IN THE CASE OF: BOARD DATE: 16 February 2023 DOCKET NUMBER: AR20220007809 APPLICANT REQUESTS: in effect, correction of her records to show she was discharged due to a service-connected medical disability. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (VA) summary of benefits FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, in effect, her request is based on her 100% disability rating by the VA for post-traumatic stress disorder. 3. The applicant enlisted in the Regular Army on 4 October 1977. 4. The applicant records contain an AE Form 113-7-R (Alcohol and Drug Abuse Prevention and Control Program Progress Report), dated 10 August 1980, that shows she was mandatorily referred to the Community Drug and Alcohol Assistance Center (hereinafter referred to as the Army Substance Abuse Program (ASAP)) on 13 March 1980 for alcohol abuse. The form also shows the counselor indicated that recently, the applicant's performance deteriorated, she was drinking, and she was missing formations. The commander recommended she be declared an ASAP failure and discharge from the Army. The counselor agreed with the commander's recommendation. 5. On or around 12 August 1980, the applicant was informed by her commander that he was initiating action to discharge her from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 9 (Separation for Alcohol or Other Drug Abuse). The commander stated his recommendation was based on the applicant's referral to the ASAP for alcohol abuse and that since her referral, she was involved in numerous incidents all of which were alcohol related. The applicant was also advised of her right to consult with legal counsel and to submit statements in her own behalf. 6. The applicant acknowledged receipt of the notification concerning the proposed separation and she also acknowledged she was aware of her right to consult with legal counsel. She declined consultation with legal counsel and did not submit statements in her own behalf. 7. On an unspecified date, the separation authority approved the separation action under the provisions of Army Regulation 635-200, chapter 9. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was honorably discharged on 4 September 1980 by reason of Alcohol or Other Drug Abuse. 8. The applicant provided a VA summary of benefits showing she was given a 100% disability rating for unspecified service-connected disabilities. 9. MEDICAL REVIEW: a. The applicant is applying to the ABCMR requesting, in essence, correction of records to show she was discharged due to service-connected medical disability b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: (1) Applicant states, in effect, her request is based on her 100% disability rating by the VA for PTSD. (2) She enlisted in the RA on 4 October 1977. (3) Records indicated that she was she was referred to ASAP on 13 March 1980 for alcohol abuse; records note performance had deteriorated, she was drinking and missing formations. Commander recommended she be declared ASAP failure and discharge from Army and counselor agreed with recommendations. (4) Records indicate that since her referral to ASAP she was involved in numerous incidents all of which were alcohol related. (5) Her DD214 shows she was honorably discharged on 4 September 1980 by reason of alcohol or other drug abuse (AR 635-200 Chapter 9). c. Supporting Documents All supporting documents reviewed. Lack of citation or discussion in this section should not be interpreted as lack of consideration. DD Form 149 references PTSD associated with her application. She provides a Department of Veterans Affairs letter dated 20 May 2022 showing she is 100% SC overall, permanent and total as of 19 July 2005. DA Form 113-7-R reviewed in ROP, indicates referral to ASAP 6 March 1980 and appears to show treatment from 13 March 2008 to 8 August 1980; records indicate concerns over “suicidal tendencies,” an overdose of Antabuse pills, multiple admissions to (presumed to be an inpatient substance or psychiatric facility), and ongoing concerns related to alcohol use and performance issues to include AWOL. Commander recommended Chapter 9 separation for rehabilitation failure and counselor agreed. d. AHLTA The Army electronic medical record, AHLTA, was not reviewed; it was not an existing EMR at the applicant’s time of service. e. JLV Available VA records were reviewed via JLV. Records indicate applicant has a service connection for PTSD (100%). She is also 10% service connected for thrombosis of the brain. Her VA medical records are extensive and will not be exhaustively summarized. Compensation and Pension Evaluation dated 26 October 2017 indicates diagnosis of PTSD and a history of stroke in 2010; PTSD was the result of Military Sexual Trauma. Prior exam of 19 September 2012 and references MST as the index Criterion A trauma for her PTSD diagnosis. She also met criteria for alcohol dependence in full sustained remission, noting alcohol use over time as avoidance of painful memories and emotions. Per history, “she reported that since she was assaulted in the military, she has sexual difficulties with men and has been in 3 volatile and abusive marriages” in which she sustained injuries. She attributed a stroke to anger and hypertension associated with her PTSD. “She has been unable to work since the beginning of 2009 due to PTSD (negativity, irritability, distrust, poor sleep and concentration, anxiety, subsequent alcohol use to manage symptoms). She also suffered a stroke in 2010 which would make returning to work even more difficult.” Her VA mental health care dates back to at least April 2005 at which time she presented seeking detox from alcohol and, at the time, was homeless and unemployed; she became homeless after leaving an abusive boyfriend who threatened her with a knife. She reported being “gang raped” in 1978 with subsequent hospitalization for attempted OD on pills, placed on psychotropic medication, and having intermittent auditory hallucinations since that event (advisor’s note: no Army inpatient psychiatric records were available for review). MH Admission Note of 4 May 2005 indicates a history of sexual trauma while in the military and being admitted to a military hospital in Wurtzburg, Germany in 1981 after attempted OD (advisor’s note: potential date error in report or documentation, as her military service, per records, ended prior; other VA documentation references a hospitalization in 1980). She was admitted for inpatient care (primarily detox) associated with PTSD and alcohol abuse in February 2017. Psychology Note dated 23 January 2020 referenced various inpatient admissions over time for both psychiatric and substance abuse reasons, starting with the suicide attempt by OD after the sexual assault in the Army; a 90-day rehab in in 1981; another 90-day rehab in 1988; a 30-day rehab in 1994; and multiple programs in 2005. f. Other Query of HAIMS did not return any documents for this applicant. There is no evidence that at the time of active service the applicant was diagnosed with a potentially unfitting condition per AR40-501; that she was placed on a profile for a psychiatric condition; or that she was referred for an MEB/PEB for a psychiatric (or other) condition. Kurta Questions: 1. Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant asserts PTSD associated with the circumstances of her discharge, and records indicate she is 100% service connected for PTSD. 2. Did the condition exist or experience occur during military service? Yes. The applicant’s assertion is supported by her 100% service connection for PTSD and active service records suggestive of psychiatric impairment. 3. Does the condition or experience actually excuse or mitigate the discharge? Yes. The applicant asserts mitigation due to PTSD at the time of her discharge, and he has been awarded 100% VA service connection for PTSD secondary to MST. Applicant cites her VA disability rating as evidence of error in discharge and requests records amendment to show she was discharged due to disability. However, VA examinations are based on different standards and parameters; they do not address whether a medical condition met or failed Army retention criteria or if it was a ratable condition during the period of service. Therefore, a VA disability rating does not imply failure to meet Army retention standards at the time of service or that a different diagnosis rendered on active duty is inaccurate. A subsequent diagnosis of PTSD through the VA is not indicative of a misdiagnosis or other injustice at the time of service. Furthermore, even an in-service diagnosis of PTSD is not automatically unfitting per AR 40-501 and would not automatically result in medical separation processing. However, specific to this applicant, it is the opinion of the behavioral health advisor that her case should be referred to the Disability Evaluation System for further disposition and evaluation of her claim of disability. She has a well-established diagnosis of PTSD with associated service connection, and there is ample data in available documentation suggesting psychiatric hospitalization for attempted OD following her sexual trauma, although no contemporary records were available for this advisor’s review. Her substance abuse treatment records from active service reference suicide attempt and multiple admissions to “ECF,” being AWOL, spells of crying, and desire to return for inpatient care. Alcohol abuse is a common form of self-medication for those suffering from what is now known as PTSD, which did not become a formal psychiatric diagnostic category until 1980; furthermore, new onset of avoidance behaviors such as AWOL (inconsistent with prior behavioral patterns) are also consistent with the natural history and sequelae of PTSD. Applicant’s history of MST and clear evidence of significant impairment while on AD as manifested by significant alcohol use, suicide attempt, and psychiatric hospitalization(s) are suggestive of a level of impairment that would not meet psychiatric retention standards. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found partial relief is warranted. 2. The Board concurred with the conclusion of the behavioral health advisor that the medical evidence in this case indicates the applicant may have had a condition or conditions during her service that did not meet retention standards. The Board determined the applicant’s records should be referred to the Disability Evaluation System to determine if she should have been discharged or retired due to disability. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring her records to the Office of The Surgeon General for review to determine if she should have been referred to the Disability Evaluation System prior to her discharge. a. If a review by the Office of The Surgeon General determines the evidence supports referral to the Disability Evaluation System, the individual concerned will be afforded due process through the Disability Evaluation System for consideration of any additional diagnoses (or changed diagnoses) identified as having not met retention standards prior to her discharge. b. In the event that a formal Physical Evaluation Board (PEB) becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of her case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. c. Should a determination be made that the applicant should be retired for disability, these proceedings serve as the authority to issue her the appropriate separation retroactive to her original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. ? 2. The Board further determined 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 any relief without benefit of the review described above. 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. 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 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 sets forth the basic authority for the separation of enlisted personnel. Chapter 9 of the regulation in effect at the time contains the authority and outlines the procedures for discharging Soldiers because of alcohol or other drug abuse. A member who has been referred to the ASAP may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical. Initiation of separation proceedings is required for Soldiers designated as alcohol/drug rehabilitation failures. 3. Army Regulation 40-501 provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank, or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 4. Army Regulation 635-40 establishes the Army 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. It provides that a Medical Evaluation Board is convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation 40-501. The regulation in effect at time, effective 15 March 1980, states in: a. Paragraph 2-1, 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. b. Paragraph 2-2, a member being processed for separation for reasons other than physical disability is presumed fit for duty as shown by his continued performance of duty. Such a member should not be referred to a Physical Evaluation Board unless his physical defects raise substantial doubt that he would be fit were he to continue the duties of his office, grade, rank, or rating. 5. Section 1556 of Title 10, U.S. Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by ARBA be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to ABCMR applicants (and/or their counsel) prior to adjudication. 6. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220007809 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1