BOARD DATE: 27 August 2014
DOCKET NUMBER: AR20130019277
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 reconsideration of his request to correct his records by upgrading his discharge and changing the reason for discharge be to medical retirement.
2. The applicant states
* he was not a malingerer
* his command had a culture of stigmatization around mental health issues and a pattern of intimidating Soldiers into not seeking medical treatment especially for mental health issues
* he preformed over 50 combat missions for which he was awarded the Cavalry Combat Spurs
* after returning from a year-long tour in Iraq his health deteriorated
* thinking of returning to combat made him more anxious and depressed with thoughts of suicide and he started cutting himself
* on 15 August 2007 he was close to committing suicide but his roommate talked him into going to mental health
* he rotated through a number of psychiatrists and psychologists including occasionally Dr. C---------
* Dr. C--------- never asked him any questions about his tour in Iraq or any other potential trauma
* on 10 September 2007 he cut his own wrists in an attempt to end his life
* despite being diagnosed and recommended for discharge due to depression his command processed him for separation for malingering
* following discharge his condition continued and following a suicide attempt at home he was admitted to the VA hospital
* the VA diagnosed and treated him for depression and post-traumatice stress disorder (PTSD)
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:
1. Counsel requests:
* the applicant's general discharge (GD) be upgraded to an honorable discharge (HD)
* his reason for discharge be changed to medical disability, rather than misconduct
* he be given medical disability retirement under Title 10, U.S. Code (USC), §1201 for his service-connected PTSD and depression
* or in the alternative, award him active duty pay from the date of his discharge, 14 February 2008, to the date of his term of active duty would have expired, 18 March 2009
2. Counsel states:
a. The Army relied on a single medical provider's refuted and unsubstantiated malingering diagnosis to mischaracterize the applicant's attempted suicide as misconduct. This resulted in an improper and illegal separation for misconduct. The applicant was not a malingerer. The record overwhelmingly indicates that the Army's stated basis for separation was based on a single doctor's opinion that he had been malingering, a statement that was unfounded and wrong.
b. Every psychiatric provider who saw the applicant diagnosed him with a depressive disorder which is known to coincide with suicidal behavior. The only malingering diagnosis was given by Dr. C---------. The assessments made by the other doctors were that the applicant's diagnosed psychiatric conditions caused him to self-injure and rendered him medically unfit for duty.
c. Dr. C--------- diagnosed the applicant with depression, as well as suicide attempts, suicidal ideation, and a history of self-injury, and did not call his self-injury suspicious or misconduct on the multiple occasions he treated the applicant. He did not ask the applicant any questions related to his service in Iraq and in fact he continued to treat him with a doubling of his dose of anti-
depressants for months after bizarrely informing his command that the applicant suffered no treatable psychiatric condition. This confirms that his genuine assessment was that the applicant was suicidal and impaired for duty for medical reasons.
d. Also, Dr. C--------- wrestled with shifting diagnoses and then excluded malingering from his "final diagnosis." His last word on the matter was that the applicant was not a malingerer. His finding of malingering was not supported by any other psychiatric provider and even Dr. C--------- retracted this diagnosis in his "final diagnosis."
e. Even if Dr. C--------- had not retracted his malingering diagnosis, his assessments were entirely unsupported and full of self-contradictions. His lack of documentation is highly unusual and illegal. Army regulations require mental health providers to "document (patients') mental and emotional disorders" and the Patient Bill of Rights and Responsibilities in the Military Health System, Department of Defense Instruction (DODI) 6000.14, explicitly guarantees patients' "right to an explanation concerning their diagnosis." Surely these rights are most essential where the diagnosis is accusatory and the sole basis for a patient's punishment, discharge, and service characterization.
f. Army regulations also state that "the law presumes that a mentally sound person will not commit suicide (or make a bona fide attempt to commit suicide). This presumption prevails until overcome by substantial evidence and a great weight of the evidence that supports any different conclusion." There is no evidence on record that the applicant attempted suicide in order to fraudulently avoid military duty, an essential element of the Uniform Code of Military Justice (UCMJ). Dr. C--------- found the applicant mentally sound and fit for duty one day after his suicide attempt; he failed to provide any evidence to overcome the legal presumption that the applicant was not mentally sound when he attempted to take his life. In truth, he did not competently investigate his patient's mental state at all; he never once asked this depressed, anxious, self-injuring, and suicidal combat veteran about his traumas at war or his stressors at home. This, despite Army regulations stating that, in determining the mental soundness of a suicidal Soldier, "the question of sanity can only be resolved by inquiring into and obtaining evidence of the soldier's social background, actions and moods immediately prior to the suicide or suicide attempt, [and] troubles that might have motivated the incident." As a matter of law, a genuine suicide attempt is not malingering; it is a symptom of mental disease, not a crime of fraud.
g. Army Medical Command (MEDCOM) regulations warn that "caution is required in attributing PTSD-like symptoms to diagnoses that can result in harmful clinical, occupational, or administrative consequences for the service member, particularly malingering, personality disorder, or adjustment disorder." But without caution, evidence, or explanation, Dr. C--------- diagnosed the applicant, intermittently, with all three of these. One wonders how the applicant's life and career might have gone differently had he received therapy and treatment from this psychiatrist instead of an unsupported misdiagnosis.
h. Under Army policy changes made in 2011 and 2012 and under current Army regulations, Dr. C---------'s malingering diagnosis would be facially invalid because it was not endorsed by another psychiatrist's signature and was not supported by "conclusive evidence" that the applicant injured himself to avoid military duty. Recognizing that military psychiatrists were commonly misdiagnosing Soldiers' PTSD injuries as malingering, MEDCOM has adopted regulations to limit and discourage that diagnosis where patients' symptoms "may be associated with prior trauma or PTSD." A valid malingering diagnosis now requires the signatures of two credentialed care providers and substantial and definitive evidence from collateral or objective sources of a Soldier's false or grossly exaggerated symptoms that are consciously produced for external incentives. The evidence for proving actual intent to malinger must be conclusive. The Army also recognizes that many servicemembers refrain from getting needed treatment until symptoms become overwhelming, or they face additional significant stressors.
i. Under these standards, the only malingering diagnosis on record is invalid on its face. The Anny has recognized that its psychiatric providers routinely disserved PTSD-wounded warriors by misdiagnosing their symptoms as malingering and the applicant was a classic victim of this pattern of misdiagnosis. He returned from a traumatic year in combat with diagnosed depression, anxiety, and suicidal ideation, symptoms recognized as severe and impairing by the overwhelming weight of medical authority. As discussed below, VA psychiatrists stated explicitly that the applicant's symptoms of depression and suicidal
behavior on active duty were linked to PTSD. The applicant falls squarely into the class of patients the Army aimed to protect from misdiagnosis and related injustices and deserves redress.
j. The VA psychiatrists' PTSD diagnosis confirmed that the applicant's attempted suicide was caused by mental injuries instead of malingering.
(1) Dr. D---- wrote that PTSD "likely drove" the applicant's observed "symptoms of depression associated with . . . two suicide attempts since his return from Iraq" where he suffered "extensive exposure to psychosocial stressors in combat."
