AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS 

RECORD OF PROCEEDINGS 

IN THE MATTER OF: 

DOCKET NUMBER:  97- 01142 

4 

HEARING DESIRED:  YES 

APPLICANT REQUESTS THAT: 
Her records be corrected to reflect that she retired by reason of 
physical  disability  with  a  compensable  disability  rating  of 
100 percent, with no deduction for any willful noncompliance. 

APPLICANT CONTENDS THAT: 

The findings of the Formal Physical Evaluation Board  (FPEB) that 
the applicant was willfully noncompliant with her medications was 
clearly  erroneous.  The  supporting  letters  provided  with  this 
package  from her  treating physicians  show that this  is not  the 
case. 
The 50 percent disability rating appeared to be arbitrarily given 
by  the  FPEB,  as  Dr.  M---  testified  that  the  applicant was  100 
percent disabled. 
In support 05  her appeal, the applicant provided statements from 
her  counsel  and  a  medical  doctor,  extracts  from  her  military 
personnel  and  medical  records,  and  other  documents  associated 
with the matter under review. 

STATEMENT OF FACTS: 
Applicant  was  appointed  a  second  lieutenant  (Medical Service 
Corps  (MSC)), Reserve  of  the Air  Force on  27  Nov  91. 
She was 
appointed a captain  (Medical Corps), Reserve of the Air Force on 
1 Jun 95.  She was voluntarily ordered to extended active duty on 
11 Jun 95. 
Available documentation reflects that the applicant was referred 
to a MEB  at Wilford Hall Medical Center, Lackland AFB, Texas on 
18 Apr  96. 
Based  on the medical data provided  to the Informal 
Physical Evaluation Board  (IPEB) , the applicant was  found to be 
unfit  for  continued  military  service  on  7  May  96  based  on  a 

diagnosis of Bipolar I Disorder.  The IPEB recommended that the 
applicant  be  given  a  disability  discharge  under  other  than 
Chapter  61,  10  U.S.C.  for  what  they  perceived  as  a  medical 
condition  that  existed  prior  to  service  without  service 
The  applicant  nonconcurred  with  the  IPEB's 
aggravation. 
recommendation and requested a formal hearing which was scheduled 
for.18  Jun 96. 
On 28  Jun 96,  due to her medical condition whish 
was  confirmed  by  her  doctor,  she  submitted  a  waiver  of  her 
appearance to the Formal Physical Evaluation Board  (FPEB).  She 
also  requested  that  in  her  absence  she  be  represented by  her 
counsel. 
The  applicant's  waiver  was  approved  by  the  FPEB 
President. 
The FPEB convened on 28  Jun 96  and found the applicant unfit for 
continued military service and recommended she be discharged with 
severance pay  and  a  zero percent  disability  rating  (Le., a  50 
percent  disability rating  less a  50 percent  deduction  for non- 
compliance).  The FPEB commented that there were two instances of 
member's  failure to comply with sound medical advise, either one 
of  which  is  independently  sufficient  for  a  full  deduction  for 
willful  non-compliance. 
The  applicant's  legal  counsel  was 
briefed  on  these  findings,  non-concurred  with  the  FPEB's 
recommendation, and forwarded a 'written rebuttal on behalf of his 
client  to  the  Secretary  of  the  Air  Force  Personnel  Council 
(SAFPC) . 
Upon reviewing of the case file, the SAFPC noted that the member 
was  hospitalized  for  her  disorder  at  the  time  of  her  formal 
board. 
Based  on  this  information,  the  council  requested  an 
updated  medical  addendum  reflecting  her  current  status, 
prognosis,  and  social and  industrial impairment.  A  psychiatric 
evaluation  was  conducted  at  Wilford  Hall  Medical  Center  on 
The evaluation  concluded that  her  condition at  the 
12 Aug  96. 
time of the evaluation had greatly improved with respect to her 
bipolar symptoms.  On 23  Aug  96,  after a thorough review of the 
entire  case  file,  the  applicant's  extensive  rebuttal  and  the 
updated medical  information, officials within the office of the 
Secretary  of  the  Air  Force  concurred  with  the  findings  and 
recommendations of the  FPEB and  directed that  the  applicant  be 
discharged with  severance pay  with  a disability  rating of  zero 
(0) percent. 
Applicant  was  honorably  discharged  on  2 9   Oct  9 6   under  the 
provisions  of  AFI  36- 3212  (Disability -  Entitled  to  Severance 
Pay).  She was  credited with  1 year,  4  months,  and  1 9   days  of 
active duty service. 

