IN THE CASE OF:  

		BOARD DATE:  27 October 2015	  

		DOCKET NUMBER:  AR20140009459 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

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

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


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, an upgrade of her discharge under other than honorable conditions to a medical retirement.

2.  The applicant states her military records should be corrected to show her placement on the Permanent Disability Retired List with a 60-percent disability rating.

3.  The applicant provides:

* Department of Veterans Affairs (VA) documentation and medical records
* service medical records

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel makes no requests or statements on behalf of the applicant and provides no additional evidence.

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 enlisted in the Regular Army on 9 July 2003.  She was awarded military occupational specialty (MOS) 68K (Medical Laboratory Specialist) and MOS 31D (Criminal Investigation Command (CID) Special Agent).  She was promoted to sergeant on 1 February 2007.  She arrived in Iraq on 22 August 2008.

3.  On 1 July 2009, nonjudicial punishment (NJP) was imposed against her for violating a lawful general order (wrongfully creating sexually-explicit material and containing it on her electronic media storage device).  Her punishment included reduction to specialist, forfeiture of pay, extra duty, and an oral reprimand.

4.  She departed Iraq on 19 July 2009.

5.  She received a general officer memorandum of reprimand (GOMOR) for:

* disrespecting her superiors between 3-9 November 2009
* failing to attend a mandatory formation
* failing to inform her chain of command of out-of-office appointments
* failing to wear her uniform as directed
* wrongfully accessing CID investigative files which she had no official reason to access in violation of regulatory guidance

6.  On 9 November 2009, she underwent a psychiatric evaluation and was diagnosed with post-traumatic stress disorder (PTSD) triggered by her rape in 2005 by a sergeant in Germany and major depressive disorder, single episode, without psychosis, triggered by her NJP and her perceived inordinate punishments for it.

7.  On 17 February 2010, a medical evaluation board (MEB) diagnosed her with the following conditions:

* gastroesophageal reflux disease with incapacitating symptoms
* PTSD, severe with military impairment
* panic disorder without agoraphobia with severe military impairment

8.  The MEB determined the following conditions met retention standards:

* major depressive disorder, single episode, without psychosis
* migraine headaches without aura
* cervicalgia with minimal C-spine degenerative disc disease
* lumbago
* questionable Raynaud's phenomenon by history with negative connective tissue disease workup
* restless leg syndrome by sleep study, asymptomatic
* tinnitus, intermittent secondary to secretory otitis media with normal audiogram

9.  The MEB recommended her referral to a physical evaluation board (PEB).  She agreed with the board's findings and recommendations on 24 February 2010.

10.  On 8 April 2010, she was notified of her pending separation under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12b, for patterns of misconduct.  The unit commander cited the applicant's GOMOR and NJP.

11.  On 8 April 2010, she consulted with counsel and requested an administrative separation board.  She acknowledged that she might encounter substantial prejudice in civilian life if a discharge under other than honorable conditions were issued.  She also elected to submit a statement in her own behalf; however, her statement is not available.

12.  On 18 May 2010, she was notified that additional misconduct (i.e., she distributed Klonopin (clonazepam), a schedule IV controlled substance, to another Soldier without proper authority on divers occasions on or about 13 April 2010) would be considered by her administrative separation board.

13.  On 26 May 2010, the Commanding General, Headquarters, U.S. Army Armor Center and Fort Knox, reviewed the applicant's separation action and request for a PEB and directed that further processing be accomplished through the administrative separation procedures for a pattern of misconduct under the provisions of Army Regulation 635-200, paragraph 14-12b, in lieu of using the medical disability procedures under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

14.  On 30 September 2010, the administrative separation board convened.  The applicant appeared with counsel.  The board recommended her discharge under other than honorable conditions.

15.  She provided a memorandum from her trial defense counsel, dated 8 November 2010, who stated:

	a.  Three Department of the Army physicians, an Army chaplain, and an Army prosecuting attorney all strongly declare the applicant should be retained and her case should be referred to a PEB.

	b.  Multiple legal reasons require the applicant's retention on active duty and referral to a PEB rather than being discharged under other than honorable conditions.  Moral and public perception factors also strongly support her referral to a PEB.

	c.  She was injured on active duty and deserves treatment, not separation.  She has 7.5 years of active duty service and she was diagnosed with severe PTSD by five physicians and four clinical social workers.  She is receiving ongoing treatment for combat theater incurred PTSD.  She receives daily medication and bi-weekly counseling and she has a past history of suicidal ideations.  Separating her with a discharge under other than honorable conditions would deprive her of necessary medical treatment and would likely result in her untimely death in the opinion of her treating physician.

	d.  Separating her notwithstanding her diagnosed PTSD and ongoing treatment would be viewed very unfavorably by the public.

