IN THE CASE OF: BOARD DATE: 6 December 2023 DOCKET NUMBER: AR20230004179 APPLICANT REQUESTS: correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) by changing the narrative reason for separation from "Condition, Not a Disability" to "Secretarial Authority" with the corresponding separation authority, separation code, and reentry eligibility (RE) code. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) in lieu of DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * 200 pages of medical records * applicant's 4-page affidavit * 4 third-party statements of support 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. Counsel states: a. The applicant began serving in the United States Army in February of 2011. Prior to joining the Army, he cleared all enlistment physicals and was found qualified for service. In an unfortunate series of accidents only three months after enlisting, he tripped and fell, striking his head. The next day, he fell down a flight of stairs, losing consciousness. He was subsequently diagnosed with a traumatic brain injury (TBI), and experienced a myriad of TBI symptoms, including depression. During his military service and after he sustained the TBI, Army physicians prescribed him a hypnotic sleep aid known to cause a worsening of depression and suicidal ideation. Within a few months, he was hospitalized for an apparent suicide attempt arising from the ingestion of this sleep aid. Less than six months after his TBI and associated diagnoses, and after two hospitalizations related to suicidal ideation, the Army began processing the applicant for discharge. He was ultimately discharged on 25 January 2012. His characterization of service is honorable and the narrative reason for separation is listed as "condition, not a disability." b. The applicant's discharge from the Army was improper. His sparse medical and personnel records indicate that the Army did not follow its own regulations when they discharged him for an adjustment disorder. Although he was entitled to formal notice of specific performance deficiencies and counselling, any indicia of compliance with Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) are absent from his personnel records. Furthermore, it is apparent that he did not receive adequate treatment for his TBI, and it is likely he was misdiagnosed with an adjustment order. He certainly should never have been placed on a medication that exacerbated his TBI symptoms and led to suicidal ideations. However, he should have been given the opportunity to recover from his TBI and the side effects of this medication before he was discharged. c. Over 10 years after his discharge from the Army, the applicant continues to bear the stigma of an inequitable and improper discharge. He is concerned that the narrative reason on his discharge paperwork will impact his professional opportunities, as he has now returned to school and is working towards a professional degree and careers that require security clearances. He also has a strong commitment to service and has sought to enlist in the National Guard or Reserve, but has been informed that his discharge reenlistment code (which stems from his narrative reason for separation) effectively precludes him from serving his country. d. The Department of Defense now guides that discharge review boards give "liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions," including TBI. The applicant could not control the TBI he sustained while enlisted, the side effects of the medication he was prescribed by Army physicians and was afforded no opportunity to overcome any issues arising out of his TBI and mental health conditions. His discharge was improper and inequitable, but the limited relief he requests here, changing the narrative reason for separation and associated codes, would remedy the treatment he received. e. As part of the applicant's enlistment physical examination, he reported he had no history of any mental health conditions, diagnoses, or treatment. In fact, the enlistment medical examiner found him qualified for service, with no history of mental health symptoms or treatment, no history of suicidal ideation, no psychological or substance abuse issues, and no need for a psychological consult. f. On 7 May 2011, the applicant's first day of advanced individual training (AIT), he tripped over another Soldier's bag, fell forward, and struck his head on a wall locker. He was taken to the emergency room clinic and treated for a contusion. He was prescribed ibuprofen, instructed to monitor his symptoms, and was returned to duty. The next day, he suddenly experienced weakness and partial paralysis in his leg. He fell down a flight of stairs, losing consciousness and injuring his back. After these incidents, he experienced severe headaches, dizziness, photophobia, phonophobia, and nausea. In the days thereafter, his symptoms did not subside, and he experienced short-term memory issues and head pain. Two days after the fall, he was still in pain and reported to a provider at a follow-up appointment that he was depressed, confused, and did not know what was going on. The provider noted he was tearful and referred him for a mental health evaluation and neurology appointment. g. Upon referral to neurology, the applicant was screened, and tested positive for a TBI. He was diagnosed with post-concussion syndrome with persistent non-migrainous headaches and dyscognition. In addition to these diagnoses, he was also prescribed Rozerem, a sleeping medication. Approximately one week after the incidents, he attended a follow-up appointment and reported issues with concentration, a feeling that he was "losing it," and feeling that suicide might bring an end to his pain. He was diagnosed with depression, referred for a second time to mental health services, and his commander was informed that he needed to be seen by a mental health provider. h. The medical records show that the day after his commander was called, the applicant attended a case management appointment on 17 May 2011. This case management record refers to one previous visit with mental health services and one scheduled for the following week. A review of his complete Armed Forces Health Longitudinal Technology Application (AHLTA) medical record reflects no records of any treatment by a mental health provider during this time. i. Notwithstanding the brevity of any mental health treatment and the applicant's release from ongoing care, Army medical providers continued to fill his Rozerem (Ramelteon) prescription. The