IN THE CASE OF: BOARD DATE: 28 March 2017 DOCKET NUMBER: AR20150016005 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __x_____ ___x____ ____x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 28 March 2017 DOCKET NUMBER: AR20150016005 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. IN THE CASE OF: BOARD DATE: 28 March 2017 DOCKET NUMBER: AR20150016005 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 correction of his records to show he was separated for medical reasons. 2. The applicant states: a. He served honorably from 2003 to 2010. In 2007, he sought mental health care due to his behavioral health (BH) issues, especially his anger, which later related to his military occupational specialty (MOS) as an emergency room medic and his deployment to Afghanistan. b. He was not being properly cared for, so he self-referred to mental health and requested a medical evaluation board (MEB) in January 2012. He was diagnosed with post-traumatic stress disorder (PTSD) and anxiety and placed on a permanent profile. c. He had two episodes of misconduct; a physical assault on a junior enlisted Soldier while in theater in 2011 and a failed urinalysis in May 2012, due to the fact that he was self-medicating. He was given a field grade Article 15. d. His MEB was revoked and he was sent to a separation board. In accordance with Army regulations, he should have been cared for properly and if diagnosed and treated correctly, he should have been medically boarded out of the military. He would not have felt the need to self-medicate and the two episodes of misconduct would not have occurred. e. He informed his mental health providers on many occasions that his medications were not helping. His medications were increased until they were maxed out; he was walking around like a zombie and they still were not working. He was an exemplary noncommissioned officer (NCO) for five years and an outstanding medic with seven years of honorable service. f. After leaving the military, his went haywire. He was on drugs and he was homeless and suicidal. His life was a wreck and he had spiraled out of control living on the streets. He was admitted to the hospital in July 2013 for weeks of inpatient mental and BH care for PTSD and opiate abuse. He has since lived in transitional Department of Veterans Affairs (VA) housing; he completed a substance abuse rehabilitation program through the VA in in 2014 and has been sober since. He is employed full time with a local cable company. g. He is requesting reinstatement of his rank/grade to staff sergeant (SSG)/E6, and back pay in accordance with the Code of Federal Regulations section 4.129, which states that "when a mental disorder that develops in service as the result of a stressful event is severe enough to bring about the veteran's release from active military service, the rating agency shall assign an evaluation of not less than 50 percent and schedule an examination within a six month period following the veteran's discharge to determine whether a change in evaluation is warranted." h. He is a combat veteran of Operations Enduring Freedom and Iraqi Freedom with seven years of honorable service, five years as an NCO with exemplary performance and evaluations. He requests the Board take these facts into consideration. 3. The applicant provides: * Army Discharge Review Board (ADRB) Case Report and Directive, dated 22 September 2014 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DA Form 3349 (Physical Profile) * VA Form 21-526b (Veteran's Supplemental Claim for Compensation) * four VA Forms 21-0781 (Statement in Support of Claim for Service Connection for PTSD) * two pictures of himself CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 7 October 2003. He was awarded MOS 68W (Health Care Specialist) upon completion of his initial entry training. He reenlisted on 19 October 2006, 13 May 2009, and 26 May 2010. 2. The applicant was promoted to the rank/grade of SSG/E-6 on 1 September 2009. He served in Afghanistan from 6 December 2010 to 8 October 2011. 3. The applicant was issued a physical profile on 1 March 2012 for mental health reasons. The DA Form 3349 includes the entry, "No combat. No weapons. No exposure to the sounds of weapons firing within 150 meters. Soldier is taking medication that should not be combined with alcoholic beverages." The DA Form 3349 also shows his condition did not meet retention standards in accordance with Army Regulation 40-501 (Standards of Medical fitness) and that he required an MEB. 4. The applicant underwent a mental status evaluation on 13 June 2012. The DA Form 3822 (Report of Mental Status Evaluation) shows: * he was evaluated by the Chief, Behavioral Medicine – a Board Certified Clinical Psychologist * he was screened for PTSD and traumatic brain injury (TBI). The conditions were either not present or, if present, did not meet the criteria in Army Regulation 40-501 for MEB * he was found fit for duty, including deployment * he met medical retention standards (i.e. he did not qualify for an MEB) 5. The applicant accepted nonjudicial punishment on 12 July 2012, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for wrongful possession of heroin on or about 16 May 2012. 6. The applicant's immediate commander informed him on 1 August 2012 of his intent to separate him from the Army under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c(2), by reason of misconduct-abuse of illegal drugs, with an under other than honorable conditions discharge. His commander cited the applicant's wrongful possession of heroin as the reason for the proposed separation action. The applicant was also advised of his right to consult with legal counsel and to request a hearing before an administrative separation board. 7. The applicant consulted with legal counsel on 2 August 2012 and was advised of the basis for the contemplated separation action for misconduct-abuse of illegal drugs and the rights available to him. He requested personal appearance before an administrative separation board. 8. An administrative separation board convened on 1 October 2012 to determine whether the applicant should be separated from the Army for the commission of a serious offense. The board recommended the applicant's separation with an under other than honorable conditions characterization of service. 