ARMY BOARD FOR CORRECTION OF MILITARY RECORDS SUPPLEMENTAL RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 November 2019 DOCKET NUMBER: AR20190012848 APPLICANT REQUESTS: upgrade of his general discharge under honorable conditions. APPLICANT'S ADDITIONAL SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * self-authored rebuttal to medical advisory opinion, dated 25 August 2019 * Department of Veterans Affairs (VA) disability rating document, printed 24 August 2019 * self-authored letter to the Army Review Boards Agency (ARBA), dated 15 August 2019 * Office of the Under Secretary of Defense memorandum, dated 25 August 2017 * LabCorps medical documents, dated February 2009 * 10 pages of Standard Forms 600 (Chronological Record of Medical Care) * multiple documents previously provided and previously considered by the Board, to include 41 pages of Laurel Ridge Treatment Center medical records ADDITIONAL FACTS: 19. On 28 August 2019 new information was received from the applicant in regard to the decision of the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20180016785, dated 29 August 2019. 20. The applicant states: a. In response to the ARBA medical advisor’s opinion of his behavioral health history and treatment, he is providing some useful facts relevant to the case. First and foremost, the medical advisory made the comment that nowhere in his medical records from 2001 to 2015 is there any mention of bipolar disorder. This is factually incorrect and incomplete. The medical advisor appears to have only looked at his outpatient Army electronic behavioral health records, rendering the opinion incomplete. There is zero indication the ARBA medical advisor had access to his inpatient psychiatric admission to Laurel Ridge Treatment Facility in February 2009, despite the fact that he provided that documentation to the Board. b. His admission to Laurel Ridge Treatment Facility was a direct transfer of a service member (himself) from the emergency room at Brooke Army Medical Center (BAMC) to Laurel Ridge Treatment Facility. This is particularly relevant because Laurel Ridge was the trusted inpatient psychiatric hospital that BAMC in San Antonio, TX, trusted to provide inpatient psychiatric care to service members that BAMC lacked. As such, his admission to Laurel Ridge was a continuum of care from the BAMC emergency room and was in essence the same as having his care provided for at a military treatment facility. The U.S. Congress has mandated that any health care service contracted out by the Federal Government must meet or exceed the health care standards of other military treatment facilities having the same health care capabilities. Therefore, Laurel Ridge was both the higher level of care from BAMC and the authority for treating inpatient psychiatric patients. c. It is because of this that his diagnosis of bipolar disorder received at Laurel Ridge should have been the last word on his behavioral health diagnosis. The lower level of care by the outpatient Department of Defense psychiatrist should not have been able to overrule the higher level of care and give the diagnosis of atypical depression. Therefore, the comment by the ARBA medical advisor that nowhere in his Army medical records from 2001 through 2005 is there any mention of bipolar disorder is clearly false. As the patient who had suffered an acute nervous breakdown, it was not his responsibility to scan these medical records into the system. d. Upon review of his Laurel Ridge medical documentation, you will see his admission date was 18 February 2009. His admitting physician was a psychiatrist at Laurel ridge and you can see he was referred from the BAMC emergency room. He had suicidal ideation following a conflict at his job in the military and marital strife. He complained of increased anxiety, increased paranoia that the Federal Bureau of Investigation might come to get him, irritability and tearfulness. The same admissions document shows his past psychiatric history involved a depressive episode in 2001 during a residency program where he was prescribed Celexa (medication used to treat depression) for 3 months. This document shows that under psychiatric history that his father had schizophrenia, was bipolar and took lithium. The most import information from this Laurel Ridge document shows he was diagnosed with bipolar 1 disorder, current episode mixed in rapid cycling with psychosis. e. In addition to the Laurel Ridge inpatient medical documentation, he provided copies of evidence of his treatment with medications known to treat bipolar disorder, despite being labeled as having the diagnosis of atypical depression. Lithium is a medication almost exclusively used to treat bipolar disorder and he was started on it at Laurel Ridge. The lithium medication was then continued by the Army outpatient physician at BAMC. He has attached copies of notes from his treating psychiatrist at BAMC and one can clearly see that he has evidence of treatment with lithium at varying levels by military medical providers from April 2009 until February 2010. Lamotrigine (an anticonvulsant and mood stabilizer) is another medication that he used during the time frame of 2009-2010 and it is also a medication known to treat bipolar patients. The traditional selective serotonin reuptake inhibitor (SSRI) antidepressants like Zoloft or Paxil were not chosen for him. Apparently the SSRI medications can cause rapid cycling and worsen bipolar symptoms. So in essence, despite being given a retainable diagnosis of atypical depression by the Department of Defense psychiatrist, he was treated like he had bipolar disorder because he was given bipolar medications. f. This could be why the VA Disability Compensation Rating System gave him a service-connected disability