manufacturer of Rozerem warns medical providers that hypnotic sleep aids like Rozerem have been known to cause "worsening of depression, including suicidal ideation," and that it should only be prescribed after "a careful evaluation of the patient" if there is any risk that the sleep disturbance is a manifestation of an underlying "physical and/or psychiatric disorder. j. On 12 September 2011, four months after the applicant's head injury and fall, he was taken to the emergency room for an apparent suicide attempt involving the ingestion of Rozerem. The medical records from this event indicate he experienced suicidal ideation and had taken six Rozerem the night before. The emergency room physician also documented his history of a concussion with accompanying depression and insomnia. The applicant also reported to his providers during this time period, and subsequently thereafter, that he had continued to have migraine headaches since his 7 May 2011 head injury. Piecing together information from his medical records, it appears that during his inpatient stay following the apparent suicide attempt, he was prescribed Risperidone, an antipsychotic medication, which he continued to take through November of 2011. The applicant believes the Risperidone caused memory loss and effectively worsened his condition after the first hospitalization. k. The applicant was discharged from the hospital and was instructed to follow up with behavioral health and consult with a neurologist regarding his headaches. After his hospitalization, he received no support from his command, and was even scolded by a noncommissioned officer (NCO) that he was "lucky" not to be charged with drug abuse. From the end of September 2011 through the beginning of November 2011, he visited providers for right shoulder pain and did consult with a clinic regarding his migraine headaches. There, on 1 November 2011, he reported frequent thoughts of death and suicidal ideation. Prior to this, two mental health appointments had been cancelled by the facility, on 26 September and 25 October 2011. It is evident from the medical records, or the lack thereof, that he never received mental health treatment that could have provided him with the help he needed, or, at minimum, considered the side effects of the prescription drugs he was continually prescribed. l. As a result of this second perceived suicidal ideation, the applicant was escorted to the emergency room following his 1 November 2011 appointment. His medical records note from this date of service indicate a history of depression and anxiety, but the emergency room physician noted there was "no real cause" for the suicidal ideation and depression. He was once again admitted to the hospital. One week later, he underwent vision and hearing examinations in connection with a termination examination. On 30 November 2011, he completed a separation physical examination, at which time he was diagnosed with adjustment disorder with anxiety and depressed mood and cleared for administrative discharge. Notably, this record indicated that he was enrolled in behavioral health, although there are no medical records to indicate what current medication and treatment he was receiving from any behavioral or mental health provider, aside from his emergency room visits. m. During the applicant's enlistment, he was never subject to any disciplinary actions. Although he tried to be a good Soldier, he received little support from his command for his TBI. Indeed, at one point was told he was "lucky" not to be charged for drug abuse. He tried to be a good Soldier but struggled due to his brain injury and the side effects of the medications prescribed to him. His personnel records contain few documents related to the administrative separation process. There is a single memorandum relating to the requirements for a separation pursuant to paragraph 5-11 (separation of personnel who did not meet procurement medical fitness standards) of AR 635-200, but he was not separated under this paragraph. There is no evidence from his personnel file that he ever received an administrative separation board package notifying him of his rights. n. The applicant was discharged on 25 January 2012 under paragraph 5-17 (other designated physical or mental conditions) of AR 635-200, with an honorable characterization, and a narrative reason for separation of "condition, not a disability. After he was discharged by the Army, he has not sought or received any mental health treatment or diagnoses. He believes his depression and suicidal ideations were the result of his TBI and the medications prescribed by his Army providers. Once discharged, he ceased taking the medications, and has had no further mental health issues. o. Since 2012, the applicant has become a productive citizen, husband, and caregiver. He got married in 2019. He worked in the information technology (IT) field for several years, before taking a leave of absence to care for his elderly mother-in-law, who was suffering with dementia. After his discharge, he approached recruiters with the National Guard and the Army Reserve but was told any application for reenlist would likely be denied based on the reenlistment code (RE code) on his DD Form 214. He has since become a full-time student and plans to pursue a doctorate in nuclear engineering. However, he is concerned that the stigmatizing narrative reason for separation on his DD Form 214 will inhibit his ability to obtain a security clearance and may deprive him of professional opportunities in the future. p. Argument: A discharge review examines both the propriety and equity of the applicant's discharge and may effect changes if necessary. The propriety review assesses whether there was an error of fact, law, procedure, or discretion associated with the discharge that prejudiced the rights of the applicant. The equity review evaluates whether the Army applied the rules and regulations to the applicant in the same manner as it did to others in similar circumstances. In this case, his discharge was improper, and the Army erred in administratively separating him for an adjustment disorder, as it failed to follow its own regulations in connection with his discharge. Moreover, he was a good Soldier with no disciplinary history, who sustained a TBI. Taken together, this Board has both equitable and propriety reasons to change the narrative reason for separation and change the separation authority, separation, and RE code, consistent with that revision. q. The applicant's