RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 			DOCKET NUMBER: BC-2014-01972

						COUNSEL:  NONE

						HEARING DESIRED:  NO 



APPLICANT REQUESTS THAT:

His disability/medical discharge be changed to medical retirement. 


APPLICANT CONTENDS THAT:

Had his mental health disability been included and considered during his physical evaluation board (PEB), he would have received a medical retirement.  

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


STATEMENT OF FACTS:

The applicant initially entered the Regular Air Force on 20 Aug 98. 

On 11 Feb 01, the applicant was injured while riding his motorcycle, sustaining a broken ankle, tibia and fibula, in addition to a broken right wrist, two toes on his right foot, and right small finger.  

On 26 Jan 03, a medical evaluation board (MEB) reviewed the applicant’s medical case and recommended it be referred to the physical evaluation board (PEB).  

On 27 Feb 03, the informal PEB (IPEB) found the applicant unfit and recommended he be discharged with severance pay with a ten percent compensable disability rating in accordance with Department of Defense (DoD) and Veterans Affairs Schedule for Rating Disabilities (VASRD) guidelines.  On the same day, the applicant disagreed with the IPEB’s findings and recommended disposition and demanded a formal hearing of the case.

On 29 Apr 03, the formal PEB (FPEB) found the applicant unfit and recommended discharge with severance pay at a compensable rating of ten percent.  

On 27 Jun 03, the applicant was honorably discharged for physical disability with severance pay, and was credited with four years, ten months, and eighteen days of active service. 

On 13 May 13, the physical disability board of review (PDBR), after reviewing the applicant’s application and treatment records in the matter of the left ankle post traumatic arthritis condition, recommended the applicant’s military records be corrected to show that the diagnosis in his finding of unfitness for left ankle post traumatic arthritis, VASRD Code 5270, was rated at twenty percent rather than ten percent.  

The remaining relevant facts pertaining to this application are contained in the memoranda prepared by the Air Force offices of primary responsibility (OPR), which are attached at Exhibits C, D, and F.    


AIR FORCE EVALUATION:

AFPC/DPFD recommends denial indicating there is no evidence of an error or an injustice regarding the applicant’s disability/ medical discharge.  Evidence presented by the applicant indicates that on 6 Jun 13, the Department of Veteran’s Affairs (DAV) advised him of a proposed disability rating of fifty percent for mood disorder due to medical complications with an effective date of 22 Apr 11.  As background, the Department of Defense and the DVA disability evaluation systems operate under separate laws.  Under Title 10, USC, PEBs must determine if a member’s condition renders them unfit for continued military service relating to their office, grade, rank or rating.  The fact that a person may have a medical condition does not mean that the condition is necessarily unfitting for continued military service.  If the PEB renders a finding of unfit, the law provides appropriate compensation to the premature termination of their career.  Further, it must be noted that the USAF disability boards must rate disabilities based on the member’s condition at the time of evaluation.  It is the charge of the DVA to pick up where the Air Force must, by law, leave off.  Under Title 38, the DVA may rate any service-connected condition based upon future employability or reevaluate based on changes in the severity of a condition.  This often results in different ratings by the two agencies.  The preponderance of evidence reflects that no error or injustice occurred during the disability process.  

A complete copy of the AFPC/DPFD evaluation is at Exhibit C.

AFBCMR Medical Consultant recommends denial indicating there is no evidence of an error or injustice regarding the applicant’s disability/medical discharge.  He sustained an open fracture of his left ankle as a result of a motorcycle accident in Feb 01.  Subsequently, a medical evaluation board (MEB), IPEB, and FPEB, reviewed his case and he was ultimately found unfit for duty due to post-traumatic arthritis of the left ankle and discharged with entitlement to disability severance pay with a ten percent disability rating.  Thereafter, the applicant appealed to the PDBR, which noted his restricted range of motion and determined his condition was best rated at twenty percent.  This action, however, did not change the final disposition of his case (separation with severance pay), as the twenty percent disability rating still fell short of the thirty percent required to trigger entitlement to medical retirement eligibility.  