rating of 30 percent for bipolar disorder so quickly, within 6 months after his separation from the Army. It stands to reason that he was awarded the service-connected disability rating for bipolar disorder from the VA so rapidly because there was evidence he was being treated with bipolar medications for over 1 full year at BAMC. The evidence from Laurel Ridge and his service medical records was so strong, it enabled the VA to quickly award him a service- connected disability rating. g. He wishes to add that not finding a bipolar diagnosis in his outpatient electronic military medical records is not a weakness to his argument, but actually a strength. This further contributes to his claim that he was misdiagnosed with atypical depression instead of with the appropriate diagnosis of bipolar disorder. This argument is made even stronger because two separate and independent behavioral health providers from Laurel Ridge and the VA came to the exact same diagnosis of bipolar disorder. These diagnoses came 7 years apart and from psychiatrists and clinical psychologists who did not have a vested interest in maintaining his services as an anesthesiologist on active duty. Therefore, their judgments were not clouded by Army retention rules, regulations, or any undue command influence. h. He believes being given the wrong diagnosis and being transferred to Fort Jackson, SC with the diagnosis of atypical depression may have contributed to not having his medications renewed and restarted. He even went to Dr. x____ x____, a psychiatrist at Moncrief Army Community Hospital, in 2012 before he was separated from his wife and committed the misconduct. He went to him because he wanted to be placed back on his medications. He does not know why he chose counseling over medication therapy for him, but nonetheless he was never restarted on is medications. He can only speculate that the provider saw a diagnosis of atypical depression and not bipolar disorder, so he chose not to start him back on the bipolar medications. i. The ARBA medical advisor’s argument that he had excellent evaluations during his entire time in the Army does not rule out the bipolar diagnosis. Bipolar people often perform exceptionally well at work and there are numerous examples of people in history with bipolar disorder functioning very well in their careers, potentially because they were in the manic phase of the disorder. The bipolar disorder used to be called manic depressive disorder and mania is often reflected in super human performance. Therefore, the medical advisory’s claims he had shown no signs of bipolar disorder due to his excellent Army evaluations is unfounded. What is more typical for bipolar patients is that they have trouble forming long lasting relationships such as maintaining a marriage. Also, interpersonal conflict at work, which he had and was evident in his history of present illness section in his Laurel Ridge medical documents, is more common in people with bipolar disorder. It can be clearly seen in the notes from the Department of Defense physician that he was experiencing severe marital discord. It is also obvious from the Army Regulation 15-6 (Procedures for Administrative Investigations and Boards of Officers) investigation that he was living alone, away from his estranged wife during most of the investigation from 2012 – 2014. j. The assertion by the ARBA medical advisory that he is only receiving a VA disability rating of 50 percent for bipolar disorder is blatantly false and he has attached his VA disability ratings which he pulled from his eBenefits account. To correct the medical advisory, he has a 50 percent service-connected disability rating for bipolar disorder with post-traumatic stress disorder (PTSD) symptoms, not just for bipolar disorder. The reason this is important to note is because PTSD is often not diagnosed unless there is a full targeted examination at the time of the symptoms. This is one of the reasons for the Office of the Surgeon General’s guidelines to all U.S. Army Medical Command and U.S. Army Medical Department Activity commanders in 2012 to assess for signs and symptoms of PTSD. If the medical advisory had actually taken a close look at the diagnosis from the VA psychiatrist, he/she would have seen that unspecified anxiety disorder with multiple PTSD symptoms may have previously met full criteria. He was never screened for PTSD while in service and he did have significant exposure to death and sever traumatic injuries to Soldiers at the Combat Support Hospital in Baghdad. So to say he is not receiving any service-connected disability for PTSD is false because he is receiving 50 percent for bipolar disorder with PTSD symptoms. k. He is receiving service-connected disability for the persistent PTSD symptoms despite lacking the full diagnostic criteria. He is also currently taking low dose Prazosin to assist him with his sleep, which is a medication prescribed for patients with PTSD symptoms. Also, the VA has a completely blind approach to evaluating veterans for service-connected disabilities by using physicians who do not directly care for the veteran, but evaluate his/her medical history both from their time in the service and from their VA medical records. This way, the VA maintains an unbiased approach to assessing service-connected disabilities. l. This brings him to his final point regarding the specialist at the U.S. Army Human Resources Command (HRC) asking his commander at Womack Army Medical Center for a Mental Status Examination. Email communication from the specialist at HRC shows if depression is clearly stated on the physical a Mental Status Evaluation is required, to which his commander responded the requirement for a Mental Status Evaluation is only valid if there was