RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF: 				DOCKET NUMBER: BC-2014-03909

 						COUNSEL:  NONE

						HEARING DESIRED:  NOT INDICATED 



APPLICANT REQUESTS THAT:

His general (under honorable conditions) discharge be upgraded 
to honorable.

His narrative reason for separation of “Misconduct” be changed 
to “Medical.”


APPLICANT CONTENDS THAT:

He was injured in the service.  The Department of Veterans 
Affairs (DVA) has rated him at 60 percent for compensable 
service connected disability.

The Board should find it in the interest of justice to consider 
his untimely application as he was never given the opportunity 
to file a DVA claim.  

In a letter dated 7 Nov 14, his DVA provider states the 
applicant advised that his disciplinary issues while in military 
service were secondary to his now service connected physical 
conditions and related stressors.  

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


STATEMENT OF FACTS:

On 16 Jan 01, the applicant entered the Regular Air Force.

On 10 Dec 01, he received a general (under honorable conditions)  
(general), discharge with a narrative reason for separation of 
“Misconduct” and RE code of “2B” which denotes “Discharged under 
general or other than honorable conditions.”  

According to the DVA rating decision dated 10 Jun 14, the 
applicant was rated at 60 percent for a service connected 
disability for conditions of degenerative joint disease, 
degenerative arthritis and herniated disc and lumbar spine.  The 
applicant was denied service connected disability for Post- 
Traumatic Stress Disorder (PTSD) as the DVA determined the 
condition was not related to his military service.  

According to a U.S. Department of Justice, Federal Bureau of 
Investigation (FBI) letter dated 4 Apr 15 (Exhibit E), the 
applicant has no prior arrest data on file at the FBI.  


AIR FORCE EVALUATION:

AFPC/DPSOR recommends denial of the applicant’s requests.  The 
applicant has not filed a timely application.  It has been 
13 years since his discharge and he did not provide a reasonable 
explanation as to why he failed to submit a petition within 
3 years of discharge.  Based on a review of the master personnel 
records, the discharge, to include the separation code, 
narrative reason for separation and character of service, was 
consistent with the procedural and substantive requirements of 
the discharge instruction and was within the discretion of the 
discharge authority.  DPSOR did not find any evidence of any 
errors or injustice in the discharge processing. 

On 3 Dec 01, the applicant was notified by his commander that he 
was recommending he be discharged for misconduct, specifically, 
minor disciplinary infractions.  The commander indicated that he 
would be recommending a general (under honorable conditions) 
discharge based on the following:

      On or about 29 Jun 01, the applicant was physically in 
control of a vehicle while impaired by alcohol for which he 
received an Article 15, Uniform Code of Military Justice (UCMJ).  

	Between and on or about 5 Oct 01 and 7 Oct 01, he was 
derelict in the performance of his duties by camping overnight 
at Lake Texacoma for which he received a Letter of Reprimand 
(LOR).  

	On or about 12 Oct 01, he was derelict in the performance 
of his duties when he was observed talking while at the position 
of attention for which he received a Letter of Counseling (LOC). 

	On or about 13 Oct 01, he failed to go to his appointed 
place of duty for which he received a LOR.

	On or about 13 Oct 01, he was derelict in the performance 
of his duties by failing to return to and remain in his assigned 
dormitory from 2200-0400 for which he received a LOR.

The base legal office reviewed the case and found it legally 
sufficient to support separation and the base separations 
authority approved the discharge and directed he be separated 
with a general (under honorable conditions) discharge.

The record shows the applicant was afforded every opportunity to 
excel and overcome his deficiencies.  His commander concluded 
that careful consideration was taken on whether or not the 
applicant should be retained in the military.  It was determined 
that due to his low regard for the rules, regulations and 
integrity, separation was the correct course of action.  DPSOR 
concurs with the assessment.  Therefore, the separation code and 
the narrative reason for separation are correct as indicated on 
his DD Form 214.    

A complete copy of the DPSOR evaluation is at Exhibit C.

The BCMR Medical Consultant recommends denial of the applicant’s 
petition to supplant his administrative discharge with a medical 
separation or retirement.  The applicant has not met the burden 
of proof to warrant the desired change of the record.  