(2) Dr. M------- also diagnosed "chronic PTSD," confirming that these symptoms were of long duration. These providers treated him with cognitive therapy and medication for PTSD to alleviate his desire to self-harm "related to ineffective coping skills," feelings of "helplessness and worthlessness,"and "chronic depression," not malingering.
k. The Army Board for Correction of Military Records (ABCMR) cannot seriously conclude that after battling documented depression, tension, anxiety, guilt, hypervigilance, emotional numbing, paranoia, and memory loss, this suicidal combat veteran suddenly developed combat-related PTSD after his discharge for attempted suicide. The applicant returned from war with a psychiatric diagnosis comprising of PTSD in everything but name. With the benefit of time and an evolved understanding, VA professionals connected the dots and gave the constellation of those symptoms its proper name: PTSD.
l. These VA professionals' diagnoses are especially important evidence because PTSD is so commonly misdiagnosed, as the Army Medical Command has acknowledged. "Diagnosis of PTSD may frequently stay hidden if clinicians do not specially investigate it." Although those suffering these symptoms "may not be able to accurately identify their problems as emotional in nature, or marshal the right resources to help them, they manifest an awareness that something is wrong and may seek out primary care." As a result, "over-reporting of symptoms is typical of many actual or legitimate PTSD cases," which risks misdiagnosis of malingering without the advantage of time and emotional support. Because Dr. C--------- never once asked the applicant about his combat experiences, he did not have the necessary information to arrive at an accurate diagnosis.
m. That failure to investigate PTSD was not a trivial oversight. Dr. C--------- overlooked a major psychiatric explanation for the applicant's condition and behaviors. PTSD is strongly linked to suicidal behavior and it is a major predictor of who transitions from suicidal ideation to attempting suicide. Researchers have found that veterans of Iraq and Afghanistan who screened positively for PTSD were more than four times as likely to experience suicidal ideation as veterans who did not; even those reporting sub-threshold PTSD (i.e., displaying some symptoms of PTSD without meeting all the criteria for the diagnosis) were three times more likely to experience suicidal ideation than veterans without PTSD. The applicant returned from war sick and injured and a clear suicide risk. The record shows that he injured himself because he had PTSD.
n. Even if doctors legitimately diagnosed the applicant with medical malingering, the Army could not lawfully discharge him for commission of the differently-defined military offense of malingering because his command failed to prove or even allege that he injured himself for the purpose of avoiding military duty. Dr. C---------'s medical malingering diagnosis did not allege that the applicant committed the military "malingering" offense.
o. The applicant's command and separation authority justified his separation by citing only, and inaccurately, the assessment made by the doctors that he had been malingering by attempting to injure or kill himself. When physicians and military authorities speak about "malingering," they are not speaking about the same thing. Under Article 115, UCMJ, malingering is defined as the conduct of one who feigns or exaggerates an illness or injury for the purpose of avoiding work, duty, or service.
p. The UCMJ explains that feigning illness, physical disablement, mental lapse or derangement; or intentionally inflicting self-injury for the purpose to shirk duty characterizes the offense. This purpose element is important; without it, Article 115 would provide for court-martial and up to 10 years confinement for piercing one's ears. Medical malingering does not require any consideration of for the purpose to avoid work, duty, or service" and does not encompass attempted suicide. The Diagnostic and Statistical Manual, fourth edition, (DSM-IV-TR) defines medical malingering as: the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives.
q. Because that definition encompasses a wide range of conduct not punishable under Article 115, Dr. C---------'s malingering diagnosis cannot, without more details, satisfy the elements of the UCMJ malingering offense. If the applicant feigned or exaggerated his symptoms to gain attention, compensation, or services, even to romance a nurse, he could be diagnosed with medical malingering even though his conduct would not be punishable under Article 115.
r. Furthermore, neither the medical nor the military definition encompasses self-injury whose purpose is to alleviate anxiety and despair or to end one's life. Because Dr. C--------- never made any recorded finding that the applicant injured himself in order to shirk military duty, the Army could not rely on his medical malingering diagnosis to separate the applicant for malingering.
s. Although Colonel (COL) P----- recommended that the applicant be separated from service for impairments "due to depression" and persistent symptoms like "suicidal ideation due to depression," the applicant's command pursued UCMJ action to punish him for fraud and fakery. The Army discharged the applicant entirely on that basis: Sergeant (SGT) V------- and Captain (CPT) A------ both recommended his separation due to the "assessment made by the doctors" that he "[had] been malingering." The Army Discharge Review Board (ADRB) and ABCMR then cited Dr. C---------'s diagnoses as conclusive evidence that the applicant had committed the "servicediminishing" Article 115 offense. That conclusion was in error. The applicant's command and separation authority never cited any relevant evidence showing he injured himself for the purpose of avoiding work, duty, or service.
t. The applicant's command and separation authority misunderstood or intentionally ignored Article 115's purpose element. When SGT V------- appeared at the hospital to threaten the applicant with court-martial for malingering, he provided the language from Article 115 with the purpose element missing. The definition he gave was false and misleading and would provide for criminal punishment for piercing one's ears. He recorded that the applicant needed counseling about malingering due to the fact that he was admitted to the Behavioral Health Ward "due to wounds that were self-inflicted." He never once alleged that the applicant inflicted those wounds to shirk military duties and apparently acted on the false premise that intentional self-injury, or seeking treatment for that injury, was punishable without anything more.
u. SGT V------- revealed this misunderstanding again on 2 October 2007, when he recommended UCMJ action against the applicant due to the assessment made by the doctors that he had been malingering by attempting to injure or kill himself without significant indications that he was suicidal due to a mental disorder. Even if that were an accurate account of the medical record, SGT V------- merely alleged that the applicant was suicidal without psychiatric cause. That hardly establishes that the applicant's conscious purpose in injuring himself was the fraudulent evasion of military duty, or any other external incentive. In United States v. Johnson, the Court of Military Appeals made clear that suicidal intent does not equate to malingering, without more indications. It was stated that "Although the inevitable result of success in an attempted suicide will be the inability to perform any further 'work, duty, or service . . . The foreseeability of this outcome is not equivalent to a 'purpose' within the meaning of Article 115." Army commands cannot throw out essential elements of offenses created by Congress and the President to justify disciplinary action as they see fit.
v. The applicant's command also relied entirely on a malingering diagnosis that could not possibly support the Army's stated basis for separating the applicant, even if it was not retracted. The Army punished the applicant for self-injuring and said so explicitly. But Dr. C--------- first diagnosed the applicant with malingering on 27 August 2007, weeks before the applicant attempted suicide.
w. In its previous denial, the ABCMR justified its decision by citing that 27 August 2007 diagnosis only. Though Dr. C--------- made note of the applicant's scars from previous self-injuries at that time, evidence of concealed injuries for which the applicant never sought treatment or attention could hardly be said to evidence his intentional design to avoid work, duty, or service. If anything, they demonstrate that he hid his mental injuries and suicidal urges until he reached his breaking point. He had, after all, purposely injured himself where his uniform would cover up any sign of his injuries. And after attempting suicide a second time (post-service), VA providers noted that he denied he was suicidal while his neck showed hours-old rope burn marks from a noose. Despite his reticence to reveal these symptoms, his psychiatrists recognized his mental injuries as genuine and severe, and not as malingering.
x. Even if Dr. C---------'s malingering diagnosis accused the applicant of the military offense, that evidence would be invalid because it was obtained in violation of the applicant's rights.
y. If Dr. C---------' s malingering diagnosis was meant to encompass more than medical malingering, that is, if he meant to allege that the applicant had committed a UCMJ offense, that finding would also be unlawful evidence obtained in violation of the applicant's rights. Dr. C--------- could not accuse the applicant of committing the malingering offense without relying on statements made in the protected confidence of the patient-psychiatrist relationship or as a response to illegal questioning about the origins of his injury and a suspected military crime. When an Army Soldier speaks with his psychiatrist, he has a legally-protected expectation that his statements will not be used to incriminate him or tarnish his characterization of service, as if he were speaking with his attorney. That expectation is essential to the patient-psychiatrist relationship and to the therapeutic process, so much so that Army regulations guarantee that "mental status evaluations conducted during the current period of enlistment" and "voluntary submission to a treatment and rehabilitation program cannot be used against a Soldier on the issue of characterization." If Dr. C--------- intended to don the Army investigator's hat instead of the treating psychiatrist's, to make an accusation instead of a diagnosis, he was required to inform the applicant and advise him of his legal rights.
z. In addition, regulations require that, "Any soldier, prior to being asked to make any statement relating to the origin, incurrence, or aggravation of any disease or injury that the soldier has suffered, shall be advised of his or her right that he need not make such a statement." Federal law grants soldiers the same protections. Prior to any questioning, all persons subject to the UCMJ who are reasonably suspected of a criminal offense must also be properly advised of their rights in accordance with Article 31 of the UCMJ and Military Rule of Evidence in the Manual for Courts-Martial. They must be advised that they do not have to make any statement regarding the offense of which they are accused or suspected.
aa. Dr. C--------- never gave the applicant any rights warnings at any time. Even if his assessments were well-documented, well-supported, and not retracted, and even if they specifically alleged that the applicant violated Article 115, they would be based on illegally obtained evidence and could not justify the applicant's separation. Statements the applicant allegedly made under interrogation at the hospital were also unlawfully obtained and did not prove he injured himself to avoid military duty.
