BOARD DATE:	  31 December 2013

		DOCKET NUMBER:  AR20130003660 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that her under honorable conditions (general) discharge be upgraded to an honorable discharge and that the narrative reason for her discharge be changed to medical or some other more favorable description.

2.  She states, in effect, that the misconduct that led to her discharge was based on an isolated incident.  She was placed on mood-altering medication and was not removed from the stressors that caused her to have a mental break down.  The Army and her chain of command failed to properly react to the seriousness of her mental illness and possible overdose [overmedication] of prescription drugs.  She contends that she has new evidence, not heard by the Army Discharge Review Board (ADRB), that will support the upgrade of her discharge.

3.  She submits:

* Recommendation for Rehabilitative Transfer
* Chronological Record of Medical Care
* Department of Veterans Affairs (VA) Appeal
* Zoloft and Seroquel fact sheets
* Tacoma Vet Center medical records
* Post-service Letters of Recommendation and Certificates
* Fort Lewis, WA Provost Marshal Memorandum, dated 7 May 2008, and allied documents
* three self-authored statements detailing the sequence of events
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, the applicant's discharge be upgraded to honorable.

2.  Counsel states that the facts and circumstances of this case reveal a complex set of circumstances which show that the applicant is entitled to an honorable discharge.

3.  Counsel and applicant provide:

* a 21-page legal brief
* RxList drug information related to Zoloft and Seroquel
* VA Rating Decision Letter, dated 16 October 2008
* an Office of the Surgeon General/Medical Command (OTSG/MEDCOM) Policy Guidance on the Assessment and Treatment of Post-Traumatic Stress Disorder (PTSD), dated 10 April 2012

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records show she enlisted in the Regular Army on 
3 May 2005.  She held military occupational specialty 31B (Military Police (MP)).  She served in Iraq on two separate occasions from 13 January to 18 April 2006 and from 15 May 2007 to 30 April 2008.

3.  Her records contain:

	a.  A DA Form 3881 (Rights Warning Procedure/Waiver Certificate), dated 
1 January 2008, which shows the applicant was informed of her rights prior to being questioned in reference to insubordinate conduct towards a senior noncommissioned officer (NCO) for disobeying an order, aggravated assault, and communicating a threat.

	b.  A memorandum issued by the 54th MP Company, Forward Operating Base (FOB) Rustimayha, Iraq, dated 2 January 2008, which directed that the applicant not have any kind of weapon system in her possession.

4.  On 18 January 2008, the applicant was notified that she was the subject of an Article 32 investigation involving the facts surrounding the charges preferred against her.

5.  The record is void of a written decision on her request for discharge; however, on 28 January 2008, she requested reconsideration for approval of her request for discharge in lieu of court-martial.  In her request she stated that she was a hard-working Soldier who appeared before three Soldier of the Month boards, was promoted to specialist, served as the commander's driver, and won second place for females in a 12K run.  She had a great marriage, she loved the Army, and she loved herself.  She was charged with four serious offenses and she knew that what she had done was wrong.  She offered the following stressors that contributed to her misconduct:

* being distraught after her request to join her new spouse's unit was denied
* being accused of sleeping with her commander after she became his driver
* fear of losing her spouse after he was injured in an improvised explosive device
* panic attacks and no menstrual cycle for five months
* she became suicidal while still performing her duties as the commander's driver
* after becoming a team leader she continued to have panic attacks, could not sleep, and became suicidal again which led to self-referral to the Combat Stress Clinic and prescriptions for Zoloft for her depression and Seroquel for her nightmares and to aid with sleep
* receiving a negative counseling from her new squad leader for throwing out her former roommate’s personal items
* receiving a negative counseling from the same squad leader on her poor performance as a team leader and a recommendation for demotion

6.  The applicant further contended that she had been unstable for the past three months and felt like she was going to lose control.  Her counselor had told her that she should just walk away when she got into any situation where she felt she might lose control.  After receiving the negative counseling statements from her squad leader, she returned to her room to call her husband.  She started to think of suicide and she took her weapon out of her shoulder holster.  Before she had a chance to do anything she heard her squad leader outside her door.  He began to enter her room while she was standing in the middle of the room.  At this time she was having a panic attack which caused her shortness of breath and dizziness.  As he entered the room she raised the weapon at him and told him to "Stay the hell away" from her.  She never pointed a loaded weapon at the NCO and never threatened to kill him; her intent was to harm herself.  After he left, she grabbed the rounds out of her shoulder holster and locked and loaded the weapon.  Sometime later, she allowed a fellow Soldier whom she felt to be concerned about her to enter her room as she held the weapon to her head.

