty with a reason for separation of miscellaneous/general reasons. She was credited with 9 months and 4 days of active service. On 6 Jun 13, the applicant was rated at 100 percent disability by the DVA for Depression/PTSD, effective 8 Nov 11. AIR FORCE EVALUATION: AFPC/DPSOR recommends denial indicating based on the documentation on file in the master personnel records, the discharge to include the SPD code, narrative reason for separation and character of service was appropriately administered and within the discretion of the discharge authority. The applicant did not provide any evidence that an error or injustice occurred in the processing of her discharge. DPSOR notes the applicant indicated in her request that she did not like being in the Air Force and she regretted her decision to join. Her commander concurred with her request after reviewing the manning for her career field and determining that it was in the best interests of the Air Force that she be separated. Therefore, the applicant's SPD code and narrative reason for separation are correct as reflected on her DD Form 214. Since both the commander and the discharge authority recommended an honorable characterization, the character of service on her DD Form 214 is correct and in accordance with DoD and Air Force instructions. The complete DPSOR evaluation is at Exhibit C. The BCMR Medical Consultant recommends granting the applicant a permanent disability retirement with a compensable disability rating of 30 percent for Depression associated with PTSD with the Veterans Affairs Schedule for Rating Decisions (VASRD) codes 9434- 9411. The Medical Consultant notes based on the provided evidence, the applicant was the victim of a sexual assault in Jul 09 and she requested and was granted a voluntary discharge from the Air Force under the provisions of AFI 36-3208, for Miscellaneous Reasons. The preponderance of administrative documentation supplied for this review consists of the charges lodged against the applicant's assailant [allegations of conspiracy to commit rape, aggravated sexual contact, assault, burglary, and unlawful entry, his pre- trial confinement, appeals for release from confinement, the court-martial testimony, redacted witness statements, and the findings of guilt by the convening authority.] On 23 Apr 09, the applicant presented with depression and grief related to her grandmother's death. Record states, “She was very close to her grandmother and this is the first person she has lost in her life.” Diagnostic Assessment: Bereavement without complications. Disposition: Released without duty limitations. The applicant has supplied post-service medical documentation from the DVA consisting of Compensation & Pension (C&P) examinations and disability rating decisions. Evidence shows the applicant was initially assigned a 30 percent disability rating for Depression/PTSD, effective 31 Oct 09. Addressing the applicant's expressed desire for a medical separation or retirement, 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 military service and were the cause for career termination; and then only for the degree of impairment present at the time of separation and not based post-service progression. Department of Defense Instruction 1332.32, Physical Disability Evaluation, Enclosure 3, Part 3, Standards For Determining Unfitness Due To Physical Disability Or Medical Disqualification, paragraph E3.P3.2.1, in effect at the time of the applicant's discharge, reads: “A Service member shall be considered unfit when the evidence establishes that the member, due to physical [or mental] disability, is unable to reasonably perform the duties of his or her office, grade, rank, or rating (hereafter called duties) to include duties during a remaining period of Reserve obligation.” Despite the unambiguous nature of the applicant's prosecuted sexual assault and the evidence of existence of unrelated mental health issues predating this tragic event, the Medical Consultant has not been supplied objective evidence to indicate that the applicant's mental status at the time of her release from service warranted a Medical Hold for processing through the DES. Specifically, no supporting documentations is supplied to indicate existence of a mental impairment affecting the applicant's worldwide qualification; as would be reflected on an AF Form 422, Physical Profile Serial Report, or the more contemporary AF Form 469, Duty Limiting Condition Report. Indeed, except for the unquantified "duty limitations" imposed on 20 Jul 09 above, the applicant was near consistently released without duty restrictions during the course of her brief period of service, as relates to her Bereavement, Mild Depression, and Adjustment Disorder, each initially diagnosed prior to her sexual assault. Nevertheless, one may ponder whether the applicant's voluntary separation should have been revoked, or that her mental health providers should have intervened in order to conduct a Medical Evaluation Board (MEB) and referral to a Physical Evaluation Board (PEB). Moreover, under today's standards one would expect documented intervention by some type of support team. However, we now know, per disclosure during a VA examination, the applicant may not have disclosed details of her sexual assault to her military mental health officials. Mental health records have not been supplied to refute this inference. Consequently, she was medically cleared for separation. The Medical Consultant is quite aware of the fact that many victims of assault do not report a sexual assault incident