bb. Though the applicant's command and separation authority relied on
Dr. C---------'s malingering diagnosis to justify his separation from service, they also referenced the fact that he was counseled on receiving information about malingering and refusing to deploy. As a preliminary matter, the applicant did not attempt suicide as a ruse to avoid duty, as the medical record clearly demonstrates, and he never refused to deploy. He took his mission seriously and had a proven track record of leadership. He continued to report to duty after his release from the hospital, voluntarily complied with pre-deployment procedures, worked well with others, and did what was needed.
cc. Even if the applicant explicitly refused to deploy though, his statements could not lawfully justify his separation for malingering. First, any such statements were obtained without required rights warnings and would be a
foreseeable response to questions about a suspected UCMJ infraction. Any such statements would be unlawfully obtained in violation of Article 31, military and federal law, and due process, and could not be used against him.
dd. Second, evidence that he refused to deploy would not establish that the applicant self-injured himself weeks earlier with the conscious purpose of avoiding duty. The applicant's command might have attempted to discharge him under Article 92 for failure to obey an order or Article 87 for missing movements that they did not speaks volumes but they could not cite his alleged refusal to deploy as proof of his conscious purpose to malinger weeks before. It is quite logical that after being overwhelmed by suicidal urges and violently attempting suicide, the applicant would then realize he could not stomach a return to combat, no matter the consequences. Army regulations in fact required that he not deploy at that time. "Psychiatric disorders that meet medical retention standards must demonstrate a pattern of stability without significant symptoms for at least 3 months prior to deployment" and "must demonstrate behavioral stability and minimal potential for deterioration or recurrence of symptoms in a deployed environment." Multiple Army psychiatrists warned that he was at grave risk under elevated stress levels and unfit for deployment.
ee. And yet, members of the applicant's command hostilely questioned the applicant in the hospital about a suspected crime while he was heavily medicated, with his wrist held together with staples. The Army sought to rely on his insistence on inpatient treatment at that time, under these strained circumstances, to evidence the cowardly and fraudulent purpose of a malingerer weeks before. That evidence does not show what the Army said it does and would be the invalid fruits of unlawful questioning even if it did.
ff. The record overwhelmingly indicates that the applicant's command committed error and injustice by mischaracterizing his self-injury as malingering. He suffered severe and diagnosed mental injuries from combat. These diagnosed mental conditions and no other were the true cause of his separation from service.
gg. The ABCMR should correct the applicant's military records to accurately reflect that he was separated from the Army due to medical disability. His psychiatrists and commanders committed error and injustice by failing to refer him into the Disability Evaluation System and for a required mental status evaluation pursuant to his discharge, especially after COL P----- recommended that he be separated due to "distress" and "impairment" caused by "clinically significant" depression and suicidal ideation due to depression. Had the Army provided MEB and mental status evaluations as required, the applicant would almost certainly have been honorably separated with a medical disability retirement.
hh. Federal law states that medical disability retirement is warranted where the service member's disability is at least 30 percent under the standard schedule of rating disabilities in use by the VA. That 30 percent rating requires evidence of "occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks... due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss." The applicant's symptoms of depression, anxiety, panic and paranoia, sleeplessness, and suicidal ideation were more than occasionally or intermittently impairing. They proved resistant to treatment and medication and coincided with a "significant performance decline," extended hospitalizations, round-the-clock suicide watch, and duty restrictions. They remained impairing and genuinely life-threatening for years thereafter, as confirmed by VA psychiatrists. Because those symptoms developed due to traumatic stress, the Army rating agency was in fact required to assign an evaluation of not less than 50 percent at the time of his release from active duty. The VA found them 30 percent disabling years later.
ii. Even if this Board is not convinced that the applicant's symptoms were at least 30 percent disabling at the time of his discharge, the record is clear that his command separated him from the Army for being medically unfit for deployment. Dr. C--------- and COL P------ both found him psychiatrically unfit for deployment and Dr. B----- and the Minnesota Multiphase Personality Inventory (MMPI-2) warned that he would show signs of "rapid behavioral deterioration" under elevated stress levels. The Army could not deploy him and so cast him off instead. As such, the Army should, at the very least, have awarded him disability severance pay in accordance with 10 USC §1202 and §1210 for medical impairments which are less than 30 percent disabling.
jj. Had the applicant's psychiatrists referred him for required Medical Evaluation Board (MEB) evaluation, the MEB would have confirmed that the applicant was medically impaired and disabled as a result of his mental injuries. The applicant's psychiatrists failed to follow Army regulations and DODIs requiring referral of mentally injured service members into the Disability Evaluation System (DES). Had they done so, the MEB would likely have confirmed the overwhelming weight of medical authority on record that the applicant's severe mental injuries caused his impairments for duty and rendered him medically disabled.
kk. Applicable regulations require physicians to refer service members with persistent or recurring mental health conditions to an MEB at the time those conditions are identified if they cause an impairment for military duty or social and industrial functioning, even if they normally do not render a service member medically unable to perform assigned duties. Physicians must refer such servicemembers to an MEB even if the service member faces separation for misconduct under other than honorable conditions.
ll. DODI 1332.38 lists the medical conditions and physical defects which are cause for referral into the DES to include:
(1) Affective or Mood Disorders, when the persistence or recurrence of symptoms requires extended or recurrent hospitalization, or the need for continuing psychiatric support;
(2) Anxiety, Somatoform Dissociative, or Neurotic Disorders, when symptoms are persistent, recurrent, unresponsive to treatment, require continuing have confirmed that the applicant's severe mental injuries caused his suicidal behavior, and
(3) impairment for duty, a presumption prevailing by law until overcome by substantial evidence and a great weight of the evidence, which simply does not exist anywhere on record.
mm. A physician's assistant's flawed physical retention profile in no way satisfied the Army's obligation to provide the applicant an MEB and mental status evaluation.
(1) To be clear, Ms. S-----'s examination in no way satisfied the requirement that the applicant be examined by a full MEB, including a licensed psychiatrist and charged with conducting a complete evaluation reflecting all of his medical problems and physical limitations. Nor did Ms. S-----'s examination satisfy the requirement that the applicant receive a full mental status evaluation from a mental health professional charged with assessing his conduct in light of his mental condition. The ABCMR's previous decision improperly cited her retention score to justify the applicant's discharge.
(2) Ms. S----- was not a trained mental health professional or even a licensed physician. She gave the applicant a perfect retention score, indicating "no psychiatric pathology" after a two-question investigation into his mental health; she asked him as many questions about smoking. Her two-question mental health evaluation also reflects plain error and inconsistency as she stated that the applicant denied feeling down, depressed or hopeless in the same examination that she noted his persistent symptoms of severe anxiety, tension, depression, suicidal ideation, and sleeplessness. She also apparently believed he displayed some signs of psychiatric pathology because she recommended that he continue taking anti-depressant medication and recommended follow-up evaluation from actual psychiatric professional, which he never received, not that is until his admission to the VA with rope burn marks from a noose around his neck.
nn. Had the applicant's command referred him for required medical and psychiatric evaluations, he would have been medically retired, instead of involuntarily separated for commission of a serious offense:
(1) A service member's intermediate commanders and separation authority are required to separate him through medical channels if he has an incapacitating physical or mental illness that was the direct or substantial contributing cause of the conduct for which separation action is being considered. DODI 1332.38 also calls for servicemembers to be referred to the DES when pending separation for misconduct if medical impairment or extenuating circumstances may be the cause of the conduct proscribed.
(2) Under that standard, it was clear error to punitively separate the applicant for self-injury instead of medically separating him from service. The applicant's documented depression and PTSD at least substantially contributed to the self-harm for which he was treated and punished. The applicant's commanders had this record before them and Winn Army Community Hospital psychiatrists' recommendations that he be separated due to impairing depression and suicidal ideation due to depression. And yet they punitively separated him for intentionally and fraudulently shirking duty. Had they referred him to an MEB, the MEB would have confirmed COL P------ findings and medically retired him. This Board should correct the applicant's records and retroactively grant the applicant the medical retirement he was, thereby, wrongfully denied.
oo. In the alternative to medical disability, the Army should correct the applicant's records and award him active duty pay and allowances he lost as a result of his invalid and illegal discharge from service.
(1) Even if the Board is not convinced that the applicant should have been given medical disability retirement or severance pay, it is clear that he should not have been separated for malingering. The Federal Court of Claims has held that an administrative discharge is void if it ignores procedural rights or regulations, exceeds applicable statutory authority, or violates minimum concepts of basic fairness. If the Army discharges a serviceman in violation of its own regulations, such discharge will be invalidated, even if the Army could have validly discharged him at the time it did so invalidly.
