RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2013-00072
	XXXXXXX	COUNSEL: XXXXXXXXXX
		HEARING DESIRED: YES

________________________________________________________________

APPLICANT REQUESTS THAT:

1.  The three year time limitation to submit a request to the 
Air Force Board for Correction of Military Records (AFBCMR) be 
waived.

2.  She be given a 20 year active duty retirement with full 
retirement benefits.

3.  She be promoted to the grade of senior master sergeant 
(SMSgt, E-8).

4.  She be compensated for out of pocket medical expenses 
directly related to her Line of Duty (LOD) conditions.

5.  She be given back pay and points accrual for 12 years of 
constructive active reserve credit at the pay grade of Master 
Sergeant (MSgt, E-7).

6.  She receive any additional equitable relief which the AFBCMR 
deems appropriate.  

7.  This application be referred to the Administrative Law 
Division of the Office of the Judge Advocate General (JAG) for 
further advice and guidance.

________________________________________________________________

APPLICANT CONTENDS THAT:

The applicant’s counsel presents the following major 
contentions:

1.  The Air Force failed to follow the guidance provided in AFI 
36-3212, Physical Evaluation for Retention, Retirement, and 
Separation, by failing to transfer her to another unit as she 
had proven that she could perform her duties.

2.  The Air Force failed to remove her from a hostile work 
environment.  Had the Air Force done so, she would have 
successfully completed her Air Force Career and retired at the 
20 year point.

3.  She was prevented from promotion to the grade of SMSgt in an 
unjust and arbitrary manner.
4.  While she acknowledges that 10 USC § 1552, Correction of 
Military Records: Claims Incident Thereto and AFI 36-2603, Air 
Force Board for Correction of Military Records (AFBCMR), state 
that corrections shall be applied for within three years of 
discovery.  Her mental condition, her failure to be counseled as 
required by AFI 36-2131, Administration of Sanctuary in the Air 
Reserve Components and her quality service are reasons waiving 
the three year requirement would be in the best interests of 
justice.

In support of her request, the applicant provides copies of her 
counsel’s 15-page statement with 21 exhibits, which include AF 
Form 356, Findings and Recommended Disposition of USAF Physical 
Evaluation Board; Department of Veterans Affairs (DVA) Rating 
Decision, LOD Report, medical documentation, medical expenses 
and various other documents associated with her requests.

Her complete submission, with attachments, is at Exhibit A.

________________________________________________________________

STATEMENT OF FACTS:

On 16 Feb 1982, the applicant enlisted in the Air Force Reserve.

The applicant developed severe mental health issues that were 
deemed In the Line of Duty (ILOD) on 31 Jan 2001.

On 6 Aug 2001, the Informal Physical Evaluation Board (IPEB) 
rated the applicant’s Major Depressive Disorder and recommended 
discharge with severance pay with a disability rating of 
10 percent.

On 2 Oct 2001, the applicant was assigned to the Retired Reserve 
Section effective 26 Sep 2001, eligible for retired pay under 
10 USC § 12731.  She had 19 years, 1 month and 8 days 
satisfactory federal service.

According to the 23 Apr 2008, DVA Rating decision provided by 
the applicant, on 6 Nov 2001, her medical condition of major 
depressive disorder with panic disorder, was increased from 
50 percent to 100 percent.

The remaining relevant facts pertaining to this application are 
contained in the letters prepared by the appropriate offices of 
the Air Force at Exhibits C, D and F.

________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPFD recommends denial.  DPFD states that the preponderance 
of evidence reflects that no error or injustice occurred during 
the disability process or at the time of separation.  Because 
the applicant was a member of the Air Force Reserve when 
discharged in 2001, the record of her evaluation by the Physical 
Evaluation Board (PEB) are not contained in the Automated 
Records Management System.  As such, some information available 
in conducting this review is reflected in the Military Personnel 
Data System (MilPDS) and the documents provided by the 
applicant.

