IN THE CASE OF:  	  

		BOARD DATE:  12 November 2014	  

		DOCKET NUMBER:  AR20130021583


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 that –

* her dismissal be vacated
* her Medical Evaluation Board (MEB) diagnosis of depression be changed to a diagnosis of Post-Traumatic Stress Disorder (PTSD)
* she be afforded a military disability rating and service connection for PTSD

2.  The applicant states, in effect –

* an MEB/Physical Evaluation Board (PEB) was in process, but due to her administrative discharge it was not completed
* she disagree with the MEB/PEB's indication that her depression existed prior to service 
* her diagnosis of depression is in fact PTSD, related to sexual trauma suffered during basic training 
* she appealed her MEB/PEB findings, but she was unable to complete the action due to her discharge processing
* the Department of Veterans Affairs (VA) has granted her total (100% rating) disability for PTSD
* disability ratings should not differ from one agency to another; therefore, she should receive a military disability rating for PTSD
* she does not understand why it took over 6 years to discharge her 
* the drug charges that led to her court-martial were false

3.  The applicant provides copies of –

* two DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 3947 (MEB Proceedings) 
* MEB appeal
* MEB appeal denial letter
* DA Form 199 (PEB Proceedings)
* her declination for transfer to the Retired Reserve
* Physical Disability Information Report
* Physical Disability Board of Review application and letter declining review
* 2012 VA Initial PTSD Disability Benefits Questionnaire
* 2012 VA disability rating decision

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 service medical and dental records are on permanent loan to the VA and are not available for review by the Board.  

3.  The applicant served in the Regular Army (RA) in an enlisted status from 31 March 1976 through 15 February 1983 and she was honorably discharged, in the rank of staff sergeant.  

4.  On 28 July 1983, she was commissioned a second lieutenant in the Washington Army National Guard (ARNG) and served in an active status until 1 July 1987 when she voluntarily transferred to the Inactive National Guard.  She returned to an active status in the ARNG in 1988 and transferred to the U.S. Army Reserve (USAR) on 2 January 1999.

5.  On 14 March 1998, the VA denied the applicant's request for service connection for PTSD.  The specifics of this application and denial are not in the available evidence.
6.  On 27 January 2003, the applicant was called to active duty as a Transportation Officer in support of Operation Enduring Freedom and was released from active duty on 26 January 2004.  A copy of the DD Form 214 for this period was provided by the applicant; however, her official record does not contain a copy of this form.  The form states the applicant refused to sign the form.

7.  On 27 January 2004, the applicant was ordered to active duty for medical evaluation and processing.

8.  An MEB, dated 23 November 2004, shows the applicant was found to be suffering from two unfitting conditions:  a chronic left foot condition and fibromyalgia.  She was also suffering from three conditions that met retention standards:  chronic cervical and lumbar pain, bilateral knee pain, and major depression (her depression was considered to have existed prior to her last period of active service without aggravation).  It was recommended that she be referred to a PEB.  

9.  The applicant marked the block "does not desire to remain on active duty" and indicated she disagreed with the MEB's findings and recommendations.  In her statement she disagreed with the date of her first major depression episode, contending it occurred in 1997 and it had reoccurred since that time.  She indicated her allergies were more than just seasonal allergies and should have been rated for disability purposes.  She contend her knee problems were more severe in that she experiences persistent pain on taking stairs and running, that her knees occasionally buckle, and she has a popping in the knees.  She also stated her chronic cervical and lumbar pain was more than just pain.  She had a limitation of her range of motion in her neck and shoulders.  Further, the surgeries to her feet had not relieved her problems and she cannot stand for more than 30 minutes.

10.  On 15 December 2004, the MEB reviewed her appeal.  It is noted that the appeal resulted in approval of adding several items to her narrative history but denied increasing the severity of her two unfitting conditions or adding any additional conditions as unfitting conditions.  The reviewing official noted that her first episode treatment for depression occurred in the late 1980s, after she was abandoned by her husband.