(2) Because the Army violated multiple laws and regulations, as discussed above, and never produced any valid evidence to even allege that the applicant injured himself to shirk duty, his discharge is void. Under Army Regulation (AR) 15-185, paragraph 3-1, he is entitled to recover his active duty pay and allowances, with interest, from the date of his unlawful discharge, 14 February 2008, through 18 March 2009, the date when his term of service would otherwise have expired.
pp. Counsel concludes:
(1) There is no legitimate basis to call the applicant a malingerer. The Army found that he was burning with mental anguish and tried to put out the flames, then punished and discarded him for giving off smoke. He returned wounded from a year of combat on the "world's most dangerous road," only to face cruel and disrespectful treatment when he summoned the courage to seek help. That should strike this Board as an outrage.
(2) Had the applicant truly malingered and inflicted self-injury to fraudulently shirk military duty, his command would likely have recommended much harsher punishment. Under Article 115, malingering in time of war subjects a servicemember to dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years. Instead, the applicant's command recommended a GD and administrative separation. But a GD is not some just compromise. The applicant either fraudulently injured himself to shirk duty or was innocent of that charge, as his medical and military records overwhelmingly indicate. Because the Army failed to establish that the applicant committed any offense, it was clear error and injustice to characterize his distinguished military service as anything other than honorable. These remedies are necessary to accurately reflect the character and quality of the applicant's military career and to entitle him to benefits he earned in service to this country.
3. Counsel provides the documents outlined in the Table of Contents shown as
* Exhibit 1: Affidavit of D---- F------ (Note: paragraphs 9 through 17 are missing from the copy provided.)
* Exhibit 2: Affidavits of R----- J------ and K-------- G--------
* Exhibit 3: 2 December 2010 VA Letter of Support from G-------- F------
* Exhibit 4: DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Exhibit 5: ABCMR Docket Number AR20120011224, dated 5 February 2013
* Exhibit 6: ADRB in Docket Number AR20080013554, dated 12 June 2009
* Exhibit 7: 28 August 2008 DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* Exhibit 8: Office of the Surgeon General (OTSG), Medical Command (MEDCOM) Policy Memorandum 11-076, dated 21 September 2011
* Exhibit 9: OTSG/MEDCOM Policy Memorandum 12-035, dated 10 April 2012
* Exhibit 10: 15 August 2007 Standard Form (SF) 558 (Emergency Room Discharge Summary) signed by Dr. M-----,
* Exhibit 11: 16 August 2007 Standard Form (SF) 600 (Chronological Record of Medical Care) signed by Diet Technician, D. B------
* Exhibit 12: 21 August 2007 SF 600, signed by Dr. T----- B-----
* Exhibit 13: 21 August 2007 MMPI-2 Inpatient Mental Health Interpretive Report
* Exhibit 14: 27 August 2007 MEDCOM Form 699-R (Mental Status Evaluation) signed by Dr. C---------,
* Exhibit 15: 28 August 2007 MEDCOM Form 691-R (Medical Record - Patient Release Discharge Instructions)
* Exhibit 16: 28 August 2007 DA Form 3647 (Record of Outpatient Treatment) signed by Dr. C---------
* Exhibit 17: 28 August 2007 SF 600 signed by Dr. T----- B-----
* Exhibit 18: 10 September 2007 SF 558 (Emergency Room Discharge Summary)
* Exhibit 19: 10 September 2007 Psychiatric Clearance for Deployment Memorandum
* Exhibit 20: 11 September 2007 MEDCOM Form 699-R (Mental Status Evaluation Report) signed by Dr. C---------
* Exhibit 21: 1 October 2007 MEDCOM Form 691-R
* Exhibit 22: 1 October 2007 DA Form 3647 (Record of lnpatient Treatment) signed by Dr. C---------
* Exhibit 23: 2 October 2007 SF 600 signed by Dr. N---- L-----
* Exhibit 24: 15 October 2007 DD Form 2795 Pre-Deployment Health Assessment,
* Exhibit 25: 15 October 2007 Psychiatric Clearance for Deployment Memorandum
* Exhibit 26: 20 December 2007 DD Form 2807-1 (Report of Medical History)
* Exhibit 27: 20 December 2007 DD Form 2808 (Report of Medical Examination)
* Exhibit 28: 29 December 2007 Separation Examination Report signed by Physician's Assistant, P------ S-----
* Exhibit 30: 17 May 2007 DA Form 4856 (Developmental Counseling Form)
* Exhibit 31: 30 August 2007 DA Form 4856
* Exhibit 32: 25 September 2007 DA Form 4856
* Exhibit 33: 1 October 2007 DA Form 4856
* Exhibit 34: 1 October 2007 Memorandum for Record: Revocation of Pass Privileges
* Exhibit 35: 2 October 2007 DA Form 4856
* Exhibit 37: 15 January 2008 Recommendation for Separation under AR 635-200 signed by CPT A------
* Exhibit 38: 15 January 2008 Memorandum of Notification
* Exhibit 39: 15 January 2008 Receipt of Memorandum of Notification
* Exhibit 40: 22 January 2008 Approval of Separation under AR 635-200 signed by MAJ C-------S-----
* Exhibit 41: 26 January 2008 Approval of Separation under AR 635-200 signed by LTC Gx--- II
* Exhibit 42: Command Directed Mental Health Evaluation Referral signed by CPT A------ (Undated)
* Exhibit 43: Form 40-6A-R (Unit Commander Request for Mental Health Evaluation) (Undated)
* Exhibit 44: 7 February 2011 VA Rating Decision
* Exhibit 45: VA Progress Notes
* 9 February 2010 Patient Record Flag by Suicide Prevention Coordinator T------- at page 25
* 15 January 2010 Psychology Progress note signed by Dr. W--------- at page 35
* 31 December 2009 Psychology Progress note signed by Dr. W-------- at page 50
* 18 December 2009 Psychology Progress note signed by Dr. W-------- at page 57
* 25 November 2009 Patient Suicide Risk Assessment signed by
Dr. M------- at pages 78-70
* 16 November 2009 Assessment of Violence Risk Factors signed by LCSW S---- and Dr. M------- at pages 100-10
* 2 November 2009 Patient Record Flag by Suicide Prevention Coordinator at page 127
* 1 November 2009 Psychiatry Nursing Inpatient Note signed by
RN Fxxx at pages 129-30
* 30 October 2009 Psychiatry Attending Note by Dr. C--------- at pages 135-36
* 30 October 2009 Psychiatry Nursing Inpatient Note signed by
RN D----- at pages 138-39
* 2 November 2009 Patient Suicide Risk Assessment signed by
Dr. C--------- at page 142
* 2 November 2009 Patient Assessment Notes signed by Dr. D---- and Dr. C--------- s at pages 144-46
* 30 October 2009 Mental Health Treatment Plan by RN G----- T----- at page 146
* 29 October 2009 Nursing Diagnosis and Plan of Care signed by
RN S--------- at pages 159-62
* 29 October 2009 Patient Assessment Notes signed by Dr. M------ at pages 174-75
* Exhibit 46: 4 November 2009 VA Discharge Summary by Dr. C---------
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120011224, on 29 January 2013.
2. The applicant's service medical records are on permanent loan to the VA. A complete copy of the records were not available for review at the time of the previous review. The additional medical records provided and arguments set forth by counsel constitute new evidence warranting a reconsideration.
3. The applicant enlisted in the Regular Army on 9 March 2004, completed training, and was awarded military occupational specialty 13F (Fire Support Specialist). The highest grade he held on active duty was specialist (SPC), E-4.
4. He served in Iraq from 29 January 2005 through 15 January 2006.
5. The applicant's records include the following DA Forms 4856:
a. A 12 February 2007 DA Form 4856 states:
"SPC F------ the purpose of this counseling is to inform you about Article 115 of the Uniform Code of Military Justice, which is known as Malingering. In this counseling we will discuss what Malingering is and what the consequences for this violation of the Uniform Code of Military Justice are.
SPC F------, it is my duty as your team chief to inform you about Malingering. Although you have never had a past history of Malingering this is simply a counseling to inform you of what it is and what its consequences are. Malingering is defined as a medical or psychological term that refers to an individual fabricating or exaggerating the symptoms of mental or physical disorders for a variety of motives, including getting financial compensation (often tied to fraud), avoiding work, obtaining drugs, getting lighter criminal sentences, or simply to attract attention or sympathy.
