IN THE CASE OF:    

		BOARD DATE:  30 April 2015	  

		DOCKET NUMBER:  AR20140012864 


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 earlier request for:

* reinstatement in the Army
* back pay and promotions missed due to the injustice
* reinstatement of her Montgomery GI Bill (MGIB)
* if reinstated, allowance to buy leave back that she was forced to sell
* compensation in the amount of $566.71 for monies paid out-of-pocket for tuition
* removal of the Article 15, dated 4 August 2011, and reinstatement of her rank

2.  The applicant states:

	a.  The Army Board for Correction of Military Records (ABCMR) did not address the issue that a general court-martial convening authority (GCMCA) is the only authority who can approve a separation under Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17a(9), when the Soldier is in an imminent danger pay area (she was assigned in Afghanistan).  The person who authorized her separation was her brigade commander.  This is a violation of due process for the Army not to follow its own regulations and procedures.

	b.  The ABCMR Record of Proceedings states, "Commanders will ensure that a Soldier is not coerced into waiving his/her right to a hearing before an administrative separation board."  Amongst other discrepancies that Staff Sergeant (SSG) M____ A____ pointed out, his sworn statement is evidence that she was coerced to sign away her right to consideration by a board by Sergeant First Class (SFC) H____.

	c.  She first went to Behavioral Health Services on 18 September 2011.  Her chief complaint was insomnia after a miscarriage.  At this single appointment, the health care provider diagnosed her with an adjustment disorder, but did not inform her or see her long enough to diagnose her with a condition that is ongoing.

	d.  The Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), clearly notes the symptoms of an adjustment disorder do not represent bereavement.  She was seeing Behavioral Health Services due to insomnia post-miscarriage.  There clearly should have been consideration in her notes that it was due to the loss.  She voluntarily turned her weapon over for a 24-hour period upon her immediate return to Mazar-i-Sharif after being in transit for several days and being exhausted.  She requested a simple sleeping medication.  She was prescribed trazodone (an antidepressant) that day.  She took one pill the first night and immediately felt better so she got her weapon back the next day and continued work, while taking a single trazodone pill nightly.

	e.  Her next visit was 11 days later on 29 September 2011 for a smoking cessation screening.  She was prescribed Wellbutrin (bupropion, an antidepressant) to assist her quitting efforts.  In this screening, it is clearly noted that she was not suffering from depression or taking trazodone for depression or an adjustment disorder.  The notes state she was taking trazodone for sleep purposes only.

	f.  Her next visit was on 1 October 2011 for a follow-up evaluation.  Again, the notes indicate an adjustment disorder under the problems section.  Her chief complaint is noted as insomnia and not depression or feelings of hopelessness.

	g.  Contrary to the comments from her command, Behavioral Health Services, and the psychiatrist, no further appointments were executed between October and mid-December, with the exception of a quick one-time refill of trazodone.  In December 2011, she went to the troop medical clinic after her medication had been stolen from her living area.  There was a second appointment in December after the suicidal thought to refill her medication and have her screened by Behavioral Health Services.  It required that her medication be dispensed to her by someone in the unit daily, but this did not happen.  Her medication was dispensed to her very sporadically.  Antidepressant drugs can cause serious problems when not taken properly.  The administration of trazodone and Wellbutrin is not recorded on her list of prescribed medications.

3.  She further states:

	a.  The initial review of her case by the ABCMR is incomplete.  A great deal of emphasis was placed on her appeal of the Article 15 when that was a minute part of the appeal.  The major issue is the chapter action itself.  Several concerns were barely addressed, if at all.  Her primary concern is the lack of justification for the chapter action as well as violation of her rights as a Soldier by her chain of command.

	b.  The very first meeting she had with the psychiatrist notes that she was simply coming in for sleep medication, but the psychiatrist diagnosed her with an adjustment disorder.  This is highly concerning.  Diagnosing someone with a so-called disorder should not be something taken so lightly.

	c.  Her prescription list is incomplete for the time she was serving in Afghanistan.  There is no record of anything she was prescribed down range.