for fear of adverse occupational impact, adverse public opinion [blame the victim], or just embarrassment. Unless the Board finds that a medical retirement should serve as reparation for the applicant's assault, the Medical Consultant did not find the objective evidence [as transcribed in the service record by her military providers] sufficient at the time of release from service sufficient to find her unfit for military service at the termination of her period of active military service. On the other hand, should the Board find an injustice has occurred in the applicant's case, considering the likely cumulative reasons for the applicant's election to leave military service, then the Board should find the applicant was not voluntarily discharged from the Air Force, but that she was found unfit for military service for the diagnosis of Depression associated with PTSD, that her condition was initially rated at 50 percent under hyphenated VASRD code 9434-9411, IAW 38 C.F.R. Section 4.129, and that she was placed on the Temporary Disability Retired List (TDRL) for a period of six months, following which she was removed from the TDRL and retired permanently with a 30 percent disability rating, effective her established date of voluntary release from military service. The final 30 percent rating is consistent with the 30 percent disability rating assigned by the DVA; which the applicant carried from the effective date of her separation up until it was increased to 100 percent in Jun 13 and which up to that time depicted an intervening period of relative stability. The complete BCMR Medical Consultant evaluation is at Exhibit D. APPLICANT'S REVIEW OF AIR FORCE EVALUATION: Copies of the Air Force evaluation were forwarded to the applicant on 12 Nov 14 for review and comment within 30 days (Exhibit E). As of this date, no response has been received by this office. ADDITIONAL AIR FORCE EVALUATION: The Clinical Psychology Consultant is in agreement with the BCMR Medical Consultant recommendation the applicant be placed on the TDRL with a compensable disability rating of 50 percent from the date of her discharge, with a permanent medical retirement at 30 percent after six months (on the TDRL) to fall in line with her Jan 10 VA assessment. The Board is advised that despite the advent of electronic medical records Air Force mental health policy has required providers to “double document” in such a way that the electronic medical record contains fewer details than a separate hardcopy chart. This is presumably intended to protect sensitive details of a patient’s life from unnecessary exposure to others who may have access to electronic medical records. However, a collateral consequence of this approach to recordkeeping is detailed records of a patient’s mental health care may often be unobtainable after just a few years of terminating care because records were sent for permanent disposition. This leaves an applicant with access to copies of electronic records that are significantly less detailed, rendering the task of showing service impairment more daunting. The level of detail in the electronic medical record has been known to vary considerably over time and is often based on provider preference or clinic policy. This Consultant is aware of recent efforts within the Air Force Medical Service to standardize documentation across mental health clinics and to enhance the quality of information placed into the electronic medical record. However, this applicant’s case predates these changes and a considerably different opinion may be rendered in this case based solely on a review of electronic medical records versus inclusion of detailed notes from the applicant’s hardcopy mental health chart. This is evidenced by a review of the detailed notes embedded within court- martial documentation as described in the FACTS section. Indeed, this Consultant observes information contained within the notes printed from the electronic medical record contain so little information that it is difficult to determine the status of the applicant’s mental disorder at that time. The two detailed notes uncovered from court-martial proceedings clearly indicate the applicant was profiled for her disorder. Unfortunately, the mental health provider writing those notes did not explain why the applicant was not worldwide qualified (e.g., new diagnosis, recent medication adjustment, poor fit for military service, etc.). The Clinical Psychology Consultant argues the totality of the materials supplied for this case suggest although the applicant was experiencing significant depressive symptoms prior to her sexual assault the additive effect from symptoms of posttraumatic stress stemming from the assault led to the granting of an early release after less than a year of service. This Consultant advises that the results of her VA compensation and pension exam generally support this conclusion given its relative proximity to her separation. This Consultant is aware of the numerous stresses experienced by victims of sexual assault that, when combined with previous depressive symptoms as in this case, could lead a victim to select a quick exit from military service in hopes of obtaining immediate relief. The Clinical Psychology Consultant observes such relief did not occur for this applicant despite the release from her military service obligation. The BCMR Medical Consultant has already noted the lack of clear objective evidence in this case to support the conclusion that this applicant was errantly overlooked for disability evaluation system