RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2013-00429

XXXXXXX	COUNSEL:  NONE
		HEARING DESIRED:  YES

________________________________________________________________

APPLICANT REQUESTS THAT:

His general (under honorable conditions) discharge from the Air 
National Guard be changed to a medical retirement.

________________________________________________________________

APPLICANT CONTENDS THAT:

He should have been medically retired from the New York Air 
National Guard (NY ANG) instead of being administratively 
discharged.  

His unit ignored his medical conditions even after being given 
medical documentation and treatment records.  His conditions 
originated from service during Operations IRAQI FREEDOM 1 and 2.

He was given a general discharge to punish him morally and 
financially.  

In support of his appeal, the applicant provides copies of 
Department of Veterans Affairs (DVA) decisional documents and 
various other documents.

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

________________________________________________________________

STATEMENT OF FACTS:

On 18 Jul 07, the applicant enlisted in the NY ANG, in the grade 
of staff sergeant, as a prior-service enlistee.  

On 19 May 08, the applicant filed a claim with the Department of 
Veterans Affairs (DVA) for service-connected disability 
compensation under Title 38.  On 27 Oct 08, the DVA awarded him 
50 percent for major depressive disorder, anxiety, insomnia, and 
depression.  In addition, the applicant was awarded 10 percent 
for tinnitus.  On 26 Jan 09, the applicant was rated 10 percent 
for Traumatic Brain Injury (TBI).  The DVA awarded the applicant 
a total combined compensable disability rating of 60 percent.

The unit commander recommended he be separated from the ANG for 
unsatisfactory participation.  According to a letter from the 
staff Judge Advocate, dated 31 May 12, the applicant was absent 
from twenty-nine (29) periods in a twelve month timeframe.  
Further, after the Letter of Notification (LON) was served, the 
applicant continued to remain Absent without Leave (AWOL) and 
acquired an additional fourteen (14) periods of absence.  The 
applicant provided no documentation to explain his continued 
absence.  Although he communicated with his detailed military 
counsel that he wished to submit matters in extenuation and 
mitigation, he did not make contact with his military counsel 
for several months despite efforts to contact him.

On 15 Aug 12, the applicant was discharged for unsatisfactory 
participation, with service characterized as general, under 
honorable conditions.  He was credited with 5 years, 8 months, 
and 28 days of service during this period. 

________________________________________________________________

THE AIR FORCE EVALUATION:

NGB/SGPF recommends denial, noting the applicant has failed to 
provide any documentation that he is eligible for a medical 
retirement.  Furthermore, there is substantial evidence to 
suggest the applicant failed to disclose his prior history of 
potentially disqualifying medical conditions that would support 
discharge action in accordance with ANGI 36-2002, Enlistment and 
Reenlistment in the Air National Guard and as a Reserve of the 
Air Force.  

SGPF notes that there is no record of the applicant disclosing his 
prior medical history to the NY ANG, or to HQ ANG/SG for waiver 
consideration and entrance into the ANG.  

The only Line of Duty Determination (LOD) included in the AFBCMR 
package is from Sep 04 while the applicant was serving with the 
United States Army.  A review of the DVA Rating decisional 
documents dated 26 Jan 09, determined service connection, Gulf 
War, while serving with the US Army from 1998-2006.  The 
applicant agreed to the following remarks contained in his 
original Enlistment/Reenlistment document, dated 18 Jul 07:

“I FULLY UNDERSTAND THAT MY ENLISTMENT INTO THE AIR NATIONAL 
GUARD IS CONTINGENT UPON FINAL APPROVAL OF MY PHYSICAL 
EXAMINATION.  ANY MEDICAL FINDINGS OF AN EXISTING PRIOR TO 
SERVICE (EPTS) CONDITION OR ANY OTHER DISQUALIFYING MEDICAL 
CONDITION UNLESS WAIVED PURSUANT TO PARAGRAPH 1.3. OF ANGI 36-
2002, RENDERS THIS ENLISTMENT CONTRACT NULL AND VOID AND WILL 
RESULT IN MY INELIGIBILITY TO COMPLETE ENLISTMENT INTO THE ANG.” 

On 31 May 12, the SJA recommended the applicant be discharged, 
with service characterized as general, (under honorable 
conditions).  The basis for the discharge action was AFI 36-
3209, paragraph 3.13.2, Unsatisfactory Participation.

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

________________________________________________________________

APPLICANT'S REVIEW OF THE AIR FORCE EVALUATION:

He finds the evaluation inflammatory and disheartening.  He 
disclosed all of his medical data, not once, but twice through 
his chain of command.  He has provided all of the documentation 
that he received from the DVA.  He questions how his condition 
could be a pre-existing condition when he had no knowledge of 
his conditions when he joined the ANG.

The applicant’s complete response is at Exhibit E. 

________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has not 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 warranting a 
change of the applicant’s general discharge to a medical 
retirement.  Although the applicant claims he presented medical 
documentation and treatment records to his unit, we note that 
other than his medical records documenting issues that predate 
his Air Force service, he has not provided sufficient evidence 
of unfitting medical conditions that served as the basis for 
cutting short his Air Force career.  Further, we also note that 
he failed to present matters in his behalf in response to the 
commander’s administrative discharge action.  Therefore, we 
agree with the opinion and recommendation of the OPR and adopt 
the rationale expressed as the primary basis for our decision 
that the applicant has failed to sustain his burden of having 
suffered either an error or injustice.  Additionally, even if we 
accept that the applicant disclosed all his medical information 
to his chain of command prior to his enlistment in the ANG, we 
would point out that since the applicant’s conditions rated by 
the DVA were during periods of service with the US Army, they 
would be considered preexisting conditions and can only be rated 
to the extent they were service-aggravated by his service in the 
ANG.  The applicant has not provided sufficient evidence in 
support of this assertion.  If the applicant believes the 
conditions rated by the DVA should serve as the basis for a 
medical retirement, it would appear this is an issue that should 
be appealed to the Army Board for Correction of Military Records 
(ABCMR) or the Physical Disability Board of Review (PDBR). In 
view of the above, we find no basis to favorably consider the 
applicant’s request.

4.  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.
________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified the evidence presented did not 
demonstrate the existence of material error or injustice; the 
application was denied without a personal appearance; and the 
application will only be reconsidered upon the submission of 
newly discovered relevant evidence not considered with this 
application.

________________________________________________________________

The following members of the Board considered AFBCMR Docket 
Number BC-2013-00429 in Executive Session on 15 Oct 13, under 
the provisions of AFI 36-2603:

The following documentary evidence was considered:

    Exhibit A.  DD Form 149, dated 21 Jan 13, w/atchs. 
    Exhibit B.  Applicant's Available Master Personnel Records.
    Exhibit C.  Letter, NGB/SGPF, dated 1 Mar 13.
    Exhibit D.  Letter, SAF/MRBR, dated 15 Mar 13.
    Exhibit E.  Letter, Applicant, undated.




                                   Panel Chair
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