	d.  Office of the Surgeon General (OTSG), Medical Command (MEDCOM), Policy Memorandum 11-010 refers to a Soldier who was currently or has ever been deployed, as in her case, that the Soldier manifests a long-standing, chronic pattern of difficulty adjusting (as characterized by at least two separate instances of maladaptive reaction to identifiable stressful life event of 6 months or longer).  Her issues did not last 6 months or longer as required by policy.  At best, it could be argued that her issues lasted from the end of September to mid-December.  Further, the first incident should never have been listed as an adjustment disorder.  She had a miscarriage and was having problems sleeping.  She requested sleeping medication and it was noted that she had an adjustment disorder at the very first encounter she had with the psychiatrist.

	e.  The memorandum also states the Soldier is not amenable to behavioral health treatment nor will respond to command efforts at rehabilitation (e.g., transfer, disciplinary action, or reclassification).  These efforts were not tried with her.  After she was prescribed trazodone in September, the only encounters she had with Behavioral Heath Services were to refill her trazodone prescription and attend group smoking cessation classes.  The very act of her attending these classes should be an indicator that she was not depressed and was making a conscious effort to improve her health and well-being.  That is not characteristic of a depressed person.  Also, she requested transfer to a sister battalion on numerous occasions through her chain of command and was denied every effort.  They did not attempt rehabilitation, transfer, or reclassification.

	f.  The memorandum also cites a specific statement that the disorder is of sufficient severity to interfere with the Soldier's ability to function in the military (to be submitted to the OTSG).  It is clearly stated in the medical review that she was declared fit for duty.  She never once was taken off an aircraft or stopped from doing her job.  Her job put the lives of everyone flying in the aircrafts she worked on at risk.  If they believed she was unable to do her job, then they were endangering the lives of others.  The sworn statements from her squad leader and team leader state she was easy to work with and always eager to work.

	g.  Further, the memorandum states personality disorder recommendations must include official command counseling statements and/or other personnel records reflecting that the service member was formally counseled concerning his/her deficiencies and given a reasonable opportunity to overcome or correct these deficiencies (must be submitted to the OTSG).  These statements do not exist.  She was never counseled on her deficiencies.  She was never told by her chain of command that she could face chapter action for talking to Behavioral Health Services about her miscarriage or any other issue for that matter, nor was she formally counseled after threatening to commit suicide in December, other than for her medication being taken.

	h.  She was counseled on being placed on suicide watch, but was not counseled for the deficiencies that led to such, or risking the possibility of chapter action if conduct continued.  It should be obvious that she was not given a reasonable time to overcome what they saw as deficiencies.  The memorandum states at least one formal counseling session is required before separation proceedings may be initiated.  The requirement for at least one formal counseling session is also prescribed in Army Regulation 635-200.

4.  The applicant provides:

* two sworn statements
* medical records (mental health)
* medication list
* excerpts from Army Regulation 635-200
* OTSG/MEDCOM Policy Memorandum 11-010

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 AR20120021578 on 15 August 2013.

2.  The applicant provided two sworn statements from SSGs assigned to Company B, 615th Aviation Support Battalion, 1st Air Cavalry Brigade, 1st Cavalry Division.  These sworn statements are new evidence that will be considered by the Board.

3.  Having prior service in the Illinois Army National Guard, the applicant enlisted in the Regular Army on 3 December 2009 for 6 years and she trained as an aircraft power train repairer.

4.  Her DA Form 2366 (MGIB Act of 1984) states, "I must complete 36 months of active duty service (24 months if my enlistment is for less than 36 months) before I am entitled to the current rate of monthly benefits.  The MGIB provides benefits for a period of 36 months."

5.  She arrived in Afghanistan on 13 June 2011.

6.  A DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice), dated 4 August 2011, shows nonjudicial punishment was imposed against her for disobeying a lawful command (to limit her contact with a specialist to strictly professional issues and refrain from behaving in any unprofessional way towards the specialist either in person or without her knowledge) on 26 July 2011 in Afghanistan.  She was reduced from specialist/
E-4 to private first class/E-3.  She did not demand trial by court-martial.

7.  On 24 December 2011, she underwent a mental status evaluation and the psychologist diagnosed her with an adjustment disorder with depressed mood.  She was cleared for administrative separation under the provisions of Army Regulation 635-200, paragraph 5-17.  The provider stated the applicant was at an elevated risk for harm to herself and should be monitored closely during administrative separation.