7.  She concluded that she was sorry for her actions and knew better than to lose control.  She apologized to the NCO, his family, and her chain of command.  She realized that she had battled depression since she was thirteen years old.  These thoughts crept back into her life as a Soldier when the pressure was too much for her to handle, even with a good chain of command.  She understood the consequences of her actions and that she had lost a significant portion of her dreams and goals.  She planned to take anger management classes and counseling to help her deal with her issues.  In addition, she planned to enroll in college to pursue available career choices. 

8.  Her record contains a DD Form 2807-1(Report of Medical History), dated
13 March 2008, completed for the purpose of separation.  The applicant indicated her current medications included 100mg of Zoloft and 25mg of Seroquel.  Item 29 (Explanation of Yes Answers) of this form is not completely legible but it appears that the applicant indicates this medication was prescribed for her depression, sleeping problems, and panic attacks.  The medical examiner stated that the applicant was previously followed by the combat stress team at her home FOB and reportedly cleared.  The applicant was on a stable regimen of Zoloft and Seroquel.

9.  Her DD Form 2808 (Report of Medical Examination), dated 13 March 2008, initially deferred her psychiatric evaluation; however, an undated document  found that the applicant was potentially dangerous and determined her to be psychiatrically cleared for any administrative action deemed appropriate by the commander to include chapter separation or Uniform Code of Military Justice (UCMJ) action.

10.  A DD Form 2329 (Record of Trial by Summary Court-Martial) shows the applicant was tried by summary court-martial on 19 March 2008 in which she 


pled guilty and was found guilty of the following charges which occurred on 
31 December 2008:

* committing assault by pointing an unloaded weapon at Staff Sergeant NB
* dereliction in the performance of duty by failing to follow arming procedures
* willfully disobeying SSG NB by disobeying his order to stand by her door

11.  She was sentenced to reduction in grade to private (E-1), forfeiture of $1,232.00, corrective training in form of classes to all 54th MP Company Soldiers E-4 and below on proper conduct toward NCOs and officers, as well as Multinational Corps-Iraq policy regarding weapons arming status.  Her sentence was approved on 3 April 2008.

12.  On 29 March 2008, the applicant's unit commander notified her he was initiating action which could result in her separation from the Army with an under other than honorable conditions discharge  under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14-12c, for commission of a serious offense.  The reason for the proposed action was cited as pointing an unloaded weapon at her squad leader, dereliction of duty by failing to follow proper arming procedures by chambering a round in her weapon, and disobeying a lawful order.  She was advised of her rights and the impact of the discharge.  She acknowledged receipt of the notification.

13.  On 11 April 2008, so much of the applicant's summary court-martial sentence as provided for reduction to private and forfeiture of $893.00 was approved and directed to be executed.

14.  On 19 April 2008, the applicant's unconditional waiver of an administrative separation board was accepted.  The appropriate separation authority directed her separation under the provisions of Army Regulation 635-200, chapter 14-12c, with a characterization for service as under other than honorable conditions.

15.  On 16 May 2008, she was discharged accordingly.  Her DD Form 214 shows:

* her service was characterized as Under Other Than Honorable Conditions 
* she was discharged under the provisions of Army Regulation 635-200, paragraph 14-12(c), with a separation program designator (SPD) code of JKQ and an RE code of 3
* her narrative reason for separation was "Misconduct (Serious Offense)"

16.  On 23 July 2008, the ADRB upgraded her characterization of service to general, under honorable conditions.  The ADRB found that the characterization of service was too harsh based on the applicant's length of service to include her combat service and as a result it was inequitable.  However, the reason for discharge was fully supported by the record and, therefore, remained both proper and equitable.