11.  On 27 January 2005, a PEB afforded the applicant a 10 percent disability rating for a post-surgical chronic left foot condition and a 10 percent rating for fibromyalgia.  It was noted that both of these conditions preexisted her last or current mobilization and that the conditions were not permanently aggravated by her service.  The applicant was advised that, as her disability rating was less than 30 percent and that she had 20 qualifying years of service for Reserve Retirement, she could elect to accept disability severance pay (thereby forfeiting her Reserve retirement) or elect to be placed in an inactive Reserve status and receive retired pay at age 60.  The applicant stated that although she did not concur with the PEB findings she was not appealing the decision and waived a formal hearing of her case.  

12.  On 9 February 2005, the applicant formally declined to be transferred to the Retired Reserve, electing to be discharged with entitlement to disability severance pay.

13.  The applicant tested positive on a routine random urinalysis for cocaine use between 2 January and 1 February 2005.  Her medical separation was placed on hold pending resolution of the investigation and court-martial charges of illegal drug use.

14.  On 1 December 2005, a general court-martial found the applicant guilty of illegal use of cocaine between 2 January and 1 February 2005.  Her sentence was dismissal from the service.  

15.  The applicant was reported absent without leave (AWOL) from 3 March through 15 September 2006 (197 days) and 17 September through 13 December 2006 (88 days).  The record does not contain any documentation of what if any disciplinary action was taken related to these periods of AWOL. 

16.  On 21 December 2006, the general court-martial convening authority approved the court-martial findings and sentence, and directed the sentence not be executed until completion of her appellate review.  

17.  On 26 November 2008, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence.  The applicant appears to have appealed this decision.

18.  The court-martial conviction became final on 3 September 2009 when the U.S. Court of Appeals for the Armed Forces declined to review her case.

19.  On 20 January 2010, by Order of the Secretary of the Army, the applicant was dismissed (emphasis added) from the USAR. 

20.  The applicant's DD Form 214, issued on 20 January 2010, provides the following in –

* block 9 (Command to Which Transferred), N/A
* block 12a (Date Entered AD This Period), 27 January 2003
* block 12b (Separation Date This Period), 20 January 2010
* block 18 (Remarks), the statement "Subject to Active Duty Recall, Muster Duty, and/or Annual Screening" 
* block 23 (Type of Separation), "Dismissed Or Discharged As Appropriate"
* block 24 (Character of Service), Under Other Than Honorable Conditions
* block 24 (Separation Authority), Army Regulation 600-8-24, paragraph 
5-17
* block 28 (Narrative Reason for Separation), Court-Martial 

21.  The applicant was afforded a VA evaluation on 4 June 2012.  The PTSD evaluation report provides the following:

   a.  Treatment with a period of hospitalization in 1988 for suicidal thoughts, depression, anxiety, and illegal drug use (cocaine).

   b.  A treatment note, dated 5 September 1997, indicated the claimant sought treatment for "stress related to a hostile work environment."  She was diagnosed and treated for depression at that time.

   c.  a VA Compensation and Pension Exam Report, dated 7 November 1997, diagnosed the applicant with major depression and cocaine abuse in remission.  There is indication of sexual harassment incurred during her military service written into the report as "coerced into sleeping with a sergeant during basic training" and "forced to participate in wet T-shirt contests." 

   d.  A treatment note, dated 15 October 2010, indicate the applicant reported several years of sexual harassment following a sexual assault while at the military academy (i.e., Washington Military Academy, Officer Candidate School). 

   e.  The attending physician rendered the diagnoses of PTSD, a depressive disorder, and a psychotic disorder.  He stated:  

"It is not possible to differentiate what portion of each symptom is attributable to each diagnosis because symptoms including irritability, poor concentration, difficulties with memory, difficulties with judgment, emotional lability, sleep impairment, and avoidance of activities she used to find important/enjoyable can all be attributed to PTSD, depressive disorder, and psychotic disorder.  It is not possible to determine without resorting to conjecture whether the claimant's psychotic symptoms (e.g., perception of flying around her room, hearing the doors open and close) are related to her depression or are a separate and distinct feature.  Additionally it would be impossible to determine without resorting to conjecture whether her feelings of persecution are related to PTSD or are exacerbated by psychosis."

   f.  The PTSD stressors reported were that she was sexually assaulted three times during her military career.  She reported the first sexual assault occurred during basic training in 1976.  The second assault occurred in 1981 or 1982, and the third assault occurred in 1990.  She stated she did not report the first two assaults but reported the third assault.  After she reported the third assault she was sexually harassed and discriminated against.

   g.  The attending physician stated the stressor was not related to a fear of hostile military/terrorist activity because her PTSD is related to military sexual trauma.  It was appropriate to afford her a diagnosis of PTSD based on this evaluation.