8.  On 18 January 2012, the applicant's unit commander initiated action to separate her under the provisions of Army Regulation 635-200, paragraph 5-17, for other designated physical or mental conditions.  The unit commander cited:

	a.  She was diagnosed with an adjustment disorder.

	b.  The psychologist found she had developed a depressed mood with suicidal ideations, self-injury, mood liability, and poor coping in response to minor setback and stressors which resulted in significant impairment in social and occupational functioning.

	c.  The psychologist further stated that a course of treatment had been attempted with her over the past 3 months with poor compliance and worsening prognosis.  She was listed as unlikely to respond to further treatment/
rehabilitative efforts.

9.  On 20 January 2012, she consulted with counsel and was advised of her rights.  She elected to submit a statement in her behalf; however, this statement is not available for review.  Her election of rights memorandum shows the following entries were crossed out:

	a.  I (request) (waive) consideration of my case by an administrative separation board.

	b.  I have been advised of my right to submit a conditional waiver of my right to have my case considered by an administrative separation board.

	c.  I (request) (waive) personal appearance before an administrative separation board.

	d.  I understand that my willful failure to appear before the administrative separation board by absenting myself without leave will constitute a waiver of my rights to personal appearance before the board.

	e.  I understand that I may, until the date the separation authority orders, directs, or approves my separation, withdraw this waiver and request that an administrative separation board hear my case.

10.  On 31 January 2012, the separation authority approved the recommendation for separation and directed that the applicant be furnished an honorable discharge.

11.  She departed Afghanistan on 10 February 2012.

12.  On 29 February 2012, she was honorably discharged in the rank of private first class under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of a physical condition, not a disability.  She completed 2 years, 2 months, and 28 days of creditable active service during this period and a total of 6 years, 3 months, and 9 days of active and Reserve service.

13.  Item 16 (Days Accrued Leave Paid) of her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the entry "44.5."

14.  She provided a sworn statement from SSG M____ A____, dated 10 January 2014, who states:

	a.  He was the applicant's squad leader during the 2011/2012 deployment to Afghanistan.

	b.  He witnessed several issues with her case and prior to her case that should have been cause for her to be transferred to another company prior to the events that led to her chapter action.

	c.  When he first arrived in August 2011, the applicant was in the process of a company-grade Article 15.  She had been transferred back to the company after working as the battalion commander's enlisted aide.  She had expressed concern about coming back to the company because she had wanted to leave due to being sexually harassed.  She would not tell who was causing this grief in the company, so her request to transfer was denied.

	d.  As far as her work performance, she was a solid, consistent worker.  Her meticulous work ethic assisted their squad in committing zero errors during her time down range.  She showed up for work on time, did not complain, and got along with her peers.  She also used her college experience to tutor other students in the company.

	e.  In December 2011, he was required to dispense her sleeping medication several days after the initial incident that ultimately led to her discharge.  There were several nights she did not receive her dosage because they were too busy in the shop to worry about it until they got on the bus on the way to their living area.  The applicant tried to fix the issue by speaking with the troop medical clinic who had agreed to hold her medication and dispense it to her nightly.  The major refused to allow this to happen.  Between 14 December 2011 and 21 December 2011, she received her medication 4 out of 8 nights according to the log.  The major said an E-6 or above would issue her medication.  She slept next to an SFC who was also in her company in her tent.  The applicant asked SFC D____ if she could hold her medication and issue it to her at night from the tent.  SFC D____ said she would absolutely do that for her and she would talk to SFC H____ and the commander.  The applicant was given a negative counseling statement by SFC H____ for going outside her chain of command.

	f.  On 23 December 2011, he and the applicant were called into the commander's office and she was informed she would undergo a medical evaluation for discharge.  She tried to explain the medication imbalance issue to the commander and that she was not depressed but was having a lot of problems with the drug they prescribed for her.  The commander brushed it off, had her sign documentation, and dismissed them.

