IN THE CASE OF: BOARD DATE: 4 February 2016 DOCKET NUMBER: AR20140021425 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: The applicant, in effect, defers to counsel. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests, in a letter to the Deputy Assistant Secretary of the Army, Army Review Boards, in effect, reconsideration of the applicant’s request to upgrade his discharge and change his reason for discharge to physical disability retirement. 2. Additionally, counsel requests: a. an evidentiary hearing; b. disclosure of the board members name and final votes in the previous consideration of the applicant’s case pursuant to Title 38, Code of Federal Regulations (CFR), section 723.3(2)(5); and c. in accordance with (IAW) Title 5, United States Code (USC), section 552(a)(1)(c) and (d), disclosure of the Army Board for Correction of Military Record’s (ABCMR) internal guidelines, general principals, and relevant procedures for considering this type of case. 3. Counsel states the previous ABCMR reviews misinterpreted or ignored: a. “the available evidence, including the recommendation by the Chief Colonel [at the applicant’s] Psychiatry Unit that he receive a medical discharge for suicidal ideation due to depression”; b. “the Department of Veterans Affairs (VA) psychiatrists’ explicit finding that the applicant’s multiple suicide attempts, before and after his discharge were caused by chronic post traumatic stress disorder (PTSD) related to significant exposure to combat traumas in Iraq”; and c. “this and other evidence, and upheld [the applicant’s] severe, life time punishment on the remarkably flippant basis that it was possible his life-threatening suicide attempt was a deliberate malingering situation.” 4. Counsel provides a copy of the legal brief submitted in support of the first reconsideration request. 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. The case was reconsidered and denied in Docket Number AR20130019277 on 27 August 2014. 2. In September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. This policy has since been extended to all former Soldiers with a less than fully honorable discharge who provided evidence of a diagnosis for PTSD. Therefore, the applicant’s requests are being considered again. 3. The applicant’s enlisted in the Regular Army on 9 March 2004. He was trained in and awarded military occupational specialty (MOS) 13F (Fire Support Specialist) and advanced to the rank of specialist/E-4. 4. The applicant served in Iraq from 29 January 2005 through 15 January 2006. 5. The medical records that were provided by counsel for the applicant’s first reconsideration are not complete; they 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 suicidal 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 a superficial laceration on the wrist. c. A Standard Form (SF) 600 (Chronological Record of Medical Care) dated 16 August 2007, reports the applicant was seen for nutritional care due to a 10-pound weight loss over a 2-week period. d. An SF 600 dated 21 August 2007, reports the applicant was seen for psychological testing including completion of the MMPI-2 (Minnesota Multiphasic Personality Inventory-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 symptoms 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 to 27 August 2007. The purpose of this evaluation was explained to him. (1) Section II – Evaluation – contains checkmarks to show all of his characteristics were normal. (2) 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 was not regarded as a danger to self or others at the time of discharge. (3) Diagnosis: Axis I: Dysthymia, Opioid Abuse, Malingering; Axis II: Personality Disorder; Axis III: None (4) 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. (5) Recommendations: It was recommended that (the applicant) be returned to duty. He would receive immediate follow up from the DMHA (Department of Mental Health and Addiction) and ASAP (Army Substance Abuse Program) and should be counseled to attend all scheduled follow up. He was cleared for all administrative actions. f. Medical Record-Patient Release/Discharge Instructions dated 28 August 2007 show 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 sought admission to the hospital for “superficial lacerations.” He stated he “couldn’t take it” and “wants to die.” The wound was closed with four staples. h. An 11 September 2007 Mental Status Evaluation states in: (1) Remarks: 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. (2) 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 was 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 (3) 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. (4) Recommendations: It was recommended that [the applicant] be returned to duty and the appropriate disciplinary actions taken. He would receive immediate follow up from DMHA and ASAP and should be counseled to attend all scheduled follow up. He was 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 Pre-Deployment Health Assessment shows the applicant was not deployable. k. A memorandum dated 15 October 2007 shows it was recommended that the