processing. The Clinical Psychology Consultant argues that the few detailed mental health records available for this case combined with subsequent VA documentation and court-martial evidence paints a picture of an emotionally distressed airman who was suffering from a mental health condition that more likely than not rendered her unfit for military service. The Clinical Psychology Consultant reminds the applicant that the Military Department operates under Title 10, United States Code (U.S.C.), and must base its actions upon evidence available at the “snap shot” in time of final military disposition. Therefore, the progression of her condition that resulted in her current 100 percent disability rating from the VA does not equate to the same rating at discharge from military service. Alternatively, the VA operates under a different set of laws (Title 38, U.S.C.), with a different purpose, and is authorized to offer service connection and compensation for any medical condition for which it has established a nexus with military service regardless of the narrative reason for separation or the length of time transpired since discharge. The VA is also permitted to reassess a veterans condition periodically and adjust ratings accordingly. The complete Clinical Psychology Consultant evaluation is at Exhibit F. APPLICANT'S REVIEW OF THE ADDITIONAL AIR FORCE EVALUATION: The applicant notes that she was proud of the time spent in the Air Force and had the circumstances been different she would have made a career in the Air Force. The applicant reiterated the circumstances leading up to her early separation and noted that she was very depressed subsequent to the sexual assault and did not have much of an appetite and barely slept. Subsequent to her separation, she tried to act as though nothing had happened and to go back to her life prior to military service; however, she had to go back for the court- martial and says the whole experience traumatized her even more. Between her anger, drug use, depression, etc., she has not been the person she once was making it very hard to make friends. She is being treated by the VA and has been seeing a therapist every week for a year and a half. She is bothered by her DD Form 214 because it invokes questions every time she has to show it to someone. The applicant's complete response, with attachments, is at Exhibit H. THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an injustice. After a thorough review of the evidence of record and the applicant’s complete submission, we believe the applicant is the victim of an error or injustice. We note the comments of AFPC/DPSOR indicating that relief should be denied because the applicant’s records contain no documentation substantiating an error or injustice in the discharge process. Notwithstanding the recommendation of DPSOR, we note the analyses of the BCMR Medical Consultant and the BCMR Psychology Consultant who also found no error in the discharge; however, in our view, when looking at the few detailed mental health records available, combined with subsequent VA documentation and court-martial evidence, paints a picture of an emotionally distressed airman who was suffering from a mental health condition that more likely than not rendered her unfit for military service. Therefore, we direct the relief proposed by the BCMR Medical Consultant that the applicant be placed on the TDRL with a compensable disability rating of 50 percent and then permanently retired and rated at 30 percent. We believe this approach presents the applicant a fair and equitable determination in her case. Accordingly, we recommend the applicant’s records 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: a. On 29 Oct 09, she was found unfit to perform the duties of her office, rank, grade, or rating by reason of physical disability, incurred while she was entitled to receive basic pay; the diagnosis in her case was Depression associated with Post- Traumatic Stress Disorder (PTSD), that her condition was under hyphenated VASRD code 9434-9411; with a disability rating of 50 percent; the degree of impairment was temporary; 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 received in the line of duty as a direct result of armed conflict or caused by an instrumentality of war and was not combat-related. b. On 29 Oct 09, she was honorably discharged from active duty and on 30 Oct 09, her name was placed on the Temporary Disability Retired List (TDRL) with a compensable disability rating of 50 percent. c. On 30 April 10, the applicant was removed from the TDRL and transferred to the Permanent Disability Retired List (PDRL) with a compensable disability rating of 30 percent. d. Her election of the Survivor Benefit Plan option will be corrected in accordance with her expressed preferences and/or as otherwise provided for by law or the Code of Federal Regulations. The following members of the Board considered AFBCMR Docket Number BC-2014-01057 in Executive Session on 27 Aug 15 under the provisions of AFI 36-2603: , Panel Chair , Member , Member All members voted to correct the records as recommended. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 14 Feb 14, w/atchs. Exhibit B. Pertinent Excerpts from Personnel Records. Exhibit C. Letter, AFPC/DPSOR, dated 7 Apr 14. Exhibit D. Letter, BCMR Medical Consultant, dated 21 Oct 14. Exhibit E. Letter, SAF/MRBR, dated 12 Nov 14. Exhibit F. Letter, BCMR Psychology Consultant, Dated 12 Jun 15. Exhibit G. Letter, SAF/MRBR, dated 18 Jun 15. Exhibit H. Letter, Applicant, dated 5 Jul 15, w/atchs.