On 6 Aug 2001, the IPEB reviewed the applicant's medical board 
case for major depressive disorder and recommended she be 
discharged with severance pay with a disability rating of 
10 percent.  This recommendation was sent to the applicant on 
14 Aug 2001 and on 28 Aug 2001, she concurred with the findings.  
She had over eighteen years of satisfactory service and had the 
option to elect  transfer to the Inactive Status List Reserve 
Section (ISLRS) for the purpose of applying for a Reserve 
retirement at age 60 under Title 10, U.S.C., § 12731, in lieu of 
being discharged with severance pay.  Per the screen shot in the 
Military Personnel Data System, on 31 Aug 2001, the applicant 
elected transfer to ISLRS for the purpose of applying for a 
Reserve Retirement at age 60.  A discharge message was sent to 
her unit indicating she had exercised this option.  Reserve 
Order EK-0006 issued on 2 Oct 2001, assigned the applicant to 
the Retired Reserve Section effective 26 Sep 2001.

The complete DPFD evaluation, with attachments, is at Exhibit C.

AFRC/A1K recommends denial.  A1K states that the applicant 
acknowledged and accepted the findings of the PEB.  As such, 
absent an Air Force level military medical authoritative source 
advising that the applicant's medical conditions did not warrant 
the decision made by the PEB; there is no basis for lending 
support to the applicant’s claims.

1.  The applicant requests a waiver of the customary three year 
statute of limitations. However, this request would be more 
appropriately addressed by the AFBCMR; therefore, A1K does not 
make a recommendation.

2.  Regarding the applicant’s request that she be given a 
20 year active duty retirement with full retirement benefits, 
A1K states that her medical case which included the applicable 
documentation that ultimately led to a finding of ILOD was 
appropriately reviewed and a determination was made on that case 
by the PEB.  The findings and recommended disposition of the PEB 
was that the applicant was entitled to be discharged with 
severance pay.  Based on her Time in Service (TIS) and grade, 
she was awarded approximately $43,000, subsequently transferred 
to the Retired Reserve with the opportunity to receive retired 
pay at age 60 (Reference: Reserve Order EK-0006, 2 Oct 2001, 
published by HQ ARPC).  The applicant acknowledged and accepted 
those findings.

3.  In order to be promoted to the grade of SMSgt, she must have 
been recommended by the assigned supervisor and approved by the 
promotion authority in order to be considered and promoted to 
the next higher enlisted grade.  It is solely at the discretion 
of the assigned supervisor to recommend promotion to the 
promotion authority when an individual has met the promotion 
eligibility requirements for promotion to the next higher grade. 
There is no supporting documentary evidence provided by the 
applicant from the required sources mentioned that validates her 
claim that there was intent to promote her to the next higher 
enlisted grade which was not properly enacted upon.

4.  With regard to her request for out of pocket medical 
expenses that were directly related to her LOD conditions, A1K 
states that based on the PEB findings and recommendations and 
ultimate delivery of severance pay based on those findings, 
there is no viable basis for this request.  She acknowledged and 
accepted the findings of the PEB.  Regarding her request for 
back pay and points accrual for 12 years of constructive active 
reserve credit at the pay grade of MSgt, A1K states that per the 
PEB findings and recommendations and ultimate delivery of 
severance pay based on those findings, there is no viable basis 
for this request.

The complete A1K evaluation is at Exhibit D.

________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant certainly agrees that in 2001 a PEB recommended 
that she be discharged with severance pay with a disability 
rating of 10 percent.  However, this recommendation occurred 
after she was within the "Sanctuary Zone" contemplated in AFI 
36-2131.  For that reason, any alleged consent on the part of 
her being separated or discharged was wholly ineffective because 
she did not receive the mandatory counseling also contemplated 
and ordered by AFI 36-2131.  There was certainly nothing 
disqualifying in and of itself as to the 10 percent disability 
rating that would have prevented the Air Force from retaining 
her on active duty and thereby allowing her to reach retirement 
eligibility.  Even more troubling is the continued reluctance on 
the part of the Air Force to acknowledge why she suffered from 
the major depressive disorder which was the basis of her 
discharge.  Not only was she a deeply troubled woman at the time 
of the PEB but her emotional and psychological troubles were 
entirely and solely due to the work environment in which the Air 
Force placed her and from which she was granted no relief for 
over five years.