Being convicted of Malingering could lead to either an Article 15 or a Court Martial. In return, if found guilty of this infraction it could lead to forfeiture of pay, restriction to an area designated by the convening authority, reduction in rank, confinement, separation from the army, or a less than favorable discharge. All of these things could gravely affect the outcome of your military career and possibly follow you for the rest of your life."
b. A 17 May 2007 DA Form 4856 states:
"SPC F------, in this counseling we will review your performance from 040403 thru 070517. During this time you successfully participated in an exercise at the National Training Center at Fort Irwin, CA. While there you received an Army Achievement Medal for your performance during that exercise.
SPC F------, during this time you participated as the driver of the 3rd Colt Team, 4th Plt, HHB 1-67 FA. While at the National Training Center you[r] commitment to this team ensured that we would be ready for any mission we received at any time. In doing so you set a positive example for the junior enlisted members of the 4th Plt. By doing this you allowed your team chief as well as other Noncommissioned Officers in the platoon to accomplish tasks set out before them as well as the successful completion of any missions assigned.
While at the National Training Center our deployment date was changed to September of this year. Even though our date changed it does not mean that we will prepare for this upcoming deployment any differently than before. We will continue to work as a team. Study the eight coin fundamentals, and prepare for the deployment accordingly.
During this time it has been determined that you may be ready to become a Noncommissioned Officer. Prior to leaving the National Training Center you began to receive guidance and instructions to complete tasks set before you. Your successful completions of those tasks are only a stepping stone on the path to becoming a Noncommissioned Officer. You will have to prove yourself every day until you go to the board and even after that you will need to put forth a maximum effort to demonstrate that you are ready for this responsibility."
c. A 25 September 2007 DA Form 4856 states:
"SPC F------, it is my duty as your first line supervisor to re-enforce the counseling you received about Malingering. Due to recent events that have transpired while you were assigned to this unit it is my duty to reinforce what was stated in your last counseling about Malingering. For this reason I will define what article Malingering is, what Malingering is, and what the consequences of malingering are.
If charged with Malingering you would be in violation of Article 115 of the Uniform Code of Military Justice. Malingering as defined by the Manual for Courts Martial is feigning illness, physical disablement, mental lapse, derangement; or intentionally inflicting self-injury. If found to be in violation of this article the manual for courts martial directs that you will receive a trial by court-martial. The maximum punishment for the violation of Article 115 of the Uniform Code of Military Justice without intentional self inflicted injury is a dishonorable discharge, forfeiture of all pay and allowances, as well as confinement for 1 year for each offense committed. The maximum punishment for the violation of Article 115 of the Uniform Code of Military Justice with intentional self inflicted injury is a dishonorable discharge, forfeiture of all pay and allowances, as well as confinement for 5 years for each offense committed.
This counseling is being given to you due to the fact that you have been admitted to the Behavioral Health Ward 3A of Winn Anny Community Hospital. The reason you were admitted both times to the Behavioral Health Ward is due to wounds that were self inflicted. If it is determined by Staff of Behavioral Health Ward and this Command, that you are in violation of this article you be dealt with accordingly."
d. A 2 October 2007 counseling form states
"Recommendation of UCMJ action.
SPC F------, you have recently been released from the Behavioral Health Ward at Winn Army Hospital on Ft. Stewart Georgia. The assessment made by the doctors is you have been malingering in which you have attempted to injure or kill yourself and do not show significant indications that you are suicidal due to a mental disorder. You also stated in one of the many meetings which I attended that your concern is that you do not and refuse to deploy with the 4th BCT. You also stated that you would rather take a dishonorable discharge and serve time in prison than deploy again. Also during this time you showed obvious disrespect to COL P----- by not acknowledging her during routine questioning. SPC F------ COL P----- is a General Officer [sic] and disrespect of any form will not be tolerated. SPC F------ the command will be recommending UCMJ action.
You are advised that separation action may be initiated under the provision of Army Regulation 635-200 if this behavior/conduct continues. If separated you could receive an honorable, under honorable conditions, or under other than honorable conditions discharge characterization of service. If separated with less than an honorable discharge, you could receive substantial prejudice in civilian life, and it may affect civilian employment, veterans' benefits, and related matters. It is unlikely that you would be successful in any attempt to have the character of your service changed."
6. On 15 January 2008, the unit commander notified the applicant of his intent to initiate action to separate him under the provisions of AR 635-200, chapter 14, by reason of commission of a serious offense, citing the applicants malingering after being counseled by his chain of command on malingering and refusal to deploy. The applicant consulted with counsel and was advised of the basis for the contemplated separation action, its effects, and of the rights available to him in connection with the action.
7. On 14 February 2008, the applicant was discharged with a GD in accordance with AR 635-200, paragraph 14-12c, for misconduct, commission of a serious offense. He had 3 years, 11 months, and 6 days of creditable service with no lost time.
8. His DD Form 214 lists his awards as the Army Commendation Medal, Army Achievement Medal, Army Good Conduct Medal, National Defense Service Medal, Global War on Terrorism Service Medal, Iraq Campaign Medal, Army Service Ribbon, Overseas Service Ribbon, Combat Action Badge, and Driver and Mechanic Badge with Driver Wheeled Vehicle Clasp.
9. The ADRB denied the applicant's request for an upgrade on 28 August 2008.
10. The medical records provided by counsel are not complete, the records provided commence on 15 August 2007. The medical documents provided show:
a. On 15 August 2007 the applicant was hospitalized for suicidal ideation in that he reported "feeling like using a gun on himself for the past three weeks." The admission diagnosis was depression with suicide ideation.
b. The record of inpatient treatment afforded the primary diagnosis of a dysthymic disorder, with secondary diagnoses of opioid abuse, malingering, personality disorder, suicidal ideation, and a history of an old superficial laceration on the wrist.
c. A 16 August 2007 SF 600 reports the applicant was seen for nutritional care due to a 10-pound weight loss over a 2-week period.
d. A 21 August 2007 SF 600 reports the applicant was seen for psychological testing including completion of the MMPI-2. It was noted that the applicant's scores indicted he endorsed many extreme items and described himself as extremely disturbed, claiming many more extreme psychological symptoms than most patients do. It was opined that either the applicant was very disturbed or he was exaggerating his systems to gain attention or services. Diagnostically he was to be followed as possibly having a severe neurotic disorder such as an anxiety disorder, dysthymic disorder, or a schizoid personality. This report was signed by Dr. B-----.
e. A 27 August 2007 Mental Status Evaluation conducted by Dr. C-------- states:
The applicant was hospitalized and evaluated from 15 August 2007 to 27 August 2007. The purpose of this evaluation was explained to him.
Section II Evaluation all blocks are check as normal.
Summary of Evaluation:
The soldier was admitted to Winn Army Community Hospital for a comprehensive psychiatric evaluation. He displayed no significant withdrawal symptoms. He displayed no suicidal behavior on the ward and participated cooperatively in individual and group therapy. He is not regarded as a danger to self or others at the time of discharge.
Diagnosis:
Axis I: Dysthymia, Opioid Abuse, Malingering
Axis II: Personality Disorder
Axis III: None
Findings:
This individual was and is mentally sound and able to appreciate any wrongfulness in his conduct and to conform his conduct to the requirements of the law. He has the mental capacity to understand and participate in board or other administrative proceedings.
Recommendations:
It is recommended that (the applicant) be returned to duty. He will receive immediate follow up from DMHA and ASAP and should be counseled to attend all scheduled follow up. He is cleared for all administrative actions.
f. The Patient Release/Discharge Instructions dated 28 August 2007 shows the applicant was discharged as stable. His admission diagnosis was to rule out (R/O) adjustment disorder and discharge diagnoses of Dysthymia, opioid abuse, personality disorder, and malingering.
g. On 10 September 2007, the applicant "gashed" his wrist with a razor, reportedly intending to take his life. The injury was considered a suicide attempt. The wound was closed with four staples and he was hospitalized for five weeks, on round-the-clock suicide watch and restricted duty. The attending physicians recommended he be separated from service due to depression and suicidal ideation due to that depression. Based on the suicide gesture he was found to be unfit for deployment.
h. A 11 September 2007 Mental Status Evaluation states:
This is to certify that the (applicant) was hospitalized and evaluated from 10 September 2007 to the present. The purpose for this evaluation was explained to him.