applicant 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 applicant was hospitalized for a three week period in September 2007 and continued to speak of experiencing suicidal ideations due to depression. If deployed, it was further recommended that the applicant be followed by behavioral health in theater so that his case could be closely monitored. l. A medical examination conducted on 20 December 2007 shows the applicant indicated 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 indicated he had a history of anxiety, depression, suicidal ideation with suicidal attempts, a past use of opioids, and having had an appendectomy while serving in Iraq. 6. On 14 February 2008 the applicant was separated from the Army with a general discharge for misconduct (malingering). He had completed 3 years, 11 months, and 6 days of creditable service with no lost time. 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 W Bar. 7. For this reconsideration, a medical advisory opinion was obtained from the Office of The Surgeon General (OTSG). The Director of Healthcare Delivery described the applicant‘s career and his request to the board and noted the following: a. The Electronic Health Record (AHLTA) indicates the applicant was evaluated and treated by multiple behavioral health (BH) providers within the military treatment facility (MTF) on several occasions. PFC (Applicant) was admitted to the Winn Army Community Hospital inpatient psychiatric ward on 15 August 2007 and he was hospitalized for 13 days. He received a principal diagnosis of dysthymic disorder, opioid abuse, malingering, and personality disorder. He was prescribed an anti-depressant medication which was continued by his outpatient BH providers. During his hospital stay, psychological testing was conducted at the request of the attending psychiatrist. PFC (Applicant) endorsed a large number of items indicating extreme psychological distress. The test results neither support nor refute a diagnosis of malingering as individuals with bona fide diagnoses respond similarly as a “cry for help.” The psychologist that conducted the testing did not conclude that the applicant was malingering. Rather, the testing summary stated, “diagnostically, the possibility of a severe neurotic disorder such as anxiety disorder or dysthymic disorder in a schizoid personality.” b. The applicant was admitted to the psychiatric ward a second time on 11 September 2007 following a suicide attempt. He was determined to be unfit for deployment but fit for duty. He was discharged from the hospital on 1 October 2007 with a diagnosis of adjustment disorder and personality disorder. c. Despite evidence to the contrary, a diagnosis of malingering was given to the applicant in subsequent outpatient BH appointments. There is no documentation to support this diagnosis. One clinical note referenced the psychological testing as supportive of the diagnosis even though the results did not conclude this. A Developmental Counseling Form (DA 4865) quotes the applicant stating he refused to deploy again to Iraq. This statement paired with his suicide attempt (laceration to wrist) does not indisputably confirm malingering. A clinical assessment that incorporates all data including the applicant’s trauma exposure, psychological testing results, and functioning level before and after deployment would lead to other possible explanations to his behavior. d. Per the Secretary of the Army (sic) guidance, “Liberal consideration will be given for changes in characterization of service to service treatment record entries which document one or more symptoms which meet the diagnostic criteria of PTSD or related conditions” (emphasis added). Liberal consideration will also be given in cases where civilian providers confer diagnosis of PTSD or PTSD related conditions, when case records contain narrative that support symptomology at the time of service, or when any other evidence which may reasonably indicate PTSD or a PTSD-related disorder existed at the time of discharge which might have mitigated the misconduct that caused the characterization of Service. e. VA BH records clearly document symptoms linked to specific traumatic events supporting a diagnosis of PTSD at the time of Service and ruled out malingering. f. In sum, there is sufficient documentation to support the premise that (the applicant) had combat related PTSD during service. There is insufficient evidence to support a diagnosis of malingering which impacted his characterization of service. 8. The advisory opinion was forwarded to counsel for comment. Counsel responded stating that: a. The characterization of the applicant’s service should be upgraded to honorable. b. The applicant should have been processed for a physical disability separation in accordance with Army Regulation 635-200 (Active Duty Enlisted Administrative Separations). c. The reason for separation should be changed to physical disability with a 50 percent rating and placement on the temporary disability retired list and reevaluation or permanent retirement with at least a 30 percent disability rating; because the VA rated his PTSD symptoms as 30 percent disabling years after his discharge, due to his severe PTSD symptoms continuing unabated. 9. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. The regulation provides in: a. Paragraph 3–9 guidance for the Temporary Disability Retired List (TDRL). Specifically, it states the TDRL is used in the nature of a "pending list." It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover or nearly recover from the disability causing him or her to be unfit. Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability. Requirements for placement on the TDRL are the same as for permanent retirement. The Soldier must be unfit to perform the duties of his or her office, grade, rank, or rating at the time of evaluation. The disability must be rated at a minimum of 30-percent or the Soldier must have 20 years of service computed under Title 10, USC, section 1208. In addition, the condition must be determined to be temporary or unstable. b. Paragraph 4-3 guidance on enlisted Soldiers subject to administrative separation. It 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 if he/she finds 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 other circumstances warrant disability processing instead of alternate administrative separation. c. Paragraph 4-17 guidance for the Physical Evaluation Boards (PEB). Specifically, it states PEBs are established to evaluate all cases of physical disability equitably for the Soldier and the Army. The PEB is not a statutory board. Its findings and recommendation may be revised. 10. Army Regulation 15-185 (ABCMR) provides that there is no right to a personal appearance hearing; the members of an informal panel considering a case or the Director of the ABCMR may authorize a personal appearance hearing. 11. Title 5, USC, section 552, updates the Freedom of Information Act. It requires that Federal agencies publish rules, procedures, etc., in the Federal Register. 12. Title 32, CFR applies to the VA. DISCUSSION AND CONCLUSIONS: 1. The applicant, through counsel, requests reconsideration of his previous requests to upgrade the characterization of his service and change his narrative reason for discharge to physical disability retirement. Counsel also requests: * an evidentiary hearing * IAW Title 38 CFR, section 723.3(2)(5) disclosure of board members’ names and votes in the previous reconsiderations * IAW Title 5 USC, section 552(a)(1)(c) and (d) disclosure of the ABCMR’s internal guidelines, general principals, and relevant procedures for considering this type of case. 2. The OTSG Director of Healthcare Delivery noted that the VA had ruled out malingering and that there was sufficient evidence to conclude PTSD had adversely impacted the quality of the applicant’s service. 3. Combining the practice of applying “liberal consideration” for veterans believed to have been suffering from PTSD with the OTSG advisory opinion, it would be appropriate to recharacterize his service as having been honorable and change his reason for discharge to Secretarial Authority. 4. However, the OTSG advisory opinion does not indicate the applicant suffered from a disabling physical or mental condition that warranted separation processing through medical channels at the time of discharge processing and the available medical records do not contain such evidence. Although the applicant was found to be unfit for deployment due to his suicidal gesture(s) there is no evidence he was considered unfit for duty. 5. A finding of being unfit for duty is a requirement for granting of disability separation or retirement. The applicant received extensive mental health treatment and testing and no health professional even suggested that he might be unfit for duty. Therefore, the request for disability separation or retirement should be denied. 6. This Board’s policies, relevant procedures, and general principles are outlined in Army Regulation 15-185, which will be provided to counsel. 7. Counsel may submit a FOIA request for the names of Board members. However, counsel is advised that the votes on previous considerations of this case were provided to the applicant and are included in the applicant’s Official Military Personnel File. 8. In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records as recommended below. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ___x____ ___x____ ___x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s previous decisions in Docket Number AR20120011224 on 29 January 2013 and Docket Number AR20130019277 on 27 August 2014. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. upgrading his service to honorable; b. changing his reason for discharge to Secretarial Authority; and c. issuing him a new DD Form 214 reflecting these changes. 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to changing his reason for discharge to physical disability retirement or providing him a personal appearance hearing. _______ _ 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) AR20140021425 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140021425 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1