In further support of the applicant’s request, counsel includes 
a chart which outlines the efforts undertaken by the applicant 
to obtain relief from the unremitting harassment by her 
supervisor which started in 1997.  This chart depicts the good 
faith and ultimately desperate attempts by her to gain respite 
from the brutal harassment in her work place.  It ends with an 
entry on 25 Apr 2001.  For almost five years she was granted no 
relief whatsoever, not even a lateral transfer to another duty 
assignment.  A Jun 2000 LOD investigation assessed all of her 
medical conditions as duty related, stating that her Adjustment 
Disorder with Mixed Anxiety and Depression was a direct result 
of "stressors in the duty environment."  The 10 percent military 
disability rating which was assessed at the time of her 
discharge was ultimately amended on 28 Apr 2003, to a 
100 percent disability rating by the DVA. 

Finally, the advisory opinion implies that the Air Force 
complied with its side of the bargain in granting the applicant 
severance pay. It did not. She was never paid the severance 
package which was intended to compensate her for electing not to 
apply for retirement at age 60.  This is why she is now 
requesting not only full retirement benefits commensurate with 
20 years of Active Service but also retroactive promotion to the 
grade of SMSgt.  She is also requesting compensation for out of 
pocket medical bills directly related to her LOD conditions.  
Counsel once again asks the Board to correct this injustice and 
grant her the relief requested in her original Petition.

Counsel’s complete response, with attachment, is at Exhibit E.

________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

AFRC/JA recommends denial.  JA states that over 12 years ago, 
the applicant developed mental and physical problems due to her 
work environment.  Her condition warranting medical care was 
found to be ILOD.  A PEB determined that her mental and physical 
condition made her unfit for duty and recommended she be 
discharged with severance pay.  At that time, she made it clear 
that she understood what was going on and that she wanted to be 
medically retired from the Air Force Reserve.  Prior to her 
assignment to the 302nd Air Wing (302 AW) the applicant had an 
exemplary military record.  She provided examples of her 
outstanding performance reports, medals, and awards.  However, 
this situation changed upon her assignment to the 302 AW.  She 
alleges that she began having physical and mental health issues 
based on sexual harassment and other retaliatory issues within 
the unit.  She provided medical evidence supporting the mental 
and physical issues from which she suffered.  A LOD 
investigation was conducted to determine if the mental and 
physical conditions were based on her military service.  The LOD 
found that her medical condition was based on her workplace 
issues.  Specifically, the LOD stated "the mental illness in 
this case would not have occurred but for the fact the member 
was present for duty.  "The illness was aggravated by unusual 
stressors in her reserve duty environment while on active duty 
and inactive duty training."  The PEB determined that she was 
unfit for duty because of a physical disability but stated N/A 
to whether the disability was incurred ILOD after 14 Sept 1978. 
The board recommended a 10 percent disability and discharge with 
severance pay.  She had over eighteen years of satisfactory 
service and had the option to elect transfer to the ISLRS for 
the purpose of applying for a Reserve retirement at age 60 under 
10 USC § 12731, Age and Service Requirements, in lieu of being 
discharged with severance pay.  She elected to transfer to the 
ISLRS on 31 Aug 2001.  Reserve Order EK-0006 issued on 2 Oct 
2001, assigned her to the Retired Reserve Section effective 
26 Sep 2001.  The evidence submitted by the applicant shows that 
at the time she decided to transfer to the Retired Reserve, she 
had the mental capacity to make that election and it was her 
desire to do so.  With regard to her contention that the Air 
Force failed to follow the guidance provided in AFI 36-3212, 
Physical Evaluation for Retention, Retirement, and Separation, 
by failing to transfer her to another unit as she had proven 
that she could perform her duties.  In actuality, the PEB found 
her to be unfit for duty because of a physical disability.  
During the PEB, she stated that she desired to be medically 
retired from the Air Force Reserve.

The applicant also contends she would have successfully 
completed her Air Force career and retired at 20 years had the 
Air Force removed her from a hostile work environment.  However, 
she referred her issues to her member of Congress, local EEO, 
AFRC/IG, and SAF/IG.  All appropriately investigated her 
complaints and all determined that the unit did not fail to 
follow any applicable Air Force rules, policies, or regulations.  
Although the stress of her work situation may have caused her 
mental and physical problems, the various investigations 
determined that the actions of the Air Force and her chain of 
command did not violate Air Force requirements.

