IN THE CASE OF:	

		BOARD DATE:	  25 November 2014

		DOCKET NUMBER:  AR20140005682 


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 her previously-denied request for correction of her records to show: 

a. she was medically discharged or medically retired;

   b.  as an alternative an upgrade of her discharge from general to honorable; and

   c.  restoration of her rank to private (PV2)/E-2 or private first class (PFC)/E-3 with back pay and allowances. 

2.  She states her promotion to E-2 was received late and as a result of the late promotion her subsequent promotion to E-3 was also late.  In reference to changing her discharge, she states that although she was not diagnosed with Post-Traumatic Stress Disorder (PTSD), it was the Army's responsibility to test, diagnose, and treat her, and that did not occur.  She opines if she had been diagnosed with PTSD she would have been medically discharged or retired.  She explains that she underwent a physical and a mental evaluation prior to discharge but the mental evaluation consisted of one question of whether or not she could distinguish right from wrong.  She states she has currently been diagnosed with PTSD and military sexual trauma by the Department of Veterans Affairs (VA).


3.  The applicant maintains that her military medical record shows she suffers from depression which is substantiated by two questionnaires she answered at sick call identifying the onset of depression after the assault which took place on 17 May 2003.  She explains that she was raped and it caused her to be depressed and eventually caused her to suffer from PTSD.  She offers that she coped with those problems by using drugs.  She maintains that based on the Army's failure to treat her depression her discharge was improper.  

4.  The applicant provides:

* Army Board for Correction of Military Records (ABCMR) Record of Proceedings
* Health record documents
* Personal/Military Data Sheet
* Internet articles pertaining to PTSD, sexual violence, sexual assault, and rape
* Applicant's "Suicidal" Letter 
* Internet DA Form 4187 (Personnel Action), dated 11 February 2003
* Enlisted Record Brief (ERB)
* VA Problem List

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 AR20120016292, on 16 May 2013.

2.  The applicant's new argument and health records were not previously considered by the Board. 

3.  The applicant enlisted in the Regular Army (RA) on 20 November 2002 for a period of 4 years in pay grade E-1.  She trained in and was awarded military occupational specialty 91W (Healthcare Specialist).  Her ERB shows she was advanced to E-2 on 20 May 2003 and to E-3 on 5 December 2003.

4.  On 18 May 2004, she underwent a mental status evaluation and was mentally cleared for any administrative actions deemed appropriate by the command. 

5.  On 19 May 2004, she was counseled by her first sergeant for a positive urinalysis for cocaine.  She initialed the counseling statement indicating that she agreed with the information provided and did not provide any remarks.

6.  On 22 June 2004, nonjudicial punishment was imposed against the applicant for using cocaine.  Her punishment consisted of reduction from pay grade E-3 to E-1 and extra duty.  She initialed the block indicating that matters in defense, mitigation, and/or extenuation would be presented in person.

7.  On 24 January 2005, she was notified of her pending separation action under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, for misconduct (commission of a serious offense).  The unit commander cited the applicant's wrongful use of cocaine as the basis for the discharge action.

8.  On 28 January 2005, she acknowledged receipt of the discharge action and indicated that statements in her own behalf would be submitted.  However, her record is void of any statements.

9.  On 15 March 2005, she was discharged in the rank/grade of PV1/E-1 under honorable conditions (general) for misconduct (commission of a serious offense) under the provisions of Army Regulation 635-200, paragraph 14-12c.  She completed a total of 2 years, 3 months, and 26 days of creditable active service.

10.  She provides:

   a.  A Personal/Military Data Sheet that shows her short-term goal was to graduate at the top of her class and her long-term goal was to retire from the Army. 

	b.  A health record that shows that on 22 May 2003 she was seen at the Troop Medical Clinic (TMC) and completed a "health assessment questionnaire." It shows she answered "NO" to the two questions concerning depression assessment of "During the past month, have you often been bothered by feeling down, depressed or hopeless?" and "During the past month, have you often been bothered by little interest or pleasure in doing things?"