health records indicate he was diagnosed with an adjustment disorder on 17 May 2011 and the process to administratively separate him began less than six months later, in November of 2011. His personnel records are devoid of any record of counseling, nor are there any indications of his performance deficiencies. Absent this critical process, the Army failed to follow its own regulations when it separated him. r. The applicant was separated pursuant to AR 635-200, paragraph 5-17. This section provides that separation processing "may not be initiated under this paragraph until the Soldier has been counseled formally concerning deficiencies and has been afforded ample opportunity to overcome those deficiencies as reflected in appropriate counseling or personnel records." The counseling requirements of AR 635-200 mandate that "the commander will ensure a responsible official formally notifies the Soldier of his/her deficiencies," requires at least one formal counselling session before separation proceedings may be initiated, and there must be evidence "that the Soldier's deficiencies continued after the initial formal counseling." Counseling must be comprehensive, and it must be recorded in writing on DA Form 4856 (Developmental Counseling Form). Notably, the "Soldier's counseling or personal records must reflect that he/she was formally counseled concerning his/her deficiencies and given a reasonable opportunity to overcome or correct them." As referenced above, there is no indication he was ever informed of his performance deficiencies or was given the opportunity to overcome them. Likewise, there is no record of any formal counseling that would demonstrate compliance with AR 635-200. s. Adjustment disorder is temporary, and once the stressor or its consequences have terminated, the symptoms do not persist for more than an additional six months. At least one court has found that the decision to separate a Soldier for an adjustment disorder, without giving him up to six months of time to recover, violates AR 635-200. In so reasoning, the district court in Cowles concluded that the language in paragraph 5-17 requires "ample opportunity" to overcome deficiencies. It further found that the symptoms of adjustment disorder are not valid grounds for separation unless they are recurrent. Also, the district court in Cowles recognized that the Army's own regulations "set a policy heavily in favor of rehabilitating Soldiers," and "invoke the standards of the medical community." t. Here, the Army violated its own regulations when the applicant was separated for an adjustment disorder. Not only is there no record of any counseling as required by paragraph 5-17, and there is only a passing reference to an adjustment disorder diagnosis on 17 and 18 May 2011. Yet the Army began the process to separate him approximately six months later, in November of 2011. The record suggests that his command did not afford him any meaningful counseling, nor did it allow him the opportunity to try to improve his behavior and mental health with treatment or even inform him that improvement was required. Without any indicia of at least one formal counseling session, any evidence that he was given an opportunity to cure any deficiencies, and with no notice of the specific allegations on which his administrative separation was based in his personnel records, it is plain the Army failed to follow its regulations when it separated him. On this basis alone, the Board should revise his records as requested. u. The applicant's discharge was improper because it appears to have been based on a diagnosis of adjustment disorder, when in fact, he had sustained a TBI. His symptoms of this severe brain injury included depression, but noticeably absent from his health records are clinical notes, a history of visits, or other records to show he received adequate mental health treatment. Instead, he was prescribed medication that caused significant, adverse side effects. He hit his head on 7 May 2011 and the following day he fell down a flight of stairs and briefly lost consciousness. He was referred to the TBI clinic, underwent testing, and screened positive for a TBI. Following this series of incidents, he demonstrated many TBI symptoms, including depression, issues with concentration, and post traumatic headaches. He was prescribed a hypnotic sleep aid, Rozerem, which warns that the medication can cause the worsening of depression and suicidal ideation. v. The facts of the case suggest the Army may have misdiagnosed the applicant with an adjustment disorder and did not properly treat him for his TBI or residuals of his TBI as he was prescribed at least one medication that had an adverse effect on his behavior and ability to function. The medical records are scant on details and analysis. Those available list adjustment disorder with a depressed mood as early as 17 May 2011, but there is no support for this diagnosis, as it is simply listed as a problem in his physical therapy records. Indeed, the predischarge physical administered on 30 November 2011, provides no support for the adjustment disorder diagnosis. All it shows is that the physician met with him for 20 minutes, and that he was diagnosed with adjustment disorder with anxiety and depressed mood. While he may have been experiencing symptoms of depression and anxiety, these symptoms were likely caused by his underlying TBI. TBI and mental health conditions like anxiety and mood disorders are not subject to administrative separation under AR 635-200. It further noted that he was "pending chapter 5-11." w. However, the applicant was found to be qualified for service at his pre-enlistment physical, with no indication of any psychological or other mental health conditions. The reference to "chapter 5-11" is yet another example of the barely cursory consideration of his condition and subsequent administrative separation. The separation physical report does not indicate his medical history was reviewed, whether alternate diagnoses were considered, or how he was tested for an adjustment disorder. He may not have had an adjustment disorder, and the absence of sufficient medical records substantiating this diagnosis indicates it was improper and inequitable for the Army to have discharged him on this basis. Therefore, a revision of the narrative reason for discharge is warranted. x. The applicant's file does not include any documented misconduct. There are, as mentioned above, no counseling records or indication that his command took issue