22.  On 31 August 2012, based on the findings of the VA examination, the VA granted the applicant a total disability evaluation for PTSD.  The rating decision did not address any of the medical conditions that led to her MEB except for her depression and that only tangentially as noted in paragraph 21 above.

23.  A review by the Crime Records Center for the U.S. Army Criminal Investigation Command (CID) failed to locate any record or any report of sexual assault or harassment to CID.  

24.  The term "service connection" is a VA term, not a military one.  It is used to describe a disabled resulting from an injury or illness that was incurred in or was aggravated by active military service for which VA benefits are awarded.  To be eligible for VA disability compensation, the veteran must have been separated or discharged under conditions other than dishonorable.

25.  Title 10, U.S. Code (10 USC), chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

26.  10 USC, section 639 states when an action is initiated against a commissioned officer with a view to trying such officer by court-martial, the Secretary of the Army may delay that officer's retirement (without prejudice) until the action is completed.
27.  10 USC, section 1552, precludes any action by the ABCMR which would disturb the finality of a court-martial conviction.

28.  Title 38, USC, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered physically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

29.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth the policies and procedures for the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  

     a.  Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and they can no longer continue to reasonably perform because of physical disability incurred or aggravated in service.  The mere presence of an 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 his or her office, grade, rank, or rating.  

   b.  Paragraph 4-1 states in the case of a Soldier charged with an offense under the UCMJ or who is under investigation for an offense chargeable under the UCMJ that could result in dismissal or punitive discharge, may not be referred for, or continue, disability processing unless –

* the investigation ends without charges
* the officer exercising proper court-martial jurisdiction dismisses the charges or
* the officer exercising proper court-martial jurisdiction refers the charge for trial to a court-martial that cannot adjudge a punitive discharge

   c.  Paragraph 4-4 (Commissioned or warrant officers who may be separated under other than honorable conditions) states:
      
      (1)  A commissioned or warrant officer will not be referred for disability processing instead of elimination action that could result in separation under other than honorable conditions.  Officers in this category who are believed to be unfit because of physical disability will be processed simultaneously for administrative separation and physical disability evaluation.

      (2)  The entire file, including both courses of action, will be referred to the Office of the Secretary of the Army (OSA) for review.  The OSA will decide the proper disposition of the case.

30.  Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes policies and procedures governing the transfer and discharge of Army officers.  

	a.  Chapter 5 prescribes disposition and procedures concerning miscellaneous types of separations whereby an officer may be dismissed, released, separated, and discharged from active duty.  

	b.  Paragraph 5-17 (Rules for processing dismissal of an officer due to general courts-martial proceedings), states an officer who has been convicted and sentenced to dismissal or dishonorable discharge will not be discharged prior to completion of appellate review without prior approval of Commanding General, U.S. Army Human Resources Command (HRC).  A Reserve Component officer serving in an active duty status may be retained on active duty, processed for excess leave, or released from active duty.  HRC will make the final determination regarding retention or separation.

	c.  A commissioned officer under investigation for an offense chargeable under the UCMJ that could result in dismissal or punitive discharge may not be referred for or continue disability processing unless –

       (1)  The investigation ends without charges.

       (2)  The commander exercising proper court-martial jurisdiction dismisses the charges; or

       (3)  The commander exercising proper court-martial jurisdiction refers the charge for trial to a court-martial that cannot adjudge a punitive discharge.

	d.  A Reserve component officer convicted and sentenced to dismissal as a result of general court-martial proceedings may be released from active duty pending completion of the appellate review or placed on excess leave in lieu of REFRAD.

31.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)), states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  It will decide cases on the evidence of record and it is not an investigative body.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was dismissed from the service by reason of a court-martial conviction, not as a result of an administrative separation as is referred to in the applicant's statements, the VA records, or as implied by the verbiage on her 
DD Form 214.  

2.  Because she was dismissed and not administratively separated, the procedures, policies, and considerations for administrative separations processing do not apply.  Therefore, any reference or argument relating to processing of an administrative separation or discharge has no bearing on this case.