a deployment within the past 24 months, a history of PTSD, and the Soldier is facing a discharge under other than honorable conditions. The HRC specialist relents and states a Mental Health Examination will be obtained if needed. It is possible that if the Mental Status Evaluation had taken place, he could have received the correct diagnosis and treatment for his bipolar condition while he was still on active duty. This examination never occurred and it may be the reason the memorandum from the Under Secretary of Defense now exists, to enforce consideration for mental health conditions prior to involuntary separation for misconduct. m. He was a very good anesthesiologist while in the Army, just like he is a very good anesthesiologist now working at a civilian hospital. He has always done his very best, but had to overcome some very real demons in his life. He has had to come to terms with his bipolar disorder and PTSD symptoms. It has taken him a very long time to learn how to stick to his medications, avoid emotional triggers, and stay emotionally consistent. It has not been easy and it was not easy to get awarded a 50 percent service-connected disability from the VA for bipolar disorder with PTSD symptoms. The VA does not hand out this disability rating lightly; it must be warranted with evidence of service-connection. n. His emotional lability has been difficult at times to control, but he has learned through medication, counseling, and time how to be a much more effective physician and person. While he was in the service he clearly made a mistake, but that mistake was made within a certain context. He made that mistake while he was misdiagnosed as having atypical depression and was off of his bipolar medications. This is not a cop-out. These are the actual sequence of events that occurred during the very turbulent time he had in the Army from 2009-2014. There was a lot of drama in his life in the past and that was reflected in his lack of awareness of emotional triggers and his need for both counseling and good sleep hygiene. He clearly had a condition which was not adequately addressed, which was not atypical depression. They say hindsight is 20/20 and it definitely is easier for him to understand the whole picture now looking back at his actions and life during that time frame. o. He has provided the medical facts as he knows them to the best of his knowledge. He has been diagnosed with a 50 percent service-connected disability of bipolar disorder with PTSD symptoms by the VA. This is the same diagnosis he was given a Laurel Ridge Treatment facility in 2009 after he was transferred from the emergency room at Brooke Army Medical Center. These are statements of fact and not conjecture. He was clearly on active duty in 2009 and was clearly not given the diagnosis for which he is now rated by the VA as being a service-connected disability. This amounts to nothing less than a classic misdiagnosis. He can only speculate as to why he was labeled as having atypical depression and not bipolar disorder, but speculating as to the reason for the lack of diagnosis is not important. What is important is that he had many symptoms of the disorder and he is now diagnosed with and treated for that disorder. This disorder is what he had during his active duty time that went misdiagnosed as atypical depression and contributed to his misconduct. Therefore, the characterization of his service should be corrected to account for that condition and his DD Form 214 should show an honorable discharge due to a condition interfering with duty. He has no other recourse for this misdiagnosis, thus upgrading his characterization of service is his only recourse to allow his children to get their post-9/11 GI Bill benefits. 21. The applicant provided multiple Standard Forms 600, wherein he annotated with arrows and circles portions of the documents to show reference to the following prescription medications and medical notes on the following dates: * 6 April 2009: lithium carbonate, Wellbutrin, and Trazodone * 17 June 2009: lithium carbonate * 25 August 2009: medical note states his medications were reviewed; no medication list desired; the applicant reported currently being treated for depression with medication and counseling on a regular basis * 20 October 2009: medical note states the applicant requested refills for Wellbutrin, Lamictal, and lithium; he reported continued compliance, clinical efficacy, and absence of adverse effects * 10 August 2010: medical note states the reason for his visit is to in-process the post; he reported a history of atypical depression well controlled with current medications * 22 January 2010: medical notes states the applicant agreed to repeat lithium level; contingent upon a therapeutic lithium, the provider would order screening labs on a quarterly basis * 3 February 2010: medical note states a typical depressive disorder; reviewed family/social stressors and rationale/context of the applicant’s decision to live separately from his wife to avoid enabling her dysfunctional behaviors; he recognized positive effects of is medication and is taking them as prescribed * 3 February 2010: refill Wellbutrin and verify lithium level 22. The applicant provided a VA Disability Rating document, printed on 24 August 2019, which shows he has a combined disability rating of 100 percent for the following service-connected disabilities: * bipolar disorder with PTSD symptoms, 50 percent * right knee degenerative arthritis with chondromalacia patella and residuals status post anterior cruciate ligament tear with instability and residuals status post lateral meniscus tear, 10 percent * asthma, 30 percent * left hip osteoarthritis, 10 percent * fibromyalgia, 40 percent * tinnitus, 10 percent * left upper extremity