17.  As a result, her original DD Form 214 was voided and she was issued a general under honorable conditions discharge certificate and a revised DD Form 214 which shows:

* her service was characterized as "Under Honorable Conditions (General)"
* she was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c
* her SPD code was "JKQ"
* her RE Code was "3"
* her narrative reason for separation was "Misconduct-Serious Offense"

18.  In a self-authored statement she recounts the events and stressors that led up to her misconduct.  In summary her stressors included:

* being separated from her spouse
* her inability to comfort her husband during the loss of his Soldiers
* she suffered from frequent nightmares, sleepiness
* fear of her husband dying
* rumors circulated that she was sleeping with certain individuals 
* she suffered a panic attack around 15 June 2007 (no medical evidence provided)
* in August 2007 she was purposely placed into an investigation regarding the first sergeant which she had no knowledge of but this caused her additional stress
* after arriving in Iraq she had her first experience with dead bodies and was tasked with protecting an Iraqi girl who had been raped, beaten, and had acid poured on her
* she was always lead truck in the convoy on each mission, which was stressful
* On 31 December 2007, she received two negative counseling statements from her squad leader
* during the counseling session the squad leader approached her and this brought back memories of her rape at the age of sixteen



19.  Her counsel admits that complete medical records were not available to him but based on the available evidence he contends that the applicant was not administered the proper dosage of medications, that the medical physicians failed to properly monitor the effects of said medications, and they failed to properly diagnose her with PTSD.  He further contends that the applicant was never made aware of the known risks associated with her medication which included suicidal ideations.  Her response on 31 December 2007 was in response to a verbal assault which provoked fears and memories of her previous sexual assault, and which given the potential suicidal effects of the heavy doses of Zoloft and Seroquel combined with her PTSD symptoms, resulted in arousing her suicidal tendencies and caused her to take out her weapon with the intent to commit suicide.  Her counsel argues the applicant had ineffectual counsel and that based on her medical history she should have been referred to medical channels.

20.  The applicant and her counsel provide:

	a.  Two unsigned and undated memoranda from an unverifiable source.  One memorandum recommends that the applicant's separation be disapproved and that she receive a rehabilitative transfer.  The other recommends her separation be approved and she be given either a general under honorable conditions discharge or an other than honorable conditions discharge.  The applicant contends this is evidence that her battalion commander considered transferring her rather than discharging her from the service.

	b.  Partial service medical records for the period 10 February 2007 to 
20 February 2008.  These records show that applicant was seen in the Combat Stress Clinic and initially reported that after she threatened to shoot her commander they took away her weapon.  She also reported having nightmares, not being able to sleep, and being in drug rehabilitation from the ages of 11 to 19.  At 16 years of age she tried to commit suicide.  The medical specialist indicated that the applicant denied harm to self and had poor stress coping skills.  The applicant was provided with ways to deal with her stress such as breathing techniques, exercise, and journaling and she was prescribed Zoloft and Seroquel.  Subsequent medical entries show the applicant showed continued progress and made no reports of having negative side effects or thoughts of suicide.  On 29 December 2007, two days prior to the incident, the medical specialist indicated that the applicant "appeared to be responding well to the Zoloft, and she had been applying proper coping mechanisms to help her deal with daily stressors."  Notes recorded after the incident show that the applicant indicated that she felt a need to protect herself when she pointed her weapon at her squad leader but she had no intention of causing him harm or harming herself.  Over the next month the applicant continued to go to counseling to deal with the stress related to her potential punishment.  Her medications are refilled in February after the applicant reported being out of medication.  None of the medical documents provided by the applicant indicate that she had suicidal ideations or intention.  In February 2007, she was diagnosed with depression and personality disorder.  She continued to be prescribed Zoloft and Seroquel.

	c.  A VA rating decision, dated 26 March 2012, awarding the applicant a 50-percent service connected disability rating for PTSD and depressive disorder.

	d.  A letter of recommendation to upgrade the applicant's discharge from the Readjustment Counseling Therapist, Sexual Trauma Counselor, Tacoma Vet Center, Tacoma, WA, dated 2 February 2010.  The counselor stated that given the applicant's previous trauma history, and abusive relationship with her squad leader, his actions were very threatening to her.  This plus the stress of being in a combat zone and her spouse also being deployed to Iraq with sporadic contact resulted in her being triggered into a protective stance.  Her progress is excellent with many of her symptoms in remission.