	e.  Army regulation requires that she be afforded a rehabilitative transfer to another unit prior to her separation.  That was not done.

	f.  She incurred all of her severe medical conditions resulting in PTSD and her other diagnoses while serving on active duty.  Her treating physicians testified at her board that her mental health conditions were the substantial contributing cause of the misconduct that led to her separation board.

	g.  Her PTSD was incurred on active duty from being raped by a noncommissioned officer in Germany in 2005, having a CID agent indecently expose himself to her while deployed in Iraq, having another agent lock and load his pistol and threaten her, and having her psychiatrist shot and killed.

	h.  The applicant has given her country 7.5 years of service, including 3 years as a CID agent conducting 200 investigations, and years of dedicated service as a Soldier.  The government witnesses at her board confirmed she was a great agent until she deployed.  She was broken psychologically in Iraq from seeing her psychiatrist killed moments before her appointment.  When she reported the indecent exposure of another agent she was relieved from service as a CID agent and has been sidelined with no meaningful opportunity for rehabilitation for the last year.

	i.  She was injured while serving our country.  Her PTSD and mental health conditions are extensively documented and have resulted in two hospitalizations.

16.  On 17 December 2010, the general court martial convening authority (GCMCA), the Commanding General, Headquarters, U.S. Army Accessions Command and Fort Knox, considered the applicant's case, the findings and recommendations of the administrative separation board, and the legal submissions packet warranting retention and request for a PEB submitted by her counsel.  He stated he reviewed the results of her medical examination which assessed whether the effects of PTSD constituted matters in extenuation relating to her separation.  He waived the rehabilitative transfer requirement in accordance with Army Regulation 635-200, paragraph 1-16d.  He approved the recommendation for discharge for patterns of misconduct under the provisions of Army Regulation 635-200, paragraph 14-12b, and directed her discharge under other than honorable conditions.

17.  On 25 January 2011, she was discharged accordingly.  She completed 7 years, 6 months, and 17 days of creditable active service.

18.  In September 2011, the Army Discharge Review Board denied her request for an honorable discharge.

19.  She provided VA documentation which shows she was granted service connection for the following conditions with an overall combined rating of 60 percent:

* adjustment disorder with depressed mood and panic disorder with agoraphobia (also claimed as anxiety disorder, insomnia and depression) (30 percent)
* tinnitus (10 percent)
* migraine headaches (10 percent)
* restless leg syndrome, left leg (10 percent)
* restless leg syndrome, right leg (10 percent)
* cervical degenerative disc bulge (claimed as bulging disc and cervical degenerative disc disease) (0 percent)
* thoracic spine scoliosis with chronic lumbar strain (0 percent)
* allergic rhinitis (claimed as sinusitis) (0 percent)
* gastroesophageal reflux with hiatal hernia (also claimed as dyspepsia) (0 percent)

20.  In the processing of this case, a staff advisory opinion was obtained from the Director, Healthcare Delivery, U.S. Army Medical Command, Office of the Surgeon General.  The opinion states:

	a.  The applicant enlisted in the Regular Army on 9 July 2003 and served on active duty for over 7 years.  She completed training and was awarded MOS 68K; she attended CID School in August 2006 and she was awarded MOS 31D.  She deployed to Iraq as a CID Special Agent from 22 August 2008 to 19 July 2009.

	b.  During her time in service, she was exposed to several traumatic events which directly threatened her life and personal safety, resulting in symptoms consistent with PTSD.  She reported she was raped by another Soldier when she was stationed in Germany.  In June 2009, she reported another Soldier held an M-9 pistol to her head and threatened to shoot her.

	c.  Perhaps the most significant trauma occurred during her deployment to Iraq.  She witnessed the events immediately following the shooting at the Combat Stress Clinic on Camp Liberty on 11 May 2009.  She was late to the clinic for an appointment and the shooting took place a few minutes before her arrival.  She was a patient of the psychiatrist who was shot and killed.  As a CID Special Agent, she offered to process the crime scene and observed the horrific aftermath of the shooting.  Additionally, she assisted in processing the bodies and diagramming of the crime scene.

	d.  Based upon a review of all available records, it appears that her PTSD was likely exacerbated by the administrative and disciplinary actions that followed.  She was reporting numerous symptoms consistent with PTSD, which could explain much of her behaviors that came to the attention of the command.  For example, the avoidant behaviors typical of Soldiers with PTSD often lead to alienation from their unit and they often display decreased work performance.  Previously "stellar" Soldiers are often viewed as performing below standard.  Additionally, the mood irritability and agitation impacts the Soldier's interaction with command.  The symptoms she displayed may have been a deciding factor determining the reason and characterization for her separation from service.  Furthermore, according to the available records, her treating providers testified that the PTSD was the "substantial contributing cause" of the misconduct that led to her separation board.

	e.  Despite clear documentation and support for a diagnosis of PTSD, the VA awarded her 30-percent service connection for adjustment disorder with depressed mood and panic disorder with agoraphobia.

	f.  A review of her military records indicates there is sufficient evidence to conclude that she qualified for a PTSD diagnosis and warranted referral into the Integrated Disability Evaluation System at the time of her discharge.

