ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


IN THE CASE OF: 
BOARD DATE:  13 June 2019
DOCKET NUMBER: AR20160011735


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests upgrade of his general discharge under honorable conditions.

2. The applicant states:

   a. He was discharged for misconduct. The discharge should have been a medical discharge as he was taking “serious drugs” for mental disability.

   b. Prior to his deployment, he was issued quetiapine fumarate (Seroquel). Had the command verified this medication prior to his deployment, he would not have been deployed. The command never questioned the Bayne Jones Army Hospital about the issue with this medication or if any medications would have stopped him from being deployed; as such, he was deployed with a mental disability severe enough to have to take this type of medication.

THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1. Application for correction of military records with supporting documents:

* Department of Veterans Affairs (VA) list of medications
* DD Form 214 (Certificate of Release from Active Duty)

2. Evidence from the applicant’s service record and Department of the Army and Department of Defense records and systems:

* DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States)
* Orders PK-270-0178, issued by Headquarters, Joint Readiness Training Center and Fort Polk, dated 27 September 2010
* DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice, dated 24 July 2011
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* Separation documents
   * DA Form 3822-R (Report of Mental Status Evaluation), dated 26 July 2011 REFERENCES:
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.

2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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, 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 considered appropriate for a Soldier discharged under this chapter.

   b. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

   c. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

3. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, separation, and retirement.

   a. Chapter 3 provides guidance for the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for service.
   a. 


   b. These medical conditions and physical defects, individually or in combination, are those that significantly limit or interfere with the Soldier's performance of his/her duties; may compromise or aggravate the Soldier's health or well-being if the Soldier were to remain in the military service (this may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring); may compromise the health or well-being of other Soldiers; or may prejudice the best interests of the government if the individual Soldier were to remain in the military service.

4. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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 or her office, grade, rank, or rating. 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. Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits:

   a. The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training.

   b. The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence.

5. On 3 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 UOTHC 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 applicants' service.

6. On 25 August 2017, the Office of the Under Secretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by veterans for
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modification of their discharges due in whole or in part to: mental health conditions, including PTSD; traumatic brain injury (TBI); sexual assault; or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. The guidance further describes evidence sources and criteria and requires boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge.

   a. Evidence may also include changes in behavior; requests for transfer to another military duty assignment; deterioration in work performance; inability of the individual to conform their behavior to the expectations of a military environment; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; unexplained economic or social behavior changes; relationship issues; or sexual dysfunction.

   b. Evidence of misconduct, including any misconduct underlying a veteran's discharge, may be evidence of a mental health condition, including PTSD; TBI; or of behavior consistent with experiencing sexual assault or sexual harassment.

   c. The veteran's testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge.

7. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court- martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment.  Changes to the narrative reason for discharge and/or an
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upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization.

DISCUSSION:

1. While 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. On 24 June 2005, the applicant enlisted in the Regular Army.

3. Orders PK-270-0178, dated 27 September 2010, show the applicant was ordered to deploy in support of Operation Enduring Freedom on 13 October 2010 for a period not to exceed 365 days.

4. On 24 July 2011, the applicant received nonjudicial punishment (NJP) for wrongfully possessing and using a substance used for the primary purpose of inducing excitement, intoxication, and/or stupefaction of the central nervous system (Spice). He was found guilty and received a reduction in pay grade, forfeiture of pay for two months, and extra duty for 45 days.  He did not appeal.

5. On 26 July 2011, his immediate commander initiated discharge action against him under the provisions of Army Regulation 635-200, paragraph 14-12c, for a commission of a serious offense consisting of discreditable conduct prejudicial to good order and discipline, by wrongfully possessing and using an illegal substance (Spice).  He recommended that he receive a general discharge.

6. He was advised of his right to consult with counsel, to submit a written statement on his behalf, obtain copies of documents that would be sent to the separation authority, and request a hearing before an administrative board if he would have had 6 or more years of active and reserve military service at the time of separation. He was required to undergo a mental status evaluation in accordance with Army Regulation 40-501.

7. On 26 July 2011, he received a Report of Mental Status Evaluation, which noted he had normal behavior, was fully alert, fully oriented, unremarkable mood,
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clear thinking process, normal content, and a good memory. Furthermore, the evaluation stated that he screened negative for PTSD and for a traumatic brain injury.