9. The separation authority approved the administrative separation board's recommendation on 16 October 2012, for the applicant's separation with service characterized as under other than honorable conditions. 10. The applicant was discharged on 3 November 2012. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c(2), due to misconduct (drug abuse), with an under other than honorable conditions characterization of service. 11. The ADRB determined on 22 September 2014 that the applicant's chain of command did not follow the proper discharge procedures by introducing a document into the discharge process that revealed the applicant had self-referred to the Army Substance Abuse Program (ASAP). This is limited use information as defined in Army Regulation 600-85 (The Army Substance Abuse Program). Use of this information mandates an honorable discharge. As a result, the ADRB directed the upgrade of the applicant's discharge to honorable. The ADRB also determined that the reason for his discharge was both proper and equitable. 12. During the processing of this case, a medical advisory opinion was obtained from the Army Review Boards Agency's (ARBA) Psychiatrist. This official opined: a. Documentation reviewed includes the applicant's application for correction of his records, his ADRB Case Report and Directive, his electronic military medical record (AHLTA) and his electronic VA medical record (JLV). b. On 25 July 2006, he was seen by BH for marital problems. c. On 22 December 2006, he was diagnosed with adjustment disorder with depressed mood secondary to his marital problems. d. On 24 May 2007, he reported experiencing anxiety from his marital separation and from working in the emergency room. At this time, he was treated with Paxil and Xanax. e. On 8 August 2007, he presented to BH with complaints of family stress (he was separated from his wife, could not see his child, and his parents had recently divorced) and work stress. He reported a history of treatment with Zoloft and Paxil. Both medications were stopped due to side effects. Symptoms present during this appointment included insomnia, fatigue, decreased appetite, moodiness, irritability, tearfulness, agitation and some vague suicidal ideation with no plan. The applicant was screened for PTSD at this time and scored negative (PCL-M:42). He was diagnosed with major depressive disorder, single episode and treated with citalopram (an antidepressant) and clonazepam (an antianxiety medication). f. On 2 September 2008, he presented to the emergency department (ED) with complaints of transient blurred vision and headache after being hit in the jaw during a football game. He denied loss of consciousness. He reported he had a history of three concussions prior to entering active duty. He was diagnosed with concussion. g. On 10 October 2008, he was diagnosed with adjustment disorder with anxiety and depressed mood after finding out his soon to be ex-wife was dating another man. h. On 8 May 2009, he presented to family practice (FP) requesting Xanax (alprazolam, a benzodiazepine). During this visit, he stated he did not want to go to BH for the Xanax and did not want to participate in BH therapies. His FP provider prescribed him Effexor and Feldene but did not prescribe him Xanax. i. On 28 December 2009, he presented to the ED for treatment of opiate withdrawal. His presenting symptoms were anxiety, dysphoria, shakiness, and rambling speech. He reported that he had started using opiates in October 2009, beginning with oral medications (Vicodin, Percocet, OxyContin) then moving on to IV injection of OxyContin followed by IV injection of heroin. He reported he was using heroin daily and injecting into both of his arms and his left hand. He requested inpatient treatment and he was admitted to the hospital for substance abuse treatment. He was discharged from the hospital on 19 January 2010 with the diagnosis of opioid dependence. j. On 18 August 2011, he presented to the theater clinic with complaints of depression due to his divorce not being finalized, losing rank because of a physical altercation with another Soldier (the other Soldier was disrespectful to him and he punched him in the face), being under investigation for drug use, and being informed he was financially responsible for damage to his individual weapon. He was diagnosed with major depressive disorder, recurrent, mild. k. On 21 August 2011, he was also diagnosed with anxiety disorder, not otherwise specified (NOS) and placed on an antidepressant. On 17 September 2011, he had a witnessed seizure and was medically evacuated to Landstuhl Regional Medical Center (LRMC). He was evaluated by neurology. His head computed tomography (CT) scan, brain magnetic resonance imaging (MRI) scan and electroencephalograms (EEGs) were all negative. The neurologist ultimately concluded that his seizure was due to the medications he was taking at the time. l. While at LRMC, he was seen by BH and was diagnosed with anxiety disorder NOS, rule out PTSD, rule out generalized anxiety disorder. During the BH evaluation, he described carrying dead bodies and feeling responsible for not being able to save an individual in Afghanistan as the traumatic stressors. He also reported insomnia, jumpiness, and paranoia. m. On 7 October 2011, he was seen for a psychiatric evaluation. During the evaluation, the psychiatrist spoke with his commander who was concerned because the applicant appeared to have lost his military bearing and was reporting late to formation. The commander felt that the applicant looked over-sedated. The applicant blamed his sedated state on clonazepam. On 14 October 2011, during his BH appointment, he was noted to be dozing off during the session. He attributed his drowsiness to lack of sleep. During this appointment, he refused a prescription for Effexor (a non-addictive antidepressant) and stated he only wanted clonazepam (a potentially addictive antianxiety drug). n. On 1 November 2011, he reported worsening anxiety because he had just found out that his good friend and his dog had been blown up while riding a bus in Afghanistan. o. On 1 March 2012, his MEB Narrative Summary was completed. His diagnoses were PTSD and generalized anxiety disorder. The PTSD was felt to meet retention standards; the generalized anxiety disorder was felt to not meet retention standards. p. On 6 March 2012, his diagnoses continued to be generalized anxiety