	e.  An OTSG policy memorandum dated 10 April 2012 describing policy guidance on the assessment and treatment of PTSD.  There is no retroactive provision included in this guidance.

	f.  Various performance counseling statements, letters of commendation, awards, bachelor's degree, training certificates and post service achievements.

	g.  Drug facts sheets that show the recommended dosages and side effects of Zoloft and Seroquel.

	h.  Extensive post service medical records which show she was treated for major depressive disorder at the American Lake Veterans Affairs Medical Center  and continued to be prescribed Zoloft and Seroquel as part of her treatment.  

21.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct, including the commission of a serious offense.  The regulation specifies that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  An honorable discharge or a general discharge may be awarded by the separation authority if warranted by the member's overall record of service; however, a discharge under other than honorable conditions is normally considered appropriate for members separated under these provisions.
	b.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

22.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army physical disability evaluation system (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  It provides for medical evaluation boards (MEBs) which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501.  Paragraph 3-1 provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.  To ensure all Soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in Army Regulation 40-501, chapter 3.  These standards include guidelines for applying them to fitness decisions in individual cases.  These guidelines are used to refer Soldiers to an MEB.

23.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of any VA rating does not establish an error or injustice by the Army.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two government agencies, operating under different policies, may arrive at a different disability rating based on the same impairment.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

24.  Army Regulation 635-5 (Separation Documents) establishes the policies and procedures for completion and distribution of the DD Form 214.  It states that item 28 will list the narrative reason for separation based on regulatory or other authority.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request to upgrade her discharge.

2.  The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of a serious offense with an under other than honorable conditions discharge on 16 May 2008 for pointing her weapon at her squad leader, dereliction of duty, and failure to follow proper arming procedures.  On 23 July 2008 the ADRB upgraded her discharge to general under honorable conditions.  

3.  The applicant and her counsel contend, in effect, that the applicant's misconduct was the direct result of the stressors related to her deployment, a history of sexual trauma, the side effects of being overprescribed the anti-depressant medication Zoloft and the sleep aid Seroquel, and her failure to be properly diagnosed and treated for PTSD.

4.  The fact that the applicant had a difficult time adapting to the stressors associated with her deployment is not in question.  The available medical records show that in November 2007 she sought treatment for depression, lack of sleep, and nightmares.  During this assessment she indicated that she had communicated a threat to her commander which caused her to be placed on a "no weapon" profile and removed from her duties as the commander's driver.

5.  The record further shows that over the next several follow up visits those stressors were managed with medication (Zoloft and Seroquel) and the employment of stress-reducing techniques.  There is no evidence to show that she complained of or that she suffered from any adverse effects from her medication which would lead to her misconduct.  In fact, all available medical records show that at no time after receiving her medication did she ever report having suicidal intent or ideations.  However, she did report being better able to manage her stressors.  Lacking evidence to the contrary, there is insufficient evidence to show that she was experiencing negative side effects to her medication which led to her misconduct.

6.  By regulation, a Soldier must be found unfit to reasonably perform the duties of his or her office, grade, rank, or rating because of physical disability in order to be considered for processing for a medical discharge through the Army PDES.  The evidence of record provides no indication the applicant suffered from a physically or mentally disqualifying condition that would have supported her separation processing through the Army PDES at the time of her separation.

7.  The applicant currently has a VA disability rating of 50-percent for PTSD and depressive disorder.  However, these diagnoses do not mean she was determined to be so unfit as to require processing through medical channels, and the examining medical officer at the time indicated just that by clearing her for separation action under the provisions of chapter 14, Army Regulation 635-200.

8.  Therefore, there is no justification or reason to change her character of service, the separation authority, or the narrative reason for separation as her separation was based on misconduct – commission of a serious offense.  Additionally, she has established no basis for the issuance of a new separation document.

9.  The applicant was properly and equitably discharged in accordance with the applicable regulation, all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X___  ___X_____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _  X _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20130003660





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ABCMR Record of Proceedings (cont)                                         AR20130003660



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