In the case under review, the evidence indicates that it was only the applicant’s left ankle injury that prevented him from reasonably performing his military duties.  Although the DVA has assigned service connection and disability compensation for a mood disorder, service evidence does not reflect a mental disorder interfered with the applicant’s ability to perform military service to the extent or duration that rendered him non-worldwide qualified or warranted a separate basis for its inclusion in the MEB/PEB processing.  The Global Assessment of Functioning (GAF) last assigned to the applicant at his closure assessment of March 2003 placed him at a level of superior mental functioning and with no symptoms.  The applicant has not met the burden of proof of error or injustice that warrants the desired change of the record.

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


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Copies of the Air Force evaluations were forwarded to the applicant on 27 Jan 15, 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:

AFBCMR Clinical Psychology Consultant recommends denial indicating there is no evidence of an error or an injustice.  Title 10 U.S.C., directs that the Military Department must base its actions upon evidence at the “snap shot” in time of final military disposition.  Additionally, in accordance with DoDI 1332.38, Physical Disability Evaluation (in effect at the time of the applicant’s discharge), in order for a mental health condition to be considered unfitting for continued military service a member must have suffered from a mental disorder that was eligible at that time for referral and received optimal medical treatment benefits, or the member must have been expected to be unable to return to full military duty within one year of diagnosis of the condition.  In review of the applicant’s available case file it was determined that at the time of his discharge his treatment in the Life Skills clinic for depressive symptoms was noted to have progressed well with no indication that he suffered from a mental disorder.  The recent DVA post-service determination that the applicant’s mood disorder tied to his medical issues was service connected and rated as a disability was based on a different set of laws (Title 38, U.S.C.), allowing the DVA 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.  Therefore, post-service DVA ratings do not equate to a Military Department decision that a mental health condition rendered a service member unfit for continued military service at the time of discharge.  The applicant has not met the burden of proof for an error or injustice in this case.  

A complete copy of the AFBCMR Clinical Psychology Consultant evaluation is at Exhibit F. 


APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The applicant argues that his military and DVA medical records show that he suffered from mental health issues at the time of his enlistment, but they were quietly swept to the side, he did not receive proper care, and as a result, has suffered unnecessary setbacks in his treatment.  He lists locations and timeframes he received treatment for his mental health issues.    He stated he was not certain why his lawyer did not bring up his mental health issues with the MEB, or have the issues added to his case file.  He closed by saying he was confident his files will show he has suffered from mental health issues since his injuries in 2001 (Exhibit H). 


THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  We took notice of the applicant’s complete submission in judging the merits of the case, to include the applicant’s response to the Additional Air Force Evaluation; however, we agree with the opinion and recommendation of the Air Force offices of primary responsibility (OPR) and adopt their rationale as the basis for our conclusion the applicant has not been the victim of an error of injustice.  Regarding the applicant’s accusation that his mental health issues were quietly swept to the side, and he did not receive proper care; the Board notes that the applicant’s medical records confirmed he did receive Life Skill clinic treatment for depressive symptoms in 2002, and that his treatment was noted to have progressed well with no indication that he suffered from a mental disorder at the time of his discharge.  Therefore, in the absence of evidence to the contrary, we find no basis to recommend granting the requested relief.


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-2014-01972 in Executive Sessions on 12 Aug 15 and 31 Aug 15 under the provisions of AFI 36-2603:

	

The following documentary evidence pertaining AFBCMR Docket Number BC-2014-01972 was considered:

	Exhibit A.  DD Form 149, dated 7 May 14, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPFD dated 2 Jun 14.
	Exhibit D.  Memorandum, BCMR Medical Consultant, dated
		       30 Dec 14. 
	Exhibit E.  Letter, SAF/MRBR, dated 27 Jan 15.
	Exhibit F.  Memorandum, AFBCMR Clinical Psychology 
                 Consultant, dated 24 Jun 15. 
	Exhibit G.  Letter, SAF/MRBR, 6 Jul 15.
	Exhibit H.  Letter, Applicant, 30 Jul 15.