Summary of Evaluation
The soldier was admitted to Winn Army Community Hospital for comprehensive psychiatric evaluation. He displayed no significant withdrawal symptoms. He displayed no suicidal behavior on the ward and participated cooperatively in individual and group therapy He is not regarded as a danger to self or others at the time of discharge.
Diagnosis
Axis I: Malingering
Axis II: Personality Disorder
Axis III: Self Inflicted Laceration
Findings
This individual was and is mentally sound and able to appreciate any wrongfulness in his conduct and to conform his conduct to the requirements of the law. He has the mental capacity to understand and participate in board or other administrative proceedings.
Recommendations
It is recommended that (the applicant) be returned to duty and the appropriate disciplinary actions taken. He will receive immediate follow up from DMHA and ASAP and should be counseled to attend all scheduled follow up. He is cleared for all administrative actions.
i. A 2 October 2007 outpatient treatment record shows the applicant had been released from the hospital the day before but went back to his routine of not sleeping. He was assessed and diagnosed as having an adjustment disorder with depressed mood and a personality disorder.
j. A 15 October 2007 Psychiatric Clearance for Deployment Memorandum found advised the command that the applicant was unfit for deployment. It stated:
It is recommended that the SM be chaptered from the Army and not deploy due to his continuing to present with depression and personality features that cause clinically significant distress and/or impairment. The patient was hospitalized for a three week period in September 2007 and continues to speak of experiencing suicidal ideations due to depression. If deployed, it is further recommended that the patient be followed by behavioral health in theater so that his case can be closely monitored.
k. A medical examination conducted on 20 December 2007 states the applicant reported that he did not feel depressed and did not feel he had little or no pleasure in doing things. On the associated Report of Medical History, the applicant reported a history of anxiety, depression, suicidal ideation with suicidal attempts, a past use of opioides, and having had an appendectomy while serving in Iraq.
11. The VA medical records provided show the applicant started receiving VA care in October 2009 when he was admitted to a VA hospital for suicidal ideation. At this time he reported he drank 6 -12 beers daily, had been charged twice for driving under the influence (DUI), uses ecstasy and snorts coke twice a week, and occasionally uses marijuana. At this time he reported having trouble adjusting after leaving Iraq. He reported he was not having any nightmares or flashbacks but was still hypervigilant for the possibility of roadside bombs. Upon admission he had a depressed mood, feelings of worthlessness, and trouble with falling and staying asleep.
12. During his 10 December 2010 rating examination the applicant reported recurrent recollections of traumatic events, frequent nightmares, flashbacks, avoidance of stimuli, diminished in activities of interest, irritability, hypervigilance, outbursts of anger, and difficulty establishing and maintaining effective work/ school and social relationships.
13. On 7 February 2011, the VA granted the applicant a 30-percent disability rating for PTSD. The rating decision states that the applicant's award of the Combat Action Badge is sufficient to concede combat exposure. In concert with his in-service treatment for depression, anxiety, and his suicidal ideation and his VA outpatient treatment for PTSD since February 2010 with a December 2010 VA definitive diagnosis of PTSD was sufficient to warrant award of the rating for PTSD.
14. In statements from both a fellow Soldier and the applicant, it is stated that their command had a culture of stigmatization around mental health issues. This is clearly shown in that all Soldiers in the command were both as individuals and as a whole counseled about the provisions of UCMJ Article 115 malingering. They opine that this was due to an effort to ensure that as many personnel would be available for their second deployment. The fellow Soldier related his personal experience with being told not to seek medical care and related that another Soldier committed suicide just a few days after being told not to seek mental health treatment.
15. The DSM, Fifth Edition, Text Revision (DSM-5), states malingering is a deliberate behavior for a known external purpose. It is not considered a form of mental illness or psychopathology, although it can occur in the context of other mental illnesses. Malingering receives a V code as one of the other conditions that may be a focus of clinical attention. It describes malingering as follows:
"The essential feature of Malingering is the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as avoiding military duty, avoiding work, obtaining financial compensation, evading criminal prosecution, or obtaining drugs.
The Minnesota Multiphasic Personality Inventory (MMPI) can detect inconsistent or atypical response patterns associated with malingering. The F scale and the F-K index are the most valuable indicators. Several subscales, such as the Fake Bad Scale, have been extracted from MMPI profiles. Multiple other psychological tests have been validated for detection of malingering, including the Test of Memory Malingering, the Negative Impression Management Scale, and the Rey 15-Item Test."
16. The Mayo Clinic medical reference website describes self-cutting as:
Self-injury, also called self-harm, is the act of deliberately harming your own body, such as cutting or burning yourself. It's typically not meant as a suicide attempt. Rather, self-injury is an unhealthy way to cope with emotional pain, intense anger and frustration.
While self-injury may bring a momentary sense of calm and a release of tension, it's usually followed by guilt and shame and the return of painful emotions. And with self-injury comes the possibility of more serious and even fatal self-aggressive actions.
Because self-injury is often done impulsively, it can be considered an impulse-control behavior problem. Self-injury may be linked to a variety of mental disorders, such as depression, eating disorders and borderline personality disorder.
There's no one single or simple cause that leads someone to self-injure. In general, self-injury is usually the result of an inability to cope in healthy ways with psychological pain related to issues of personal identity and having difficulty "finding one's place" in family and society. The person has a hard time regulating, expressing or understanding emotions. The mix of emotions that triggers self-injury is complex. For instance, there may be feelings of worthlessness, loneliness, panic, anger, guilt, rejection, self-hatred or confused sexuality.
Through self-injury, the person may be trying to:
* Manage or reduce severe distress or anxiety and provide a sense of relief
* Provide a distraction from painful emotions through physical pain
* Feel a sense of control over his or her body, feelings or life situations
* Feel something, anything, even if it's physical pain, when feeling emotionally empty
* Express internal feelings in an external way
* Communicate depression or distressful feelings to the outside world
* Be punished for perceived faults
17. 10 USC §1552 (Correction of Military Records: Claims Incident Thereto) provides the legislative authority for the Armed Forces Boards for Correction of Military/Naval Records.
18. 10 USC §1553 (Review of Discharge or Dismissal) provides the legislative authority for the Armed Forced Discharge Review Boards.
19. DODI 1332.38 states that it is not within the mission of the Military Departments to retain members on active duty or in the Ready Reserve to provide prolonged, definitive medical care when it is unlikely the member will return to full military duty. Service members shall be referred into the DES as soon as the probability that they will be unable to return to full duty is ascertained and optimal medical treatment benefits have been attained. All members shall be referred for evaluation within one year of the diagnosis of their medical condition if they are unable to return to military duty.
20. OTSG/MEDCOM Policy Memo 11-076, dated 21 September 2011, Subject: Medical Evaluation Board (MEB) Processing Guidance, updated guidance and procedures for MEB and Physical Evaluation Board (PEB) processing to include new guidance for Soldier's MEB Counsel Services, Reserve Component (RC) Soldier Medical Support Center (SMSC), and the MEDCOM Medical Evaluation Board Tracking Office (MEBTO) to support the management of RC MEBs. (Note: It does not specifically address the issues of PTSD or malingering.)