AIR FORCE EVALUATION: 
The  BCMR  Medical  Consultant  reviewed  this  application  and 
indicated that the applicant developed a bipolar disorder during 
the course of her active duty service, a condition which had not 

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AFBCMR 97- 01142 

J 

been  diagnosed prior  to her  service  (as suggested by  the  IPEB) 
nor which was aggravated by  "willful noncompliance" as the FPEB 
found.  A  decision by  the couple to conceive a  child  could be 
argued as being  inappropriate at this particular point  in time, 
but the decisions reached by them in order to achieve this goal 
should not be used to totally eliminate any award of disability 
entitlement her psychiatric disorder engendered.  In the Medical 
Consultant's  view,  it  is  clear  from  the  review  of  the  records  . 
that an injustice has occurred in this case. 

. 

The  Medical  Consultant  is  of  the  opinion  that  the  applicant 
should receive relief from the disability evaluation  system and 
have the disability award reinstated at  30 percent based  on her 
finding  of  "definite"  social  and 
treating  psychiatrist's 
industrial impairment.  The previous  50 percent  level of  award 
which the IPEB and FPEB had agreed on based on their assessment 
of  "considerable" social  and  industrial  impairment  prior  to 
applicant's  August hospital discharge was no longer valid at the 
time of the Personnel Council review. 
A  complete  copy  of  the  Medical  Consultant's  evaluation  is  at 
Exhibit C. 

The  Physical  Disability  Division,  AFPC/DPPD,  reviewed  this 
application  and  recommended  denial. 
According  to  DPPD,  the 
purpose of the military disability system is to maintain fit and 
vital force by  separating members who are unable to perform the 
duties of their grade, office, rank or rating.  Those members who 
are separated or retired by reason of physical disability may be 
eligible,  if  otherwise  qualified,  for  certain  disability 
compensations. 
Eligibility  for  disability  processing  is 
established by  a Medical Evaluation Board  (MEB) when that board 
finds that the member may not be qualified for continued military 
service.  The decision to conduct an MEB is made by the medical 
treatment facility providing health care to the member. 
DPPD  indicated  that  they  do  not  concur  with  the  advisory  and 
recommendations  of  the  Medical  Consultant.  While  the  Medical 
Consultant may have a different opinion as to the appropriateness 
of  assessing  a  noncompliance  factor  in  determining  the 
compensable disability  of  the  applicant  (a determination under 
the purview of the PEB not MEB process), his  subjective opinion 
does not outweigh that of the other eight senior officials-on the 
FPEB and the Air  Force Personnel Board.  There was no error or 
injustice in the processing of the applicant's disability case. 

In DPPD's  view, the applicant has not  submitted any material or 
documentation to show she was inappropriately rated or processed 
under the military disability evaluation system.  She was granted 
all  rights  to which  she was  entitled  under  disability  law  and 
departmental  policy  in  effect  at  the  time  of  her  disability 
discharge. 

3 

AFBCMR 97-01142 

, 

A complete copy of the DPPD evaluation is at Exhibit D. 

APPLICANT'S REVIEW OF AIR FORCE EVALUATION: 

Counsel indicated that, while they believe that the BCMR Medical 
Consultant was on track, they also believe the minimum disability 
rating should be at least 50 percent. 
Counsel's  complete response and  additional documentary  evidence 
are at Exhibit F. 

THE BOARD CONCLUDES THAT: 