with his service. He was a good Soldier, who tried his best. The absence of any letters of reprimand justifies further consideration of equitable relief. Equitable relief is also warranted under Department of Defense Guidance, including both the Kurta and Wilkie memoranda. y. The Kurta memorandum provides guidance for the discharge review boards in considering requests by veterans for modifications of their discharges "due in whole or in part to mental health conditions," including TBI or other mental health condition. The boards are guided to give " [l]iberal consideration" to veterans petitioning for discharge relief when the application is based, in relevant part, on a TBI or adjustment disorder. The Board should consider that his mental health conditions, including a TBI and related symptomology, were the circumstances that resulted in his discharge for a "condition not a disability." Even if the Board credits the adjustment disorder diagnosis, this too is a mental health condition, and it formed the sole basis for his discharge. When applying the guidance from the Kurta memorandum, the Board should consider the effects of this TBI and subsequent mental health disorders when reviewing his discharge status. z. In addition, the Wilkie memorandum guides the boards to consider "fundamental fairness" when deciding whether to grant relief This guidance provides a number of different factors for the boards to consider, including punishing only to the extent necessary and favoring second chances rehabilitation of the applicant, changes in policy if the service member would be expected to receive a more favorable outcome than previously received, requests for relief based on mental health conditions, and whether the change in narrative reason would not result in benefits. aa. The applicant's post-discharge conduct has been impeccable. He has not been diagnosed with an adjustment order, or any other mental health condition post- discharge. In fact, his life after discharge indicates that he has been rehabilitated to the greatest extent possible and only wishes to pursue additional achievements and service, but he is hindered due to his discharge narrative. It is also apparent that his treatment and discharge would have been considered differently today than it was in 2011 in light of the changes in Department of Defense guidance. He committed no misconduct: he sustained a TBI and was prescribed medication that caused or exacerbated his mental health condition. bb. Changing the applicant's narrative and granting the relief requested herein would not result in the payment or grant of any additional benefits to him. He only seeks the relief requested because the narrative reason for discharge is likely to affect his future career, including the ability to obtain a clearance, and has prevented him from entering the Army Reserve. When considering the Kurta memorandum guidance, and the factors from the Wilkie memorandum, relief is warranted and granting the relief requested would ensure he is treated with fundamental fairness. cc. Conclusion: Although the applicant has overcome the effects of his TBI and mental health condition arising out of the accidents he sustained while enlisted, the narrative reason for his discharge continues to affect his life. He is burdened by the circumstances of his discharge, concerned about his future employment opportunities requiring any kind of clearance, and has not been able to serve the United States in any reserve capacity. Albeit brief, his medical records and personnel history show that he was likely diagnosed and discharged improperly. He did not receive the treatment he should have for his TBI, and he was prescribed a medication that had disastrous consequences. Without any opportunity for counseling or complete treatment, he summarily began to be processed for discharge less than six months after he was first diagnosed with an adjustment disorder. Moreover, the record clearly shows that his TBI and mental health conditions should be seen as mitigating factors. dd. For the foregoing reasons, the applicant respectfully requests that the Board change his narrative reason for separation from "Condition, Not a Disability" to "Secretarial Authority;" and change the separation authority, separation code, and RE code consistent with that revision. 3. The applicant enlisted in the Regular Army on 22 February 2011. 4. The applicant's separation proceedings are not available. A search of the U.S. Army Human Resources Command (AHRC) Interactive Personnel Electronic Records Management System (iPERMS), the Army's authorized personnel records repository for the Army Military Human Resource Record, failed to locate his separation proceedings. 5. The applicant's record in the AHRC Soldier Management System – Web Portal, shows he inquired to AHRC on 8 June 2020 about his missing records. He was advised by AHRC that if there seems to be records missing, the units are/were responsible for filing documents in the service records. If this was not accomplished properly at the unit level, AHRC will not have copies of his documents. 6. The applicant's DD Form 214 shows he was honorably discharged on 25 January 2012. The DD Form 214 further shows in: * block 25 (Separation Authority), AR 635-200, paragraph 5-17 * block 26 (Separation Code), "JFV" * block 27 (Reentry Code) "3" * block 28 (Narrative Reason for Separation), Condition, Not a Disability" 7. In a 4-page affidavit, the applicant states: a. He enlisted in the Army on 22 February 2011 and was sent to basic combat training (BCT). After completing BCT, he was sent to AIT. During AIT, on 7 May 2011, he tripped while running and hit his head on a wall locker, sustaining a contusion. The next day he lost the feeling in his legs and fell down a flight of stairs, losing consciousness. He can recall that following his brain injury, he had headaches, trouble sleeping, problems with concentration, and felt depressed. He cannot recall many details from this period of time, but the Army issued him at least one medication, a sleeping aid, which he took as instructed and he was able to complete AIT. He was then transferred to his duty station at Fort Bliss, TX. b. He does not recall receiving any specific mental health treatment following his brain injury, except speaking to a psychiatrist very briefly for approximately 20 minutes. A few months after arriving at Fort Bliss, he took the sleeping medication that was prescribed to him and did not wake up on time the following morning. He woke up