The applicant further claims her mental condition, her failure 
to be counseled as required by AFI 36-2131 and her quality 
service are examples of how waiving the three year requirement 
would be in the best interests of justice.  She filed an appeal 
more than 11 years after she retired from the Air Force Reserve 
and the evidence she provided does not show that waiving the 
three year requirement would be in the best interests of 
justice.  She was not unjustly discharged from the Air Force.  A 
PEB found that she had a physical/mental problem that made her 
unfit for duty.  During this process, she made it clear that she 
wanted to be medically retired from the Air Force Reserve and 
when given the opportunity, she elected to do just that.  The 
EEO, AFRC/IG, and SAF/IG all determined that there were no 
actions on behalf of the unit that violated any Air Force 
policies or regulations.

The complete JA evaluation is at Exhibit F.

________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

She disputes the AFRC/JA advisory opinion, dated 13 Jun 2013.  
She has provided a tremendous amount of evidence that she needed 
help from leadership so that she could perform the job that she 
was being paid to perform.  The LOD clearly shows evidence of 
harassment and inquiries support proof of retaliation, yet the 
actions taken by management seem to only minimize the hostility 
and mental degradation she incurred.  The PEB provided only a 
10 percent disability rating, yet the DVA rated her disabilities 
at 100 percent.  It appears that not all medical information was 
forwarded from her unit to the PEB to make an accurate 
disability determination.  Additionally she was never afforded 
the opportunity to meet with the PEB in person, possibly another 
oversight by her organization.  Had the Air Force followed the 
guidelines in DoDD 1332.18, Separation or Retirement Disability, 
for assignment of disability ratings, a rating of 10 percent 
would not have been justified for “Major Depressive Disorder - 
Severe.”  Had this occurred the military would have had to 
provide her a disability retirement.  Moreover, no action was 
taken against the two men who harassed her.

In further support of her request, the applicant provides recent 
witness statements and various other documents associated with 
her appeal.

Her complete response, with attachments, is at Exhibit I.

________________________________________________________________

FINDINGS AND CONCLUSIONS OF THE BOARD:

1.  After careful consideration of the evidence of record, we 
find the application untimely.  The applicant did not file 
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.  The applicant has not 
shown a sufficient reason for the delay in filing on a matter 
now dating back over 12 years, which has greatly complicated the 
ability to determine the merits of her position.  We are also 
not persuaded the record raises issues of error or injustice 
which require resolution on the merits.  We note the numerous 
requests by the applicant, however, we believe these issues were 
appropriately addressed by HQ AFRC/JA and we agree with their 
rationale and recommendation.  Therefore, it is our opinion that 
she has not provided substantial evidence that supports she is 
the victim of error or injustice.  Thus, we cannot conclude it 
would be in the interest of justice to excuse the applicant’s 
failure to file in a timely manner.

2.   The applicant's case is adequately documented and it has 
not been shown that a personal appearance with or without 
counsel will materially add to our understanding of the issue(s) 
involved.  Therefore, the request for a hearing is not favorably 
considered.

________________________________________________________________

DECISION OF THE BOARD:

The application was not timely filed and it would not be in the 
interest of justice to waive the untimeliness.  It is the 
decision of the Board, therefore, to reject the application as 
untimely.

________________________________________________________________

The following members of the Board considered this application 
in Executive Session on 29 Oct 2013, under the provisions of AFI 
36-2603:

, Panel Chair
, Member
, Member

The following documentary evidence was considered in AFBCMR BC-
2013-00072:

   Exhibit A.  DD Form 149, dated 31 Dec 2012, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPFD, dated 7 Feb 2013, w/atchs.
   Exhibit D.  Letter, AFRC/A1K, dated 1 May 2013, w/atchs.
   Exhibit E.  Letter, SAF/MRBR, dated 3 May 2013.
   Exhibit F.  Letter, Counsel, 28 May 2013, w/atchs.
   Exhibit G.  Letter, AFRC/JA, dated 13 Jun 2013, w/atchs
   Exhibit H.  Letter, SAF/MRBR, dated 13 Jun 2013.
   Exhibit I.  Letter, Applicant, 1 Jul 2013, w/atchs.




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								Panel Chair