The applicant has exhausted all remedies provided by existing 

1. 
law or regulations. 
2.  The application was timely filed. 
3 .   Sufficient  relevant  evidence  has  been  presented  to 
demonstrate the existence of probable injustice.  After a careful 
review  of  the  available  evidence,  we  are  of  the  opinion  that 
corrective action is warranted in this case.  In this respect, we 
note that the applicant was diagnosed with a bipolar disorder and 
was  found  by  her  treating  psychiatrist  to  have  a  "definite" 
social and industrial impairment.  Furthermore, we are persuaded 
that  the  applicant  was  -not willfully  noncompliant  when  she 
discontinued treatment  for her  condition prior  to  conceiving  a 
child  and  when  she declined  treatment  after becoming  pregnant. 
In  the  first  instance,  it  appears  that  the  applicant's  drug 
treatment  was  discontinued  because  the  applicant  was  feeling 
better  and  not  symptomatic.  In  the  second,  we  note  that  the 
applicant was in her second trimester of pregnancy.  In our view, 
for  the  applicant  to  decline  treatment  while  pregnant  was 
reasonable.  While one could question the appropriateness of the 
applicant's  decision  to  conceive  a  child  at  the  time,  in  our 
view, the elimination of an award of a disability entitlement for 
her  psychiatric  disorder  was  a  punitive  act  based  on  the 
applicant's  personal  decision.  Therefore,  we  believe  that  the 
applicant should be afforded some relief.  We  are not persuaded 
that  the  evidence  pertaining  to  the  applicant's  condition 
supports  the  award  of  a  compensable  rating  of  50  percent. 
However, to  remove the possibility  of  an  injustice, we  believe 
that the recommendation by  the BCMR Medical Consultant that the 
applicant  be  awarded  a  compensable  rating  of  30  percent  is 
Accordingly,  we  recommend  that  the  applicant's 
appropriate. 
records be corrected as indicated below. 

4 

AFBCMR 97-01142 

THE BOARD RECOMMENDS THAT: 

The pertinent military records of the Department of the Air Force 
relating to APPLICANT, be corrected to show that: 

a.  On 28  Oct 96,  she was found unfit to perform the duties 
of  her  office,  rank,  grade  or  rating  by  reason  of  physical 
disability incurred while entitled to receive basic pay; that the 
diagnosis in her case was Bipolar I Disorder, VA Diagnostic Code 
9206,  rated at 30  percent; that the compensable percentage was 30 
percent; and that the degree of impairment might be permanent. 

b. 

She was not honorably discharged under the provisions of 
AFI 36- 3212  on 2 9   Oct 96,  but, on that date, her name was placed 
on the Temporary Disability Retired List  (TDRL) under the 
provisions of AFI 36- 3212  and 10 U.S.C.  1202. 

The following members of the Board considered this application in 
Executive Session on 1 9   May  98,  under the provisions of AFI 
36- 
2603: 

Ms.  Patricia J. Zarodkiewicz, Panel Chair 
Mr. Jackson A. Hauslein, Member 
Mr. Robert W.  Zook, Member 

All members  voted  to correct the records, as recommended. 
following documentary evidence was considered: 

The 

Exhibit A.  DD Form 149,  dated 6  Jan 97,  w/atchs. 
Exhibit B.  Applicant's Master Personnel Records. 
Exhibit C.  Letter, BCMR Medical Consultant, 
Exhibit D.  Letter, AFPC/DPPD, dated 12 Sep 97. 
Exhibit E.  Letter, SAF/MIBR, dated 6  Oct 97. 
Exhibit F.  Letter, counsel, dated 2 0   Nov 97, 

dated 30  Jun 97. 

w/atch. 

PATRICI~J. ZARODKIEWICZ 
Panel Chair 

5 

AFBCMR 97- 01142 

DEPARTMENT OF THE AIR FORCE 

WASHINGTON, DC 

Office of the Assistant Secretary 

AFBCMR 97-0 1 142 

MEMORANDUM FOR THE CHIEF OF STAFF 

Having received and considered the recommendation of the Air Force Board for 

Correction of Military Records and under the authority of Section 1552, Title 10, United States 
Code (70A Stat 116), it is directed that: 

records of the Department of the Air Force relating t 
corrected to show that: 

a.  On 28 Oct 96, she was found unfit to perform the duties of her ofice, rank, 

grade or rating by reason of physical disability incurred while entitled to receive basic pay; that 
the diagnosis in her case was Bipolar I Disorder, VA Diagnostic Code 9206, rated at 30 percent; 
that the compensable percentage was 30 percent; and that the degree of impairment might be 
permanent. 

b.  She was not honorably discharged under the provisions of AFI 36-3212 on 

29 Oct 96, but, on that date, her name was placed on the Temporary Disability Retired List 
(TDRL) under the provisions of AFI 36-3212 and 10 U.S.C.  1202. 

Air Force Review B&ds  Agency