disoriented and was taken to behavioral health and admitted to the hospital. This hospital admission really affected him, as he did not understand what was going on, or why he was experiencing certain symptoms, including depression. c. During his hospital stay in September of 2011, he was prescribed additional medication and began to experience memory loss. He believes the additional medication worsened his symptoms and his overall ability to function. He can recall that after the hospital stay, a corporal (CPL) would provide him with the medication prescribed each morning and the CPL indicated he was displeased with having to provide him with this medication. This displeasure was indicated constantly until his discharge. He also recalls that an NCO told him that he was lucky not to be charged with drug abuse from taking the sleeping medication that led to his hospital stay. This particular NCO was high ranking, brigade level, and he made this statement he believes around the time of his discharge. d. He had never experienced suicidal thoughts until after his brain injury and after taking the medications that were prescribed to him by the Army. He recalls that he was hospitalized a second time for suicidal ideation and the discharge process began shortly after that. He does not recall any disciplinary actions or counselling from senior officers. He also does not recall specific counseling related to an adjustment disorder, TBI, or some other mental health condition, including any deficiencies caused by these conditions. He believes that at all times, he was trying his best to be a good Soldier and serve his country. He wanted to succeed in the Army but had experiences that he was unable to control. He believes that his symptoms and behavior were a result of his head injury and the medications he was instructed to take after the head injury. e. After he was discharged, he stopped taking the medications that the Army had prescribed to him. He has not experienced any suicidal thoughts or depression since 2011. He has not been treated by any mental health providers since his discharge. He has not had any form of migraine headache since the end of 2011. After his discharge from the Army, he began working in the IT field and he was able to lead a stable, productive life. He got married and continued working until his mother-in-law, who suffered from early onset Alzheimer's, required full time care. He stopped working at that time to become her full-time caregiver. Since that time, he has gone back to school, and he is in the process of obtaining an associate's degree. His plan is to obtain a bachelor's degree and then pursue a doctorate in nuclear engineering. f. He has talked to several recruiters regarding reenlisting in the National Guard or Army Reserves. He has been told that his discharge reason and RE code will cause any reenlistment application to be rejected. He believes that the narrative reason for his discharge is stigmatizing and has impacted his ability to serve his country through in the National Guard or Army Reserve. He also believes that it will prevent him from obtaining security clearances, which are required for many professional roles related to nuclear engineering. g. He understands that his record of service is short, but he served the Army honorably and to the best of his ability. He experienced a series of unfortunate accidents resulting in a brain injury and he was prescribed medication that impacted his behavior and worsened the symptoms he experienced after the brain injury. All of those symptoms and issues resolved not long after he was discharged, when he stopped taking the medications prescribed to him by the Army. He has gone on to lead a productive post-service life. He is seeking only a change in the narrative reason for his discharge, and the associated codes, in order to continue to lead a productive life without the continued effects of a time period when he was suffering from a brain injury and mental health conditions related to injuries he sustained during service and medications he was prescribed by the Army. 8. The applicant provided four third-party statements of support attesting to his positive character traits and post-service accomplishments. The complete statements of support were provided to the Board for their review and consideration. 9. MEDICAL REVIEW: a. The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (EMR) (AHLTA and or MHS Genesis), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: The applicant has applied to the ADRB requesting through counsel: “Mr. [Applicant] respectfully requests that the ADRB change his Narrative Reason for Separation from "Condition, Not a Disability" to "Secretarial Authority;" and change the Separation Authority, Separation, and Reentry Codes consistent with that revision.” He notes on the DD Form 293 that TBI and Other Mental Health issues are conditions related to his request. b. The Record of Proceedings outlines the applicant’s military service and the circumstances of the case. The applicant’s DD 214 he entered the regular Army on 22 February 2011 and received an honorable discharge on 25 January 2012 under the separation authority provided by paragraph 15-17 of AR 635-200, Active Duty Enlisted Administrative Separations (17 December 2009): Other designated physical or mental conditions. Paragraph 5-17 of AR 635 200 authorizes discharges for conditions which interfere with military service but are not service incurred disabilities. From paragraph 5-17a: “Commanders specified in paragraph 1–19 may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability (AR 635–40) and excluding conditions appropriate for separation processing under paragraph 5–11 or 5–13 that potentially interfere with assignment to or performance of duty. Such conditions may include, but are not limited to— (1) Chronic airsickness. (2) Chronic seasickness. (3) Enuresis. (4) Sleepwalking. (5) Dyslexia. (6) Severe nightmares. (7) Claustrophobia. (8) Other disorders manifesting disturbances of perception, thinking, emotional control, or behavior sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired.” c. The main medical arguments submitted by counsel are that the applicant’s mTBI was not correctly treated by his providers, that his medications of ramelteon prescribed in May 2011 and risperidone prescribed in September 2011 were causes for his mental health issues and suicidal ideations, and that his TBI was misdiagnosed as adjustment disorder. d. The applicant’s pre-entrance Report