The military Disability Evaluation System (DES), established to 
maintain a fit and vital fighting force, can by law, under 
10 U.S.C. only offer 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 “snapshot” time of separation and not based on post-
service progression of disease or injury.  DODI 1332.32, 
Physical Disability or Medical Disqualification, paragraph 
E3.P3.2.1, in effect at the time of the applicant’s service 
reads: “A service member shall be considered unfit when the 
evidence establishes the member, due to physical disability is 
unable to reasonably perform the duties of his or her office, 
grade, rank or rating.”  

The Medical Consultant concedes a more thorough evaluation of 
his right knee should have been documented at the time of 
separation than appears on his separation physical.  However, 
the Medical Consultant cannot speculate on his physical fitness 
at the time.  Reflecting on his acute minor illnesses and 
injuries, none of these were documented to have impaired his 
ability to reasonably perform his military duties to the extent 
or duration that warranted rendering him non-worldwide qualified 
justifying referral for a Medical Evaluation Board (MEB) and 
Physical Evaluation Board (PEB) processing.  Moreover, even if 
the applicant had undergone an MEB and was offered a medical 
separation or retirement, under AFI 36-3212, Physical Evaluation 
for Retention, Retirement and Separation, his case would have 
required a “dual-action” review by the Secretary of the Air 
Force Personnel Counsel (SAFPC) to determine which basis for 
discharge was appropriate.  In conducting such a review, the 
SAFPC searches for any causal or mitigating relationship between 
the acts of misconduct and the medical condition.  If there is 
no such causation, as in the case under review, the applicant 
would have been vulnerable for execution of the approved 
administrative discharge.  

Operating under a different set of laws, 38 U.S.C., 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 retainability, fitness 
to serve, narrative reason for separation, or the intervening 
period since the date of separation.  With this in mind, 
38 U.S.C., which governs the DVA compensation system was written 
to allow awarding compensation ratings for conditions that were 
not individually unfitting during military service or at the 
time of separation.  

A complete copy of the BCMR Medical Consultant’s evaluation is 
at Exhibit D.   


APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He was forced to lose weight before graduating Basic Military 
Training (BMT).  He noticed a slight change in his health while 
in BMT, he was getting sick more often during training due to 
his allergic reactions from the vaccinations.  

After entering technical training to be a crew chief, he had no 
issues retaining information.  However, the wording on the tests 
were different than the re-test.  He would fail the test and 
pass the re-test.  He asked for medical treatment and was told 
to refuse treatment or be forced to go home.  He was then placed 
into another job refueling and defueling aircraft.  He was 
pulled out of training five days from graduation.  In Nov 01 he 
was seen by a physical therapist for his injuries.  After a 
month of physical therapy, he was discharged in Dec 01.

He was seen by doctors for a year when an MRI was ordered.  The 
information from the MRI was submitted and a year later he was 
granted a DVA rating of 20 percent.  Fourteen years later, he is 
now 60 percent disabled and is waiting for a rating of 
100 percent disability.  He had no DVA support or knowledge that 
he could try for a medical separation as a way of discharge 
upgrade.  The military had knowledge of his injury and chose to 
ignore the evidence submitted which led to his condition to 
develop over the years.  

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


FINDINGS AND CONCLUSIONS OF THE BOARD:

1.  After careful consideration of applicant’s request and the 
available 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 plausible reason for the 
delay in filing, and we are not persuaded that the record raises 
issues of error or injustice which require resolution on the 
merits.  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 issues involved.  
Therefore, the request for a hearing is not favorably 
considered. 


THE BOARD DETERMINES THAT:

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 AFBCMR Docket 
Number BC-2014-03909 in Executive Session on 13 and 17 May 15 
under the provisions of AFI 36-2603:

	 , Panel Chair
	 , Member
	 , Member

The following documentary evidence was considered:

	Exhibit A.  DD Form 149, dated 19 Sep 14, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DPSOR, dated 2 Dec 14.
	Exhibit D.  Memorandum, BCMR Medical Consultant, dated    
16 Mar 15.
	Exhibit E.  Letter, U.S. Department of Justice, dated 
4 Apr 15.  
	Exhibit F.  Letter, SAF/MRBR, dated 7 Apr 15.
	Exhibit G.  Letter, Applicant, undated, w/atchs.