21.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  She did not respond.

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

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense (military or civilian offense), and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

	b.  Paragraph 1-33a states disposition through medical channels takes precedence over administrative separation processing.

	c.  Paragraph 1-33b(1) states if the MEB findings indicate that referral of the case to a PEB is warranted for disability processing under the provisions of Army Regulation 635-40, the GCMCA may direct, in writing, that the Soldier be processed through the physical disability system when action under the UCMJ has not been initiated and the Soldier's medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative elimination.

23.  Army Regulation 635-40, paragraph 4-3, states an enlisted Soldier may not be referred for or continue physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.  If the case comes within the limitations above, the commander exercising general court-martial jurisdiction over the Soldier may abate the administrative separation.  This authority may not be delegated.  A copy of the decision, signed by the GCMCA, must be forwarded with the disability case file to the PEB.  A case file may be referred in this way if the GCMCA finds:

	a.  the disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions or

	b.  other circumstances warrant disability processing instead of alternate administrative separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions and supporting documentation were carefully considered.

2.  In July 2009, she accepted NJP for violating a lawful general order by wrongfully creating sexually-explicit material and containing it on her electronic media storage device.

3.  She was issued a GOMOR for disrespecting her superiors, failing to attend a mandatory formation, failing to inform her chain of command of out-of-office appointments, failing to wear her uniform as directed, and wrongfully accessing CID investigative files which she had no official reason to access in violation of regulatory guidance between 3 and 9 November 2009.

4.  On 9 November 2009, she underwent a psychiatric evaluation and was diagnosed with PTSD.  An MEB later diagnosed her with gastroesophageal reflux disease with incapacitating symptoms, severe PTSD with military impairment, and panic disorder without agoraphobia with severe military impairment on 17 February 2010.  The MEB recommended her referral to a PEB.

5.  She was notified of her pending separation for patterns of misconduct on 8 April 2010.  The unit commander cited her GOMOR and NJP.  She was later notified that her additional misconduct involving distribution of a controlled substance to another Soldier without proper authority on divers occasions would be considered by her administrative separation board.

6.  The regulations afford a great deal of discretion for GCMCAs confronted with a situation in which a Soldier is being processed simultaneously for administrative separation and for physical disability evaluation.  Army Regulation 635-40 provides that where an enlisted Soldier is undergoing administrative separation procedures which authorize a discharge under other than honorable conditions, the command may not initiate or continue that Soldier's disability processing.  However, the GCMCA in such circumstances may abate the separation proceeding if the GCMCA finds the disability was a substantial contributing cause to the misconduct or other circumstances warrant disability processing.

7.  The Army's enlisted separations regulation reverses priorities somewhat when it advises commanders that medical channels take precedence over administrative separation processing.  But later in the same section of the regulation, Army Regulation 635-200 parallels the provisions of Army Regulation 635-40 when it states that, when confronted with a situation in which a Soldier is facing administrative separation but an MEB has recommended PEB referral, a GCMCA may direct in writing that a Soldier be processed through the physical disability system if the Soldier's medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative elimination.  Thus, these regulations do not mandate that a GCMCA abate administrative separation proceedings even for a Soldier whose misconduct may have been caused by a disability.

8.  Notwithstanding the favorable advisory opinion from the U.S. Army Medical Command indicating the applicant was a candidate for processing through the Disability Evaluation System, the GCMCA reviewed the results of her medical examination which assessed whether the effects of her PTSD constituted matters in extenuation relating to her separation prior to her discharge.  He was presented with the decision of whether to continue processing her in accordance with Army Regulation 635-200, chapter 14, which authorized her discharge under other than honorable conditions or to grant her request for referral to a PEB.  He directed her discharge under other than honorable conditions for serious misconduct rather than for physical disability evaluation.  The GCMCA acted within his authority in this case and did not violate either of the cited regulations.

9.  The applicant's diagnosis of PTSD and history of military sexual trauma are acknowledged.  However, her record of service included NJP, a GOMOR, and serious misconduct.  There is no evidence indicating the traumatic events she experienced led to the serious misconduct that ultimately resulted in her administrative discharge.

10.  Her administrative separation for misconduct was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized her rights.  In accordance with Army Regulation 635-200, her pending administrative separation for misconduct discontinued further physical disability processing.  She is not entitled to a medical discharge.

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 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)                                         AR20140009459



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ABCMR Record of Proceedings (cont)                                         AR20140009459



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