of Medical History and Report of Medical Examination show he was in good health, and without significant medical history or medical conditions. e. The EMR shows the applicant likely sustained a mild traumatic brain injury (mTBI) on 7 May 2011 when he “ran into a wall locker, headfirst. Immediately after, he felt flush and dizzy.” This resolved and his initial headache was much improved when he was evaluated 4 hours after the injury. However, the following morning while walking down a hallway, his left leg gave out and he fell: “He reports that yesterday he hit his head pretty hard and had a headache. He states that when the headache got to bed, he came to the emergency department. Was seen and given ibuprofen and discharged. This morning he got up and states that his legs felt somewhat funny. After some time being awake and about that his legs began to become numb and he could not feel them. He states he was walking in the hallway of his barracks and his left leg gave away. He fell to the ground landing hard on his back.” f. He was subsequently admitted to the hospital for evaluation of leg paralysis of unknown etiology. CT’s and MRI’s of his head and lumbar spine were negative and he was discharged the following day. g. He was seen in follow-up for his concussion at this troop medical clinic (TMC) on 10 May 2011 and evaluated by neurology on 13 May 2011: “The patient denies loss of consciousness associated with his initial head trauma and has never had any of these symptoms previously. He continues to have difficulty with short-term memory, left frontal head pain, which he describes as sharp, non-pulsating and unassociated with migrainous features and chronic lower back pain. His strength is said to be normal.” Most of his neurological examination was normal except for some difficulties with cognition: “The patient is able to score 27 out of a possible 30 on the Folstein mini mental state examination. He misses the date and the county. He also has difficulty with attention and calculation, though he has a high school diploma and was planning to start college prior to joining the Military. He is able to spell the word "world" backwards without difficulty. He is only able to recall two of three unrelated objects.” ASSESSMENT: Post-concussion syndrome with persistent non-migrainous headaches and dyscognition. Probable lumbar sprain. I believe that the patient's lower extremity symptoms were probably related to either brain or spine trauma. PLAN: He will be scheduled for physical therapy to address his chronic lower back pain. I will give him a prescription for Fioricet tablets to take for his headaches. Today, the patient describes difficulty with sleeping and he will be given Rozerem, 8 mg tablets for that. I do not feel that he is capable of starting routine physical training until physical therapy and seen and cleared him. I have told him that should his dyscognition persist, detailed neurocognitive testing and a referral for cognitive speech therapy may be required.” h. His 9 June 2011 TBI Nurse Case Management (NCM) encounter shows neurology had previously released him to return to advanced individual training (AIT) and he was doing well: “This SM [service member] had follow up appointment with this NCM today and reports that he continues to do Sudoku search -puzzle and word - search as recommended by this NCM and reports that he has no short-term memory difficulty anymore. SM proudly reports that he had on first test 100% and the second test 92% at AIT. SM reports that he only has some discomfort to his back and continued to follow-up with Physical Therapy. SM was released from Neurologist to regular AIT training …” i. Following repeat psychological testing for his mTBI on 14 June 2011, the applicant was diagnosed with adjustment disorder with the provider opining his retention would depend on an improvement in his symptoms: “RETENTION POTENTIAL: Currently, Soldier does not present with a psychopathology that warrants legal disposition. Soldier meets the retention standards prescribed in Chapter 3, AR 40-501, and there is no psychiatric disease or defect which warrants disposition through medical channels. Separation does not appear to be warranted at this time but may need to be considered in the future. Since retention is based upon a Soldier’s ability to reliably cope, adjust, and perform to standard it appears that Soldier is currently adapting at a successful rate. Soldier appears psychologically capable of remaining in the service and successfully completing training or upcoming duty assignment if the current symptoms he is experiencing clear. Suggest a trial of training to allow command to see Soldier perform in the work environment with his current struggles. If Soldier persists in remaining emotional, distracted, or unmotivated to the point he fails to meet retention standards or his reliability remains unstable by weeks 3 or 4 then he is not likely to make the necessary adjustments required to be successful in the service. Recommend Soldier be considered for some form of administration discharge deemed appropriate by command (a chapter 11, 5-13, 5-17), should this pattern of disruption or conflict continue ... Soldier is psychiatrically cleared to return to his unit. Additionally, he is cleared to fully participate in any training or cooperate with any administrative action deemed appropriate by command.” j. Notably, the applicant reported sleeping well and was not on any sleep medication, i.e. Rozerem, at the time. k. The applicant was released from TBI case management by his NCM on 1 July 2011: “This SM was released for full duty by physical therapy. SM recovered well, no longer needs assistance from TBI NCM. Closed to case management.” l. On 12 September 2011, the applicant was escorted to the medical clinic after taking 7 sleeping pills: 21-year-old active-duty SM escorted by NCO (CPL .) after being informed by unit 1SG that SM intentionally ingested x 7 "sleeping pills" (Ramelteon). SM had empty bottle with him. SM states did it because his headache was causing him intense pain and he just wanted for it to stop. m. He was escorted to the emergency department at William Beaumont Army Medical Center (WBAMC) and subsequently admitted for four days. From a walk-in triage encounter with a mental health provider on 26 September 2011: “Seen as walk-in triage. Complaining of increased anxiety, worrying, feeling on edge. Difficulty relaxing. Has always been a worrier. Denies depression. SM was hospitalized on 11 west 12-16 Sept