cubital tunnel syndrome, 10 percent * left shoulder acromioclavicular osteoarthritis with left shoulder impingement syndrome, 20 percent * sinusitis, 10 percent * right upper extremity cubital tunnel syndrome, 10 percent * left lower extremity sciatic nerve radiculopathy, 10 percent * varicose veins right lower leg, 10 percent * residuals status post left knee anterior cruciate ligament tear with instability, 10 percent * varicose veins left lower leg, 10 percent * intervertebral disc syndrome with spinal stenosis, 10 percent ADDITIONAL BOARD DISCUSSION: 1. At the time of the decision of the ABCMR in Docket Number AR20180016785, dated 29 August 2019, it was the intent of the ABCMR to make the applicant’s record as administratively correct as it should properly have been at the time. 2. The ABCMR’s decision in Docket Number AR20180016785 was arrived at without consideration of the additional supporting documentation provided by the applicant and addressed above. 3. After reviewing the application, all previously provided supporting documents, and all additional supporting documents, a majority of the Board found the requested relief is not warranted. A majority of the Board agreed with the conclusions reached by the Board in Docket Number AR20180016785. 4. The minority member found no error in the processing of the applicant's request for resignation in lieu of elimination, but based on the available evidence and the guidance on clemency, concluded that the characterization of his service was too harsh and should be upgraded to fully honorable. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : X : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X : X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was insufficient to warrant amendment of the decision of the ABCMR set forth in Docket Number AR20180016785, dated 29 August 2019. 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. REFERENCES: 1. On 25 August 2017 the Office of the Undersecretary 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 modification of their discharges due in whole or in part to: mental health conditions, including PTSD; traumatic brain injury; 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. 2. 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 type of court- martial. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards 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 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. 3. The National Defense Authorization Act for Fiscal Year 2010, section 512, mandated under regulation prescribed by the Secretary of Defense, the Secretary of a military department shall ensure that a member of the armed forces under the jurisdiction of the Secretary who has been deployed overseas in support of a contingency operation during the previous 24 months, and who is diagnosed by a physician, clinical psychologist, or psychiatrist as experiencing PTSD or traumatic brain injury or who otherwise reasonably alleges, based on the service of the member while deployed, the influence of such a condition, receives a medical examination to evaluate a diagnosis of PTSD or traumatic brain injury. a. In a case involving PTSD, the medical examination shall be performed by a clinical psychologist or psychiatrist. In cases involving traumatic brain injury, the medical examination may be performed by a physician, clinical psychologist, psychiatrist, or other health care professional, as appropriate. b. The medical examination required by this subsection shall assess whether the effects of PTSD or traumatic brain injury constitute matters in extenuation that relate to the basis for administrative separation under conditions other than honorable or the overall characterization of service of the member as other than honorable. c. The medical examination and procedures required by this section do not apply to courts-martial or other proceedings conducted pursuant to the UCMJ. 4. Army Regulation 600-8-24 (Officer Transfers and Discharges) provides the basic authority for the transfer or discharge of Army officer personnel. a. Chapter 4 outlines the policies and procedures for the elimination of officers from the active army for substandard performance of duty, misconduct, moral or professional dereliction, and in the interest of national security. A discharge of honorable, general, or under other than honorable conditions may be granted. b. An officer identified for elimination may at any time during or prior to the final action in the elimination case, elect one of the following options (as appropriate): * submit a resignation in lieu of elimination * request discharge in lieu or elimination * apply for retirement in lieu of elimination if otherwise eligible 5. OTSG/MEDCOM Policy Memo 12-035, dated 10 April 2012, provides policy guidance on the assessment and treatment of PTSD. a. It provides guidelines to aid clinicians in the assessment, clinical decision- making, and treatment of PTSD and related conditions and is relevant for all healthcare professionals who are providing or directing treatment services to patients with PTSD at any VA or DOD healthcare setting. It directs clinicians to use the 2010 VA/DOD Clinical Practice Guideline for the management of PTSD in the assessment and treatment of patients presenting with PTSD. b. For a diagnosis of personality disorder as part of an administrative separation process, an evaluation for PTSD is required and OTSG approval is required. For a diagnosis of adjustment disorder as part of an administrative separation process for any Soldier who has ever been deployed to an imminent danger pay area, an evaluation for PTSD is required as well as OTSG approval is required. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20190012848 8 1