	g.  The mental health evaluation was scheduled for 24 December 2011.  The applicant requested a different doctor (female psychiatrist), but she was sent to a male doctor and was denied a second opinion from another health professional.

	h.  He personally sat in on the telephone interviews with the applicant's counsel during her chapter action process.  Counsel seemed very indifferent and barely paid attention to the applicant's questions and needs.  One red flag was the document that waived the applicant's right to an appeal board.  The applicant told counsel she had over 6 years in service and he disagreed.  She told him she had documentation to prove her time in service, but he still sent the document to sign with the option for an appeal board crossed out.  The applicant was called into SFC H____'s office to sign the documents.  When the applicant tried to refuse signing the documents, she received pressure from SFC H____ to sign them and she gave in for fear of further repercussion.

	i.  At this point, he advised the applicant to contact the Inspector General and her Congressman.  She wrote to both and later faced reprisal.

	j.  After the applicant's meetings with counsel, counsel would often call him into his office and inquire about the applicant's job performance.  He told counsel she was doing exceptionally well at work and getting along with the other Soldiers in the squad.  He explained to counsel that her ability to work was never affected and she always had a smile on her face.  When her medication was stabilized, she was the same person they knew and loved to work with.

	k.  He was instructed to stay out of the issue regarding the applicant's chapter action and simply act as her squad leader and escort her to her health appointments.  His opinion was not allowed, nor was any other Soldier's in the section.  The applicant requested to see the battalion commander under the open-door policy, but he refused.  She also requested to see the brigade commander under the open-door policy, who also refused even though they both claim to have an open-door policy.  She requested a second mental health evaluation and was denied.  She requested a different attorney and was denied.  She even requested transfer to another battalion and was denied.  She first asked for a transfer during her Article 15 proceedings in August 2011.  She was a smart, hard working Soldier who should not, by Army regulation, have been separated from the Armed Forces.

15.  She provided a second sworn statement from SSG M____ A____ C____, dated 10 January 2014, who states:

* he has known the applicant for approximately 4 years
* she has always been professional, knowledgeable, and eager to learn
* she was always pleasant to work with and around
* he has personally worked with her and has first-hand knowledge of her work ethic, job knowledge, and the impact she had on her peers
* she, without a doubt, impacted her section greatly with her willingness to learn and her proficiency in aircraft maintenance
* she served as a mentor and even as an instructor to many deployed Soldiers in an educational capacity
* her educational background and love of education helped to further the career of multiple Soldiers
* it was a pleasure working with her and having the opportunity to work with her
* she was a great asset to the shop and the Army

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

	a.  Paragraph 1-19 (Authority to Approve or Disapprove Separation) states except for Secretarial plenary authority; separation due to reduction in force, strength limitations, or budgetary constraints; the Qualitative Management Program; voluntary separation of Soldiers serving indefinite enlistments; conviction by a foreign court; and the early release from active duty of Reserve Component personnel serving Active Guard Reserve tours under Title 10, U.S. Code, section 12301(d), commanders who are GCMCA and their superior commanders are authorized to approve or disapprove separation per this regulation.  This includes the authority to convene administrative separation boards when required by this regulation.  Commanders who are special court-martial convening authorities are authorized to approve or disapprove separation under chapters 5, 6, 7, 8, 9, 11, 13, 16, and 18 when the issuance of a characterization of service under other than honorable conditions is not warranted, unless otherwise provided in this regulation.

	b.  Chapter 5 provides for separation for the convenience of the government.  Paragraph 5-17 provides for discharge for other designated physical or mental conditions.  Commanders may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) and excluding conditions appropriate for separation processing under paragraph 5-11 or 5-13 that potentially interfere with assignment to or performance of duty.  A Soldier separated for the convenience of the government will be awarded a character of service of honorable, under honorable conditions, or an uncharacterized description of service if in an entry-level status.

	c.  Paragraph 5-17 (Other Designated Physical or Mental Conditions) states commanders specified in paragraph 1-19 may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability and excluding conditions appropriate for separation processing under paragraph 5-11 (Separation of Personnel Who Did Not Meet Procurement Medical Fitness Standards) or 5-13 (Separation Because of Personality Disorder) that potentially interfere with assignment to or performance of duty.