following overdose on 7 tabs of Rozerem [Ramelteon]. Placed on Celexa 20 mg daily and risperidone 1mg at night. Sleep over-sedating with risperidone. Appetite good. Decreased concentration. SM reports has been experiencing increased stressors. Occupational stressors, "busy work", MOS is stressful. He had wanted to enter intelligence field but came in artillery due to no openings. MOS "alright' but does not enjoy it that much. Struggling with how controlling the military is. Does want to stay in and make it a career. Reminds him of his mother who was very controlling while growing up. Also dealing with upcoming anniversary of his father’s MVA [motor vehicle accident x 2 years ago. He was involved in head on collision. Was present after accident. His unit has been monitoring his meds ... ADJUSTMENT DISORDER WITH ANXIOUS MOOD: Unit in the field, SM unsure if they would be coming to get him. They are overseeing his meds. Has enough through tonight. Unsuccessful attempt to contact unit. They are his primary support system. Denies suicidal/homicidal ideations. Is to decrease risperidone 0.5mg po at night as needed for insomnia x one dose tonight. Feels the one mg dose over- sedates. Will have him come back in the a.m. with NCO to coordinate his med supervision. Plan on increasing Celexa 30mg/day.” n. He was seen in the emergency department on 27 September 2011 for increasing anxiety: “Was given anxiety meds but feels they are making his anixiety worse. Needs something else to help him relax.” He was released from the emergency department and placed on 48-hour quarters. o. He was seen by behavioral health on 12 October 2011 after which his diagnosis was “Adjustment disorder with mixed emotional features.” “Being upset by problems at home or work 'I JUST HATE WHERE I'M AT WITH WORK, HATE THE JOB AND THE ENVIRONMENT ‘'WOULD LIKE TO DO SOMETHING DIFFERENT IN THE ARMY, NOT WHAT I WANT TO DO FOR THE REST OF MY CONTRACT'. Interpersonal relationship problems 'A FEW GUYS I WORK WITH'.” p. On 14 October 2011, the diagnosis of dysthymic disorder was added by a clinical psychologist: “The patient reported that he was hospitalized on 11 West at WBAMC in September following a drug overdose with suicidal ideation. The patient reported that he initially began thinking of suicide at age 12 or 13. He noted that his parents divorced when he was very young, but when living with his biological mother she was very controlling and emotionally abusive. The patient noted that this was very difficult. He denied any history of self-mutilation. He denied any other history of suicidal behavior. The patient reported that he has felt depressed for many years. He noted, “I think it’s been my whole life.” The patient noted that he feels depressed almost every day. He commented, “I don’t think about killing myself, but I often don’t want to wake up.” The patient reported that he hides these feelings at work. He noted, “I sort of put on a show at work.” The patient reported that when depressed he feels depressed more days than not, for most of the day, and onset was in early teens.” q. His 24 October 2011 behavior health encounter shows continued difficulties with adjusting to the military: “SM seen as walk-in triage, referred by his therapist to re-evaluate his meds. SM reports has been having ongoing thoughts "not wanting to be alive", "thoughts of death" but no desires to act out. Thinking about using belt with his Gerber to "choke myself'. Walk into traffic. This has been an ongoing theme since his hospitalization. Constant struggle but no desires to act out. "I can control them." Recently dx dysthymia. SM reports has always struggled with depression and anxiety since his youth. This was related to mixed messages he would receive from his mother. Feels she stifled him emotionally. "I'm 21 but I feel like a young teenager." Risperidone effective for insomnia.” r. He was seen in the emergency department for depression with suicidal thoughts on 1 November 2011 and again admitted to the hospital. The length of this hospitalization is unknown but he was seen in an outpatient setting for unrelated issues on 8 November 2011. s. His final behavioral health encounter was on 7 December 2011 after which his diagnosis remained dysthymic disorder: “Patient reports he is uncertain why he has this appointment as he is anticipating going home on 15 December 2011. This is a follow-up appointment today, patient previously was on 11 West. He says he has been feeling much better since talking with others & starting medication. Says obsessive thoughts have cleared up & he is feeling more happy than he had been. Says he was told he has dysthymia & had had it for quite some time. Says he is looking forward to his future, planning to go to school & work in the IT field. Moving to Bullhead City, AZ to join family. Today we discussed some of the practical issues related to his transition including community resources. Reviewed safety plan. Agreed that this would be last contact unless patient’s situation changes or he needs services before he separates.” t. Neither the applicant’s separation packet nor documentation addressing his involuntary administrative separation were submitted with the application or uploaded into iPERMS. u. JLV shows he is a non-service-connected Veteran and has not been receiving care at Veterans Hospital Administration facilities. v. The main medical arguments submitted by counsel were that the applicant’s mTBI was not correctly treated by his providers, that his medications of ramelteon prescribed in May 2011 and risperidone prescribed in September were causes for his mental health issues and suicidal ideation, and that his TBI was misdiagnosed as adjustment disorder. w. The evidence shows: 1. The applicant was treated for his mTBI by neurology and followed by a TBI NCM, “recovered well,” and was returned to full duty following the injury. In June 2011, “SM proudly reports that he had on first test 100% and the second test 92% at AIT.” 2. The applicant was prescribed and received 30 tablets of Ramelteon on 13 May 2011. He did not use any of the three refills. Thus, without chronic use, it is highly unlikely this medication was a contributing factor to his suicidal ideations and depressed mood in September 2011. 3. The applicant was prescribed and received 30 tablets of risperidone on 16 September 2011 with one refill which was never used. He was prescribed just one (1) 0.5 milligram tablet of risperidone on 26 September 2011. There were no refills. While a side effect of this medication is problems with memory, there is no evidence the applicant experienced this side effect. 