21. OTSG/MEDCOM Policy Memo 12-035, dated 10 April 2012, Subject: Policy Guidance on the Assessment and Treatment of Post-Traumatic Stress Disorder (PTSD), provides in part the following:
a. PTSD is an important health condition estimated to occur in 3-6% of Service Members (SMs) with no deployment experience and in 5-25% of SMs who have been deployed to combat zones, with combat frequency and intensity being the strongest predictor of the condition. The majority of SMs with PTSD do not receive treatment for this condition. The availability of consistent evidence-based assessment and treatment services for PTSD is a high priority for the U.S. Army Medical Department.
b. The accepted medical definition for PTSD is codified in the fourth edition (text revision) of American Psychiatric Association DSM-IV-TR. However, the DSM-IV-TR is well over a decade old, and is currently undergoing revision. There is considerable new evidence that certain aspects of the definition are not adequate for individuals working in the military and other first responder occupations. In particular, the A2 criterion has been shown to be inadequate in defining the response to trauma for SMs and other first responders (e.g., police, firefighters), who undergo rigorous training in how to respond to multiple traumatic events as part of their occupations (e.g., Adler 2008, Castro 2011). They often do not endorse "fear, helplessness, or horror," the typical response of civilian victims to random traumatic events. Although they may experience fear internally they are trained to fall back on their training skills, may have other responses such as anger, or may express helplessness in less direct ways, such as frustration with rules of engagement or leadership decisions over which they had no control that put them in dangerous situations. As a result, the DSM-V committee has recommended removal of the A2 criterion. This committee has also recommended changes to the A1 criterion for exposure to a traumatic event, broadening the definition to be more inclusive of the types of repetitive threats experienced by first responders that have been shown to be risk factors for PTSD symptoms.
c. Considerable variation exists in clinical diagnostic practice that is within the standard of care and related to a number of factors such as:
(1) the severity, chronicity, episodic, or situational nature of symptoms;
(2) co-existing conditions that have the same or similar symptoms (e.g., major depression, other anxiety disorders, alcohol/substance use disorders);
(3) the occupational context (e.g., early PTSD symptoms that are deployment-related may be diagnosed under a less stigmatizing combat stress reaction V-code; PTSD symptoms that impair social functioning in garrison may also be adaptive in a deployed military context);
(4) the stigmatizing effects of certain diagnoses;
(5) patient preferences (for example, a career Officer or Non-Commissioned Officer may not want a diagnosis of PTSD documented in their medical record);
(6) clinician perspectives; and
(7) other factors.
d. There is evidence from one survey of Army providers that it is not uncommon within Medical Treatment Facilities (MTF) for service members who have the diagnosis of PTSD (and are receiving treatment for it) to not be given this as the coded diagnoses for that visit. The visit may instead be coded as an Anxiety Disorder Not Otherwise Specified, sleep disorder, V-code diagnoses (including a generic deployment-related health condition), or other condition. In this survey, reducing stigma and protecting future career prospects was listed as the leading reason for this, and reflects a current standard of practice within military treatment settings.
e. Although there has been debate on the role of symptom exaggeration or malingering for secondary gain in DOD and VA PTSD DES processes, there is considerable evidence that this is rare and unlikely to be a major factor in the vast majority of disability determinations. Strong evidence comes from an internal 2005 study by the VA Office of the Inspector General showing that of 2,100 VA disability cases rated at 50 percent or higher, only 13 (0.6 percent) had evidence that they were potentially fraudulent. These findings were later corroborated in a study by Dohwenrend, who found virtually no evidence of attempts by veterans to inflate disability claims. Several other studies have shown that compensation seeking and disability benefits are associated with improved treatment outcomes. As a result of these and other studies, the VA recently relaxed policies that required veterans to provide proof of specific combat-related traumatic stressors, essentially accepting that deployment to a warzone is sufficient to meet the A1 criterion. This is consistent with evidence from peer-reviewed studies showing that the perception of threat (distinct from the level of actual threat) is an independent predictor of PTSD symptoms, and is also consistent with the DSM-V committee's current recommended definition change.
f. Although clinicians have broad discretion with regard to which diagnoses they record in the Armed Forces Health Longitudinal Technology Application (AHLTA), it is critical that they thoroughly document symptoms, functional impairment, differential diagnosis, and clinical decision making processes in the AHLTA note(s). In situations where providers use less stigmatizing diagnostic codes when clinically indicated (e.g., to facilitate therapeutic alliance, acceptability of treatment, or likelihood of continued treatment engagement), they should provide explicit information in the note so that other clinicians can understand their diagnosis and treatment decisions.
g. Clinicians must adhere to the following requirements:
(1) Personality Disorder: A personality disorder diagnosis should not be given unless there is reliable and sufficient objective evidence that the condition truly represents a pervasive and enduring pattern of behavior, usually beginning in adolescence. When a personality disorder is diagnosed as part of clinical care, the condition must be listed as a focus of treatment in the treatment plan, and clinicians must carefully consider whether the diagnosis will be more beneficial than harmful for the individual. For diagnosis as part of an administrative separation process, an evaluation for PTSD is required, and OTSG approval is required per OTSG/MEDCOM policies 11-010 and 10-040.
(2) Adjustment Disorder: An adjustment disorder diagnosis should not be given if there is evidence that the individual has another specific Axis I disorder that explains the symptoms, or the symptoms reflect an exacerbation of a pre-existing Axis I or II condition. Bereavement is also a DSM-IV exclusion criterion. Administrative separation for an adjustment disorder for any Soldier who has ever been deployed to an imminent danger pay area requires an evaluation for PTSD, as well as OTSG approval per OTSG/MEDCOM Policy Memos 11-010 and 10-040.
(3) Malingering: Although the influence of secondary gain is an important clinical consideration in the differential diagnosis, the diagnosis of malingering should not be made unless there is substantial and definitive evidence from collateral or objective sources that there are false or grossly exaggerated symptoms that are consciously produced for external incentives. Poor effort testing on psychological/neuropsychological tests does not equate to malingering, which requires proof of intent, per OTSG/MEDCOM Policy 11-076. In addition, this diagnosis requires the signatures of two credentialed care providers, including a supervisor, Department Chief, or Deputy Commander for Clinical Services (OTSG/MEDCOM Policy 11-076).
h. Treatment of PTSD should be in accordance with the 2010 VA/DOD Clinical Practice Guidelines (CPG). Primary care and specialty care providers should be particularly aware of the following key treatment considerations, supported by this guideline:
(1) All patients treated for PTSD should be offered an A-level treatment option (strong recommendation, benefits substantially outweigh harm). There is insufficient evidence that A-level trauma-focused psychotherapy is necessarily more effective than A-level pharmacotherapy for PTSD, and both options individually or combined are consistent with the standard of care. However, in practice, patients often have preferences for non-medication options, and may have co-existing concerns, such as grief, guilt, or relationship problems, which lead themselves to psychotherapy approaches.
(2) A-level psychotherapy for PTSD in the VA/DOD CPG is defined as "trauma-focused psychotherapy that includes components of exposure and/or cognitive restructuring; or stress inoculation training" provided on an individual basis. The components of trauma-focused PTSD psychotherapy include: narration (e.g., imaginal exposure), cognitive restructuring, in-vivo exposure, relaxation or stress modulation skills, and psycho-education.
(3) The components of trauma-focused psychotherapy may be delivered using manualized packages such as Prolonged Exposure Therapy, Cognitive Processing Therapy, or Eye Movement Desensitization and Reprocessing (EMDR), or other strategies (e.g., written narration, life narrative techniques, Brief Eclectic Psychotherapy, Stress Inoculation Training, or other forms of trauma-focused cognitive behavioral therapy), all of which have been shown to have generally equivalent effectiveness. Because of the complexity of PTSD and co-existing conditions, strict fidelity to treatment protocols is often challenging, and clinicians are not required to adhere to a specific treatment manual as long as they document their clinical decision-making and approach to delivering the core components of trauma-focused therapy in the patient's AHLTA record. Selection of the approach should be based on clinical considerations (e.g., severity of symptoms and co-existing conditions), patient preferences, clinician expertise, and other factors. Matching evidence-based components to patient preferences is likely to help in fostering engagement and willingness to remain in treatment, which ultimately is one of the strongest predictors of overall treatment efficacy.
21. The UCMJ and Code of Military Criminal Law are applicable to all military members worldwide. It provides for the offenses and punishments for which a member of the military may be court-martialed or receive nonjudicial punishment. It provides the following relevant provisions:
a. Article 89 (Disrespect Toward Superior Commissioned Officer) Any person subject to this chapter who behaves with disrespect toward his superior commissioned officer shall be punished as a court-martial may direct.
b. Article 92 (Failure to Obey Order or Regulation) - Any person subject to this chapter who
* violates or fails to obey any lawful general order or regulation;
* having knowledge of any other lawful order issued by any member of the armed forces, which it is his duty to obey, fails to obey the order; or
* is derelict in the performance of his duties;
shall be punished as a court-martial may direct.
c. Article 115 (Malingering) states any person subject to this chapter who for the purpose of avoiding work, duty, or service feigns illness, physical disablement, mental lapse or derangement; or intentionally inflects self-injury; shall be punished as a court-martial may direct.
22. 10, USC, chapter 61 sets forth provisions for retirement or separation due to a physical disability including for personnel receiving medical retirement with a 30% or greater disability rating.