	d.  Paragraph 5-17a(9) states such a condition may include but is not limited to other disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired.  Soldiers with 24 months or more of active duty service may be separated under this paragraph based on a diagnosis of personality disorder.  For Soldiers who have been deployed to an area designated as an imminent danger pay area, the diagnosis of personality disorder must be corroborated by the MTF Chief of Behavioral Health (or an equivalent official).  The corroborated diagnosis will be forwarded for final review and confirmation by the Director, Proponency of Behavioral Health, OTSG (DASG-HSZ).  Medical review of the personality disorder diagnosis will consider whether PTSD, traumatic brain injury (TBI), and/or other comorbid mental illness may be significant contributing factors to the diagnosis.  If PTSD, TBI, and/or other comorbid mental illness are significant contributing factors to a mental health diagnosis, the Soldier will not be processed for separation under this paragraph, but will be evaluated under the physical disability system in accordance with Army Regulation 635-40.

	e.  Paragraph 5-17g states that except for Soldiers being separated under paragraph 5-17a(9) for personality disorder who have deployed to an area designated as an imminent danger pay area, commanders specified in paragraph 1-19 are authorized to order separation under this paragraph.

17.  Army Regulation 27-10 (Military Justice) establishes the policies and procedures for administration of military justice.  Paragraph 3-2 states the use of nonjudicial punishment is proper in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate.  Nonjudicial punishment may be imposed to preserve a Soldier's record of service from unnecessary stigma by record of court-martial conviction.  The imposing commander will ensure that the Soldier is notified of the commander's intention to dispose of the matter under the provisions of Article 15, UCMJ.  The Soldier will be advised that he/she has a right to demand trial.  The demand for trial may be made at any time prior to imposition of punishment.  The Soldier will be informed of his/her right to fully present his/her case in the presence of the imposing commander, to call witnesses, present evidence, be accompanied by a spokesperson, request an open hearing, and/or examine available evidence.  Punishment will not be imposed unless the commander is convinced beyond a reasonable doubt that the Soldier committed the offense(s).

18.  Army Regulation 600-37 (Unfavorable Information) establishes policies and procedures whereby a person may seek removal of unfavorable information from official personnel files.  The regulation also ensures that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in the individual's Official Military Personnel File (OMPF).  The regulation states that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her case lacked jurisdiction for discharge.

2.  She points out she requested sleeping medication because she had a miscarriage and was having difficulty sleeping, but she was diagnosed with an adjustment disorder.

3.  The evidence of record shows the applicant underwent a mental health evaluation in December 2011 and she was diagnosed with an adjustment disorder with depressed mood.  She was discharged on 29 February 2012 for a condition, not a disability.

4.  She contends the person who authorized her separation was not a GCMCA and the governing regulation states only a GCMCA has the authority to approve a separation when a Soldier is in an imminent danger pay area.  However, Army Regulation 635-200 clearly states commanders who are special court-martial convening authorities are authorized to approve or disapprove separation under chapter 5 except for Soldiers being separated for personality disorder who have deployed to an area designated as an imminent danger pay area.  She was not discharged for personality disorder.

5.  She contends she was coerced to sign away her right to an administrative separation board and she provided a sworn statement from an SSG attesting that she was pressured to sign the form.  However, the evidence shows she consulted with counsel on 20 January 2012 and she was advised of her rights.  It appears her administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize her rights.

6.  Her request for reinstatement of her MGIB and compensation for out-of-pocket tuition were noted.  However, since she did not complete 36 months of active duty during her term of enlistment, she is not entitled to the MGIB or any compensation for tuition.

7.  Her request to remove the Article 15 from her records and reinstate her rank was noted.  However, since there is no evidence the DA Form 2627 was improperly imposed, there is insufficient evidence on which to base removing the DA Form 2627 from her OMPF or reinstating her rank.

8.  Based on the foregoing, there is insufficient evidence to grant her requests for reinstatement in the Army, back pay and promotions missed, or buying back leave.

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 to amend the decision of the ABCMR set forth in Docket Number AR20120021578, dated 15 August 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)                                         AR20140012864



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ABCMR Record of Proceedings (cont)                                         AR20140012864



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