8. On 5 August 2011, he waived his right to an administrative board, he acknowledged his desired to consult with counsel, and he did not submit any statement in his own behalf.

9. On 17 August 2011, the approval authority approved his separation of under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct- drug abuse and directed the issuance of a General Discharge Certificate.

10. His DD Form 214 shows he was discharged accordingly on 17 October 2011. He completed 6 years, 3 months, and 24 days of active duty this period and his service was characterized as general, under honorable conditions.

11. There is no record that he applied to the Army Discharge Review Board for an upgrade to his discharge.

12. The applicant provided a copy of his list of medications, which includes a prescription for Seroquel.

13. The Army Review Boards Agency psychiatrist provided an advisory opinion on 4 June 2018.  It states:

   a. There is no indication in the applicant’s medical record that he failed to meet medical retention standards in accordance with Army Regulation 40-501.

   b. The applicant states that he should receive a medical disability/retirement because he was prescribed Seroquel (25-100 mg per day as needed) while on active duty.  He also contends that prescription of this medication indicated he had a serious mental condition and should not have been deployed as a result. It is true that Seroquel is classified as an antipsychotic medication and is often used in high doses to treat psychotic symptoms. It is also classified as a mood stabilizer and is used to treat mood instability.  Additionally, at lower dosages, it is used off-label to treat anxiety and insomnia.

   c. Review of his medical records indicates that the Seroquel prescription he received was for a low dose amount to be taken as needed for occasional paranoid thoughts. While paranoid thoughts can occur in psychotic conditions, they can also occur in situations of stress in individual with normal mental health functioning.  Review of his medical record is negative for the presence of any
   a. 


psychotic conditions and there is no indication in this medical record that he had a mental condition that rendered him unable to deploy.

   d. In regard to his contention that he should have received a medical discharge/disability because he was prescribed Seroquel, it is important that the applicant realize that military medical disability is not determined solely by the medication a Soldier is taking but, rather, is determined by the effect an illness has on a Soldier’s overall military functioning. In his case, there is no evidence that he suffered from any behavioral health condition which interfered with effective duty performance, necessitating duty limitations such as profiles or requiring recurrent or extended hospitalization. As such, a referral to the disability evaluation system for military medical disability/retirement is not indicated.

   e. Review of his electronic VA medical record in the Joint Legacy Viewer indicates that he is 60 percent (%) service connected, 50% of which is for PTSD. It is important to understand that the VA findings of a service-connection does not automatically result in a military medical retirement. The VA operates under different rules, laws and regulations when assigning disability percentages that the DOD. In essence, the VA will compensate for all disabilities felt to be un- suiting. The DOD, however, does not compensate for un-suiting conditions. It only compensates for unfitting conditions. Based on the available military records, there is no indication that he suffered from an unfitting psychiatric condition.

   f. The applicant was discharged with a general discharge under Army Regulation 635-200, paragraph 14-12c, for drug abuse. Review of his military records indicated he was separated from the Army for wrongfully using Spice and being caught using alcohol.  Review of the VA medical records indicated he is 50% service connected for PTSD. In accordance with the 3 September 2014 Secretary of Defense Liberal Guidance Memorandum, it is the opinion of the Agency psychiatrist that his misconduct (drug abuse) was, more likely than not, due to the presence of PTSD and, as such, is mitigated by this diagnosis.

   g. His medical conditions were duly considered during his separation processing.

   h. His military records do support the diagnosis of PTSD at the time of discharge.

   i. He did meet medical retention standards, under Army Regulation 40-501, and did not warrant separation through medical channels.
   a. 



   j. The applicant’s diagnosis of PTSD is mitigating for the misconduct that resulted in his general discharge.

14. The applicant was provided a copy of the advisory opinion. He did not respond.

15. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on mental health conditions, including PTSD. The Board should also consider the available evidence, to include the applicant’s statement, against the guidance regarding equity, injustice, or clemency determinations.

//NOTHING FOLLOWS//

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


IN THE CASE OF: 
BOARD DATE:  13 June 2019
DOCKET NUMBER: AR20160011735


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.

6/24/2019
X 

CHAIRPERSON
Signed by: 

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.












Enclosure 2