ADDENDUM TO
RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:	DOCKET NUMBER:  BC-2010-02989

		COUNSEL:  NO

		HEARING DESIRED:  NOT INDICATED


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APPLICANT REQUESTS THAT:

His records be corrected to reflect he was medically separated.  

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RESUME OF CASE:

On 23 Jun 11, the Board considered the applicant’s request and determined that it would not be in the interest of justice to waive the applicant’s failure to timely file his request.  In the initial case, the applicant requested his records be changed to reflect he was medically discharged, as well as he receive recognition of a heroic act.  However, because the applicant did not file within three years after the alleged error or injustice was discovered as required by Title 10 U.S.C § 1552 and Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records, his application was rejected as untimely.  In addition, he did not demonstrate a plausible reason for the delay in filing, and the Board was not persuaded that the record raised issues of error or injustice which required resolution on its merits.  For a description of the facts and circumstances of the Board’s original consideration of his case, see the Record of Proceedings at Exhibit F.

In two newly submitted DD Form 149s, dated 31 Jan 13 and 6 Dec 13, the applicant requests reconsideration of his request for a medical discharge in lieu of an honorable discharge.  On behalf of the applicant, an accredited veterans administration claims agent/veterans advocate, indicated subsequent to the Board’s original decision, he was diagnosed with an aggravated chronic mental health condition and was awarded a combined compensable disability rating of 50 percent (Major Depressive Disorder) by the Department of Veterans Affairs (DVA).  He further argues the persistent and performance deficiencies which made the applicant unsuitable to continue to serve are the very same deficiencies seen in individuals suffering with Major Depressive Disorders.  Also, the applicant submitted a supporting statement from the director of veterans’ affairs posttraumatic stress disorder (PTSD) program, attesting to his service connected psychiatric and chronic medical conditions.  It is the applicant’s belief, based upon the DVA rating decision, his case warrants an additional review.  

The applicant’s complete submission, with attachments, is at Exhibit G.

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AIR FORCE EVALUATION:

The AFBCMR Medical Consultant recommends denial of the applicant’s request in adding PTSD to his military service record.  The applicant’s record contains numerous derogatory documentations, to include an Article 15 and a court martial.  In addition, his mental health evaluations concluded the applicant suffered from a paranoid personality disorder without overt psychosis or as psychiatric disorder.  As such, the applicant’s persistent pattern of behavioral and performance deficiencies resulted in an administrative discharge.  While the DVA has established the applicant incurred a stressor in the fire event that occurred at the U-Tapao Airfield in Thailand, this alone does not establish the diagnosis of PTSD as an unfitting condition at the time the applicant was administratively discharged from active duty.  The pivotal question essential for examining whether an error or injustice occurred based upon newly developed information from the VA is whether there is clear and convincing evidence of PTSD as an unfitting condition at the time of service termination.  In that respect, the DVA indicated that while a concession is made in recognition of the stressor related to the fire event, there is “no evidence of a diagnosis of PTSD to link to that stressor” and failed to establish any service connection.  This conclusion is consistent with findings from numerous mental health evaluations related to inappropriate behavior and misconduct throughout the applicant’s period of military service, including prior to the airfield incident.  There is insufficient evidence that PTSD was an unfitting mental health condition at the time his separation.  The military Disability Evaluation System (DES) offers 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 time of separation and not based on future occurrences.  On the other hand, the DVA is authorized to offer compensation for any medical condition determined service incurred, without regard to its demonstrated or proven impact upon a service member’s fitness for continued service or narrative reason for release from military service; nor the intervening or transpired period since the date of separation.  The DVA is also empowered to conduct periodic re-evaluations for the purpose of adjusting the disability rating awards. 

A complete copy of the AFBCMR Medical Consultant evaluation is at Exhibit H.  

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APPLICANT’S REVIEW OF THE AIR FORCE EVALUATION:

A copy of the AFBCMR Medical Consultant evaluation was forwarded to the applicant on 12 Mar 14 for review and comment within 30 days.  As of this date, no response has been received by this office (Exhibit I).  

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THE BOARD CONCLUDES THAT:

After again reviewing this application and the evidence provided in support of his appeal, we remain unconvinced the applicant has been a victim of an error or injustice.  We have previously determined the applicant did not file his application within three years after the alleged error or injustice was discovered as required by Title 10, United States Code, Section 1552 and Air Force Instruction 36-2603, Air Force Board for Correction of Military Records, and rejected his application as untimely.  He has not shown a plausible reason for the delay in filing, and we remain unpersuaded the record raises issues of error or injustice which require resolution on the merits.  In support of his request for reconsideration of our previous decision, the applicant provides two supporting statements attesting to how his service connected disabilities of major depressive disorder and post-traumatic stress disorder (PTSD) support the applicant’s argument that timeliness should be waived and his records should be corrected as requested.  However, while we find these statements and the documentation from the Department of Veterans Affairs (DVA) new, we do not find them relevant.  In this respect, we note that while the two supporting statements indicate the applicant suffers from major depressive disorder and PTSD, the applicant has provided no documentary evidence whatsoever indicating that the DVA has granted service connection for these conditions since our initial consideration of this case.  While he has provided a copy of a letter from the DVA conceding that a potential PTSD stressor did take place during his service, such a finding does not constitute a determination that his purported ailments were caused or aggravated by his military service.  In point of fact, the applicant has also provided a DVA rating decision, dated 1 Oct 13, indicating that their 2009 denial of his PTSD claim was continued.  Therefore, while the applicant argues that recent determinations by the DVA constitute new and relevant evidence that should form basis of our reconsideration of this case, our review of the evidence indicates that the DVA’s position on the applicant’s service connected disabilities has not changed since our initial consideration of this case.  Therefore, as there is no new finding by the DVA that would give rise to a request for reconsideration of our previous decision, we find no basis to reconsider the applicant’s case.

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THE BOARD DETERMINES THAT:

The applicant be notified the evidence did not meet the criteria for reconsideration and the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered AFBCMR Docket Number BC-2010-02989 in Executive Session on 10 Jun 14, under the provisions of AFI 36-2603:

		Panel Chair
		Member
		Member

The following documentary evidence was considered:

    Exhibit F.  Record of Proceedings, dated 23 Jun 11, w/atchs.
    Exhibit G.  DD Forms 149, dated 31 Jan 13 and 6 Dec 13,
                w/atchs.
    Exhibit H.  Letter, AFBCMR, dated 3 Apr 14. 
    Exhibit I.  Letter, SAF/MRBR, dated 30 Apr 14.




                                   
                                   Panel Chair