3.  Following the applicant's MEB/PEB in 2005, she requested discharge with disability severance pay in lieu of transfer to the Retired Reserve.  However, prior to her being discharged, she tested positive for illegal drug use.  Because of the investigation, and subsequent court-martial, her disability separation processing was properly suspended.  

4.  The applicant has not provided and the record does not contain any evidence that her 2005 urinalysis was flawed, improper or that she was not afforded all due process in relationship to her court-martial on this charge.  This is an issue that should have been brought up in the court-martial and appellate process and conclusively adjudicated.  Further, this is the second time illegal use of cocaine is documented in her record.  

5.  The applicant's final DD Form 214 covers a period of service for which she had previously received a DD Form 214.  She was issued a DD Form 214 on 26 January 2014 and there is no evidence this DD Form 214 was revoked.  Therefore, her last period of service should have been shown to have commenced on 27 January 2004, not 27 January 2003.  However, it is the policy of this Board not to disadvantage an applicant or make a situation any worse for having applied for a correction to their record.  Therefore, while it is appropriate to advise the applicant of the errors on her DD Form 214, under the current policy no correction of the errors on her DD Form 214 should be undertaken at this time.

6.  Because she was sentenced to dismissal by a general court-martial, both her disability and dismissal files were properly forwarded to the OSA for a determination of the appropriate separation processing.  It was the OSA that determined it was most appropriate to concur with the court-martial sentence of dismissal as opposed to discharging her with disability severance pay.

7.  The reason the applicant's dismissal took as long as it did is not fully explained but appears to have been a combination of factors -- the investigation on the drug charge and subsequent court-martial, her time lost due to two periods of AWOL (totaling 285 days), the delays incurred by her appellate reviews, and the time involved in the OSA review.  Except for her AWOL, these delays were all to afford her proper review and protect her due process rights.

8.  The limited service medical records referenced by the VA show treatment for depression as far back as 1988.  Although the applicant alleges she received a diagnosis of PTSD in 1988, she has not provided and the record does not contain any documentation of a diagnosis of PTSD prior to her dismissal to include the November 1997 VA denial of her application for service connection for PTSD.  The earliest available record of a diagnosis or treatment for PTSD was made by the VA in 2010.  

9.  The service medical records, referenced in the 2012 VA rating exam, indicate the applicant was treated for depression including a hospitalization for suicidal ideation in 1988.  Since she does not appear to have been in an active status at that time, the MEB determination that her depressive disorder preexisted her subsequent periods of active duty is valid.  

10.  The VA award of disability benefits for PTSD is based on its determination that the applicant was a victim of military sexual trauma.  This determination appears to have been based on the applicant's personal statements in her 2012 VA evaluations wherein she contended she was sexually assaulted on three occasions and was sexually harassed and discriminated against following her reporting of the third assault.  

11.  Her entire service medical records are not available.  It cannot be determined what kind of physical profile limitations she was given or if she was unable to perform her duties as a Transportation Officer because of either depression or PTSD.  Her experience is unfortunate; however, unless those condition prevented her from performing her duties they were appropriately determined to be not unfitting and not rated.

12.  The applicant has not provided and the record does not contain sufficient evidence to determine what symptoms were in existence at the time of her military diagnosis and treatment of depression and what physical profile limitations those symptoms required, if any.  Her neuropsychiatric condition clearly worsened at some point as documented by the fact that the VA diagnosed her as suffering from PTSD, depressive disorder, and psychotic disorder and granted her a 100 percent disability rating.  

13.  The subsequent award of the diagnoses of PTSD and a psychotic disorder in addition to a depressive disorder does not invalidate the military diagnosis of a depressive disorder; therefore, there is insufficient evidence to grant the applicant a change in her military diagnosis from a depressive disorder to PTSD.

14.  In the absence of evidence that at the time of her dismissal or of the behavior that led to the court-martial that the applicant was so impaired by mental, emotional, psychological or psychiatric problems as to be unable to tell right from wrong and adhere to the right (again, contentions that should have been raised and conclusively adjudicated in the appellate process) the current diagnosis does not demonstrate an injustice in her dismissal.

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)                                         AR20140017987



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ABCMR Record of Proceedings (cont)                                         AR20130021583



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