4. The applicant’s final diagnosis was dysthymic disorder. This is a condition which the applicant stated he likely had well before entering the Army: “SM reports has always struggled with depression and anxiety since his youth.” He had also stated he had first thought about suicide at age 12 or 13. Despite this, the applicant marked “No” to all the behavioral health questions on his pre- entrance Report of Medical History.” x. It is the opinion of the ARBA Medical Advisor that the requested changes to his DD 214 are unwarranted. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board through counsel carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review through counsel oof the applicant’s petition, available military records and medical review, the Board concurred with the advising official finding correction of his DD Form 214 by changing his narrative reason for separation from "Condition, Not a Disability" to "Secretarial Authority" with the corresponding separation authority, separation code, and reentry eligibility (RE) code is not warranted. The Board determined this is insufficient evidence to support the applicant’s counsel contentions that he was improperly discharged. Based on the preponderance of evidence and the medical opine regarding the applicant’s behavioral health issues, the Board agreed correction of his narrative reason, separation code and reentry eligibility (RE) code is without merit. The Board found no error or injustice and denied relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 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. 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. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. The regulation in effect at the time of the applicant's separation, dated 6 June 2005 and revised in September 2011, states in: a. Paragraph 5-3 (Secretary Plenary Authority), separation under this paragraph is the prerogative of the Secretary of the Army. Secretarial plenary separation authority is exercised sparingly and seldom delegated. Ordinarily, it is used when no other provision of this regulation applies, and early separation is clearly in the best interest of the Army. Separations under this paragraph are effective only if approved in writing by the Secretary of the Army or the Secretary’s approved designee as announced in updated memoranda. Secretarial separation authority is normally exercised on a case-by-case basis. b. Paragraph 5-17, commanders may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability per AR 635–40 (Disability Evaluation for Retention, Retirement or Separation) and excluding conditions appropriate for separation processing under paragraph 5-11 (Separation of personnel who did not meet procurement medical fitness standards) or 5–13 (Separation because of personality disorder) that potentially interfere with assignment to or performance of duty. Such conditions may include, but are not limited to chronic air or seasickness, enuresis, sleepwalking, dyslexia, severe nightmares, claustrophobia, other disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier’s ability to effectively perform military duties is significantly impaired. (1) Soldiers with 24 months or more of active-duty service may be separated under this paragraph based on a diagnosis of personality disorder. (2) Medical review of the personality disorder diagnosis will consider whether post-traumatic stress disorder (PTSD), TBI, and/or other comorbid mental illness may be significant contributing factors to the diagnosis. If PTSD, TBI, and/or other comorbid mental illness are significant contributing factors to a mental health diagnosis, the Soldier will not be processed for separation under this paragraph but will be evaluated under the physical disability system in accordance with AR 635-40. (3) When a commander determines that a Soldier has a physical or mental condition that potentially interferes with assignment to or performance of duty, the commander will refer the Soldier for a medical examination and/or mental status evaluation in accordance with AR 40-501 (Standards of Medical Fitness). A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition. (4) Separation processing may not be initiated under this paragraph until the Soldier has been counseled formally concerning deficiencies and has been afforded ample opportunity to overcome those deficiencies as reflected in appropriate counseling or personnel records. 3. AR 635-5-1 (Separation Program Designator (SPD) Codes), prescribe the specific authorities and the reasons for the separation of members from active military service and the SPD codes to be used for these stated reasons. The regulation in effect at the time of the applicant's discharge states the SPD code JFV, as shown on the applicant's DD Form 214, specified the narrative reason for discharge as "Condition, Not a Disability" and the authority for separation under this SPD code was AR 635-200, paragraph 5-17. The same regulation states that SPD code JFF, pertains to enlisted Soldiers separated by reason of Secretarial Authority under the provisions of AR 635-200, paragraph 5-3. 4. The SPD Code/RE Code Cross Reference Table shows that a Soldier assigned an SPD Code of "JFV" will be assigned an RE Code of 3. When the assigned SPD code is JFF, the Headquarters, Department of the Army directive authorizing the separation program, or specific separation, will provide the RE code. 5. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard. The regulation provides that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records and the reason for separation. Table 3-1 provides a description of the RE codes. * RE-1 applies to persons completing their term of active service who are considered qualified to reenter the U.S. Army * RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable 6. AR 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record. Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 7. 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 Service Discharge Review Boards and Service Boards for Correction of Military Records when considering requests by veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; 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 to 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. 8. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230004179 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1