23. AR 40-501, paragraph 3-3b(1) provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.
24. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers. It provides:
a. Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; but rather it is provided disability separation or retirement to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. Although the ability of a Soldier to reasonably perform his or her duties in all geographic locations under all conceivable circumstances is a key to maintaining an effective and fit force, this criterion (world-wide deployability) will not serve as the sole basis for a finding of unfitness.
b. Paragraph 3-2b(2) provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.
25. AR 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. It provides the following:
a. Paragraph 3-7a states that an HD is a separation with honor. The honorable characterization of service is appropriate when the quality of the Soldiers service generally has met the standards of acceptable conduct and performance of duty.
b. Paragraph 3-7b states that a GD is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.
26. AR 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. It provides the following at:
a. Paragraph 2-2 The ABCMR will decide cases on the evidence of record. It is not an investigative body.
b. Paragraph 2-9 The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
c. Paragraph 3-1
* The Army, by law, may pay claims for amounts due to applicants as a result of correction of military records.
* The Army may not pay any claim previously compensated by Congress through enactment of a private law.
* The Army may not pay for any benefit to which the applicant might later become entitled under the laws and regulations managed by the VA.
DISCUSSION AND CONCLUSIONS:
1. At the time of separation, regulations and policy guidance did not require the same "precautions" or requirements with reference to PTSD and malingering diagnoses that were put into place four years after the applicant's discharge, most notably the requirement of a second clinician's opinion. The directed changes were not made retroactive. Therefore, the provisions set forth in those changes are not applicable to this case.
2. Counsel avers that Dr. C---------'s diagnosis is consistent with his demonstrated practice of misdiagnosing suicidal veterans with behavioral misdiagnoses as a matter of course. However, he offers no documentation only his allegations that Dr. C--------- has a "demonstrated practice of misdiagnosing suicidal veterans."
3. Counsel states Dr. C---------'s diagnosis of malingering was unsupported, it did not record any rationale for his diagnosis, and was refuted by the doctor's own final diagnosis. He then complains that what the doctor did say was a violation of the doctor/patient confidentiality. These arguments are self-contradictory and without merit. The doctors responsibility was to access the applicant's condition and advise the command of his findings as well as to provide care to the applicant.
4. Dr. C--------- saw the applicant on numerous occasions between 15 August and 20 December 2007. All of his different treatment notes include some aspect of depression with the majority also including the malingering diagnosis and/or a personality disorder. The fact that all of the reports do not include the malingering diagnosis is not a refutation of the earlier diagnoses.
5. While the applicant was found to be unfit for deployment (emphasis added) due to his suicide gestures there is no evidence he was formally found unfit for all duty. A finding of being unfit for duty (emphasis added) is a requirement for a granting of medical separation or retirement.
6. Counsel's contention that Dr. C--------- first diagnosed the applicant as malingering on 27 August 2007, weeks before the applicant attempted suicide and therefore could not be correct, is specious. The diagnosis of malingering does not require a suicidal attempt, but only a medical opinion that the patient is faking or exaggerating symptoms.
7. Counsel's contention that the applicant never refused to deploy is belied by the notations made on the 2 October 2007 counseling statement. To say otherwise is to imply that the person giving counseling is submitting a false official statement, which is also a UCMJ offense. The applicant and counsel have provided no evidence that this counseling statement was not factual.
8. Further, the counseling statement in question actually deals with three different issues, his malingering diagnosis, his disrespect toward a commissioned officer, and his refusal to deploy. All three issues are court-martial offenses.
9. The medical records provided by the applicant and counsel do not include a diagnosis of PTSD while on active duty.
10. The award of a VA compensation rating does not mandate change of, nor demonstrate an inequity in, a military disability rating. The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation. The VA is not required to determine fitness for duty at the time of separation. The Army must find a member physically unfit before he can be medically retired or separated. Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency. It does not, in itself, establish physical unfitness for Department of the Army purposes.
11. The applicant's conduct deteriorated significantly following his notification that he was to again be deployed. This conduct included not only the possible deliberate malingering situation but also included conduct that could have resulted in court-martial actions. Based on this conduct the applicant's service is shown to have been satisfactory but not so meritorious as to warrant an honorable discharge.
12. The applicant provided no military service from 14 February 2008 through 18 March 2009 nor is his discharge shown to have been inappropriate. Therefore, there is no reason or legal provision to reinstate the applicant to an active duty status and pay him for this period of time.
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 to amend the decision of the ABCMR set forth in Docket Number AR20120011224, dated 29 January 2013.
_______ _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) AR20130019277
4
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20130019277
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2012 | 20120010188
He did not require any psych medications during the hospitalization and did not report any PTSD symptoms. The discharge note stated he was not reporting any PTSD symptoms at that time. Although he carried a diagnosis, at various times, of PTSD, Anxiety Disorder, and/or Adjustment Disorder, he almost routinely denied symptoms of the above and was not interested in treatment for same.
AF | PDBR | CY2011 | PD2011-00721
The PEB adjudicated the asthma condition as unfitting, rated 30%; with application of Veterans Administration Schedule for Rating Disabilities (VASRD) and the CI was placed on Temporary Disability Retired List (TDRL) at 30%. Although originally prescribed a daily use inhaled maintenance/preventive medication, the CI elected to discontinue the medication and at final separation there was no indication that a daily-use inhalation preventive medication was used or prescribed. The NARSUM...
ARMY | BCMR | CY2012 | 20120022530
(No medical records provided to substantiate this statement) 12 December 2006 He tested positive for marijuana. The fact that the applicant suffered from mental health issues is not in question; however the medical treatment timeline and partial medical records provided by his counsel are insufficient evidence to show that the Army failed to provide timely and adequate medical treatment to the applicant or to show that he was not properly diagnosed. The applicant and his counsel further...
ARMY | BCMR | CY2013 | 20130004766
He also reported problems with sleeping and difficulty concentrating. On 20 April 2010, he attended a PTSD therapy session where a licensed clinical social worker stated he had PTSD and follow-on diagnoses clearly showed the applicant had Axis I PTSD and MDD. The applicant and counsel believe he should have received a medical retirement for his various medical conditions due to being granted a VA disability rating for his service-connected conditions.
AF | PDBR | CY2013 | PD-2013-02068
The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation. The MEB narrative summary (NARSUM) exam (approximately 11 months prior to separation) documented that the mental status exam was normal and that he was compliant with his anti-depressant medication with no active...
ARMY | BCMR | CY2013 | 20130002325
The 6 August 2003 Report of Mental Status Evaluation memorandum for her commander listed Borderline personality disorder and stated her depressive disorder in full remission "has nearly resolved with treatment and is not a significant factor in recommendation for separation." Accordingly, her chain of command initiated separation action against her. As confirmed by the OTSG advisory opinion, there is insufficient medical evidence to support an unfitting PTSD finding at the time of her discharge.
AF | PDBR | CY2013 | PD-2013-01819
The right knee condition, characterized as “chronic right knee pain” and “patella chondromalacia to the right knee,” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW SECNAVIST 1850.4E. The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation. The...
AF | PDBR | CY2010 | PD2010-00852
The CI was referred to the Physical Evaluation Board (PEB), found unfit for continued Naval service, and separated with a 10% disability using the Veterans Affairs Schedule for Ratings Disabilities (VASRD) and applicable Navy and Department of Defense regulations. The MEB Report of 20061030 reported the following: He first came to the attention of mental health in July 2005, as he was referred to psychiatry because of suicidal ideation. The Board also considered the Low Back Pain/Lumbar...
NAVY | BCNR | CY2001 | 01176-01
1171 (b) Board for Correction of Naval Record letter of 7 August 200 1 (1) BCNR File (2) Service record (3) Medical records (4) VA records Per your request for review of the subject response to reference documentation of the charges that led to non-judicial punishment was provided in this packet. ” As a result, the 1: 1 watch was discontinued, and the patient was returned to full duty with instruction to take the provider appointment. He also endorsed a history of at least two episodes of...
NAVY | DRB | 1999_Navy | ND99-01174
ND99-01174 Applicant’s Request The application for discharge review, received 990903, requested that the characterization of service on the discharge be changed to general/under honorable conditions. 980215: Mental Health Clinic, USS INDEPENDENCE: Pt, Pt's DivOff, Pt's LCPO and this provider met with pt in conference to clarify pt's short/long term goals. AXIS III: No known or reported medical conditions.