   c.  A health record that shows that on 18 July 2003 she was seen at the TMC and completed a "health assessment questionnaire."  It shows she answered "Yes" to two questions concerning depression assessment of "During the past month, have you often been bothered by feeling down, depressed or hopeless?" and "During the past month, have you often been bothered by little interest or pleasure in doing things?"  She also completed a Depression Outpatient Documentation which she indicated she did not think that she would be better off dead or of hurting herself in anyway.  Additionally, she stated she felt alone, isolated, and was afraid of getting fat again.  She stated she eats when she is depressed.  This document does not indicate that she was referred to the psychology or psychiatry clinic for further treatment.

	d.  An undated "suicidal letter" addressed to her family.  In this letter she expressed her love for her mother and father.  

   e.  A VA Problem List which shows 18 active problems her VA provider is helping her manage.  These problems included PTSD, entered on 18 December 2008, and military sexual trauma, entered on 28 November 2007.  
   
   f.  A letter from a fellow Soldier stating that she met the applicant while attending basic training at Fort Leonard Wood, MO and they went on to complete advanced individual training at Fort Sam Houston, TX together.  In May 2003, the applicant confided in her that she was raped.  She said that over time the applicant became depressed, started gaining weight, and failed a physical fitness test for the first time.  She opines that all of those changes were due to the PTSD the applicant developed after the rape.

   g.  The applicant provided numerous internet articles pertaining to PTSD, sexual violence, sexual assault, and rape.  

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense.  This regulation states that abuse of illegal drugs is serious misconduct.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

12.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states that the mere presence of an impairment does not, in 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, or rank.  It states that disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in the service.  When a Soldier is being processed for separation for reasons other than physical disability, continued performance of assigned duty commensurate with his or her rank or grade until the Soldier is scheduled for separation or retirement indicates that a Soldier is fit.

14.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system. Paragraph 2-3 provided eligibility for promotion to PV2 and PFC.  It states, in pertinent part, that automatic promotion to PV2 requirement is 6 months time in service (TIS) and promotion to PFC requirements are 12 months TIS and 
4 months time in grade (TIG).

DISCUSSION AND CONCLUSIONS:

1.  The applicant argues, in effect, that her discharge should be upgraded and/or changed to a medical discharge because her misconduct was based on PTSD.  The applicant’s allegations concerning her rape are not being questioned.  However, there is no evidence and she has not provided sufficient evidence to show that she was diagnosed with PTSD, or that PTSD caused her misconduct, and/or that she sought counseling/medical treatment to correct her problems during her military service.  The fact that 9 years later she provides a VA Problem List which indicates the VA is helping her manage PTSD, entered on 
18 December 2008, and military sexual trauma, entered on 28 November 2007, is not sufficient as a basis to upgrade her discharge or to show she should have been medically separated.

2.  Further, it is noted that the applicant was a health care provider; therefore, she should have been familiar with the working of the hospital system. One cannot argue several years later that the Army failed to properly diagnose and treat her problem when they themselves failed to disclose their problems and/or symptoms to the appropriate authority.  Especially after being given several opportunities to voice her concerns either during her positive urinalysis counseling, Article 15 hearing, mental evaluation, and/or her separation counseling.

3.  The evidence of record confirms that all requirements of law and regulation were met and her rights were fully protected throughout the separation process.  The record further shows her discharge accurately reflects her overall record of service.  
4.  Her request to restore her rank to PV2/E-2 or PFC/E-3 with back pay and allowances based on her claim that each promotion was received late was considered.  The evidence of record shows she entered the RA on 20 November 2002 and in accordance with the regulation as cited in paragraph 14 of this document, promotion to PV2 requires 6 months TIS and promotion to PFC requires 12 months TIS and 4 months TIG.  Her record further shows she was promoted to E-2 on 20 May 2003 (6 months from the date she entered active duty) and to E-3 on 5 December 2003 (1 year and 16 days from the date she entered active duty).  However, it is unknown why her promotion to E-3 was delayed 16 days. 

5.  Nevertheless, there is no evidence in the available record and the applicant did not provide any to show she should have had an earlier effective date of promotion to E-2 and E-3 other than 20 May 2003 and 5 December 2003, respectively.  Therefore, in absence of documentation to support her claim, the presumption of regularity must be applied.  

6.  In view of the foregoing, there is no basis for granting her requested relief.

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 AR20120016292, dated 16 May 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)                                         AR20140005682



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ABCMR Record of Proceedings (cont)                                         AR20140005682



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