disorder and PTSD. His PCL-M score at this time was 47 (score of 50 and above indicates need for further PTSD assessment). On 30 March 2012, he presented to BH anxious because his unit felt he was retainable and wanted to stop his MEB. q. On 18 May 2012, the applicant presented to BH in opioid withdrawal. He reported that someone had told his command that he was doing drugs. His room had been searched, an unknown substance had been found, and he was directed to have a urine drug screen. He admitted to BH that he had been using IV OxyContin and heroin. He reported using close to one gram of heroin per day, injecting 3-4 times a day. He had also been abusing his Valium. He was subsequently treated for opioid withdrawal. He was diagnosed with opioid dependence. r. Review of the VA electronic medical record indicates that the applicant is 30 percent service-connected. (What his service connection is for cannot be determined from the record). His VA problem list contains the following BH diagnoses: 1) alcohol dependence, 2) anxiety disorder, 3) major depressive disorder, 4) opioid dependence, 5) cannabis dependence, 6) history of homelessness. s. The applicant's military medical records do support a PTSD diagnosis at the time of discharge. His medical records indicate that he met medical retention standards for the diagnosis of PTSD; however, he did not meet medical retention standards for the diagnosis of anxiety disorder, NOS, in accordance with Army Regulation 40-501. An MEB was initiated for the applicant but was stopped when the decision was made by his command to administratively separate him for misconduct: drug abuse. His diagnosis of PTSD partially mitigates his misconduct for drug abuse. t. While on active duty, the applicant was diagnosed with opioid dependence with IV OxyContin/heroin use in December 2009. At that time, he was admitted to an inpatient treatment facility from 28 December 2009 to 19 January 2010 for detoxification and treatment of his addiction. His diagnosis of opioid dependence precedes his deployment to Afghanistan (6 December 2010-5 October 2011) and his diagnosis of PTSD (8 November 2011). Because his opioid dependence existed prior to the development of his PTSD, it was not caused by his PTSD and, therefore, is not fully mitigated by his PTSD. However, it is likely that his PTSD exacerbated his pre-existing opioid dependence. As such, his PTSD would be considered partially mitigating for his misconduct drug abuse. u. The applicant indicated in his application that he developed PTSD symptoms while working in the Emergency Room prior to his deployment to Afghanistan. The medical documentation, however, does not support this fact. The medical documentation prior to his deployment to Afghanistan supports the diagnosis of major depressive disorder, not PTSD. v. The applicant did undergo the required medical examination and BH examination prior to his discharge as required by Title 10, U.S. Code, section 1177 (Members diagnosed with or reasonably asserting PTSD or TBI: medical examination required before administrative separation) 13. The applicant provides a VA Form 21-526b, dated 8 June 2015, which shows he filed a claim to the VA for numerous medical conditions including PTSD. This form also suggest that the VA previously denied his claim for service-connected disability compensation for PTSD. He also provides four VA Forms 21-0781, in which he describes the incidents that resulted in his PTSD. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 deals with separation for various types of misconduct, which includes drug abuse, and states that individuals identified as drug abusers may be separated prior to their normal expiration of term of service. The regulation in effect at the time stated individuals in pay grades E-5 and above could be processed for separation upon discovery of a drug offense. Those in pay grades below E-5 could also be processed after a first drug offense and must have been processed for separation after a second offense. The issuance of a discharge under other than honorable conditions was normally considered appropriate. 2. Army Regulation 635-40 establishes the Army physical disability evaluation system 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 office, grade, rank, or rating. a. Paragraph 3-1 provides that the mere presence of 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 member reasonably may be expected to perform because of his or her office, rank, grade or rating. The Army must find that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated. b. Paragraph 3-5 provides that there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. c. Paragraph 4-3 provides that 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. DISCUSSION: 1. The applicant contends that his discharge for misconduct should be changed to a medical discharge. 2. The available evidence shows he underwent an MEB in March 2012, which diagnosed him anxiety disorder and PTSD. His anxiety disorder was found to not meet retention standards. His PTSD was found to meet retention standards. 3. The evidence also shows that he received nonjudicial punishment for wrongful use of heroin and he was subsequently separated for misconduct due to his drug use, with an under other than honorable conditions discharge. 4. The governing regulation provides that an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision that authorizes a characterization of service of under other than honorable conditions. As a result, his chain of command determined he was ineligible for disability processing and voided his processing through medical channels. 5. The applicant contends he should have been cared for properly and if diagnosed and treated correctly, he should have been medically boarded out of the military. However, the evidence of record shows he was diagnosed with opioid dependence in 2009 (prior to his service in Afghanistan) and that he was seen on several occasions by the Army medical personnel and treated accordingly. Therefore, it appears his contention is without merit. 6. Based on the foregoing, it appears that that he was properly separated for misconduct instead of for medical reasons. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016005 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016005 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2