In June 2007, pursuant to Congressional order, a Department of Defense (DoD) Mental Health Task Force issued a report entitled, “An Achievable Vision,” assessing the mental health needs of the Armed Forces and the ability of the DoD to meet those needs. It came as no surprise to veterans advocates when the Task Force reported that “occupational exposure” in military service can cause hidden injuries for which the DoD is responsible for diagnosing correctly and treating appropriately, such as Post Traumatic Stress Disorder (PTSD) and non-penetrating Traumatic Brain Injuries (TBI).
Because these injuries are not outwardly visible (”to the naked eye”), they have to be identified by how they manifest themselves in post-deployment behavior. Essentially, according to the DoD, symptoms of PTSD and mild to severe TBI make it difficult for affected servicemembers to comply with and conform to the military’s strict code of conduct. The Task Force called this “disinhibitory” behavior and gave examples such as: a) difficulty controlling one’s emotions; b) problems completing complex tasks and managing complex stimuli; c) self-medicating with drugs and alcohol; d) engaging in thrill-seeking/reckless/high-risk behavior; and, e) disruptions in sleeping that further causes a decline in job performance.
As a result, the DoD Mental Health Task Force recommended (Recommendation 5.1.4.3) that servicemembers who are engaging in a pattern of misconduct (i.e., “disinhibitory” behavior) and who have been exposed to conditions that could cause PTSD and/or TBI (such as combat), should be referred to a Medical Evaluation Board (if at all possible) as opposed to being involuntarily and administratively discharged from the military.
The DoD stated that in these cases the servicemember could be suffering from a service-connected disability (PTSD, TBI) and thus the military had a responsibility to ensure that this disability was treated, from the DoD to the Department of Veterans Affairs (DVA). Without a medical evaluation board (and subsequent medical discharge from the DoD), there is no way to ensure continued treatment for the servicemembers combat injuries by the DVA–especially for a pattern of misconduct discharge. Meanwhile, veterans advocates know that undiagnosed or untreated PTSD and/or TBI puts veterans at an increased risk of suicide, unemployment, drug and alcohol abuse, partner violence, and homelessness.
Am I the only person who read “An Achievable Vision?”
What’s the point of the DoD recognizing that PTSD/TBI causes misconduct when it doesn’t do anything to stop pattern of misconduct discharges for soldiers with PTSD/TBI? How can it say this is evidence of a service-related disability only to use this evidence to deny servicemembers access to benefits for that disability? I like to call this the Military Misconduct Catch-22.
Sgt. Adam Boyle served in the Army for eight years, including two tours in Iraq. After his second combat tour, he returned to Ft. Bragg in the middle of 2007 and began self-medicating with alcohol. Shortly thereafter, he realized that he had PTSD and he began seeking treatment for it. Predictably, Sgt. Boyle was having problems “complying” with the “military’s strict code of conduct.” After a series of disciplinary actions for mostly alcohol-related incidents, Sgt. Boyle was diagnosed with chronic PTSD by a medical evaluation board.
One month later, Sgt. Boyle was kicked out of the Army with a “pattern of misconduct” discharge by the Commanding General, the singular deciding authority on his case. Now Sgt. Boyle has to pay back an $18,000 re-enlistment bonus and fight for VA benefits (which he won’t likely recieve with a pattern of misconduct discharge). Most importantly to his family, however, is continuing his mental health care and psychiatric medications (of which he is on several). How can he do that without an honorable discharge?
What was the point of “An Achievable Vision”? Why are recommendations made if they are not going to be followed by the very Department that made them? Or enacted by the Branch that ordered the report in the first place? As far as I can tell, they might as well never have been made at all.
To give myself a good laugh, I think about the hoopla surrounding the announcement that the DoD is now giving servicemembers a 50 percent disability rating for PTSD. Of course it is. If you have PTSD, they are probably going to kick you out for a pattern of misconduct, so you won’t be getting paid disability anyway.
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Army may end counseling notifications
By Gregg Zoroya, USA TODAY
WASHINGTON — Army leaders are proposing to end a longtime policy that requires a commanding officer be notified when a soldier voluntarily seeks counseling in hopes of encouraging more GIs to seek aid, according to Army Secretary Pete Geren.
The potential move comes as combat deployments have been linked to increased alcohol abuse, and the Army Substance Abuse Program (ASAP) is straining to keep pace.
The proposal being worked out between Army personnel and medical commanders is “an important part of a comprehensive effort to reduce the stigma associated with seeking mental health care and to encourage more soldiers to seek treatment,” Geren said in a statement to USA TODAY on Friday.
Geren’s efforts come as the number of soldiers seeking help for substance abuse has hit record levels. In November, USA TODAY reported that the number of soldiers asking for counseling had increased 25% in five years.
The Army, however, can’t meet the growing demand. One-fourth of the 338 Army drug counseling positions are unfilled, spokeswoman Cynthia Vaughan says.
The program’s clinical director, Wanda Kuehr, said soldiers have waited for help for “fairly long periods of time” at Fort Bragg, Fort Hood and other installations. She did not to elaborate.
The Army has no residential treatment facility for substance abuse and only 150 beds Armywide for in-patient care, said Col. Elspeth Ritchie, a psychiatrist.
Sen. Claire McCaskill, D-Mo., told Geren in a November letter that current Army policies, such as notifying commanders about soldiers seeking help, “seem oriented to disciplinary concerns,” rather than treatment. Geren told McCaskill on Dec. 22 that he is ordering “an immediate and complete review” of ASAP. Suspending the notification rule, he said, could “assure soldiers the program is not punitive.”
A June 2007 Pentagon report said the policy may leave soldiers with the perception that seeking help “results in permanent damage to one’s military career.”
Lt. Gen. Eric Schoomaker, the Army surgeon general who urged an end to the policy in October, would not comment. But he is working with Lt. Gen. Michael Rochelle, deputy chief of staff for Army personnel, to change the policy.
“The willingness with which our young people are likely to serve in any war, no matter how justified, shall be directly proportional to how they perceive veterans of early wars were treated and appreciated by our nation.” George Washington
PTSD victim booted for ‘misconduct’ ~ Response from Adam’s Attorney
“Adam’s attorney, Jason Perry, has identified a number of violations of Adam’s rights at the separation hearing, including…
ISSUES IN ADMINISTRATIVE DISHARGE CASE OF SGT ADAM BOYLE
SGT Boyle’s administrative separation violated his Constitutional Due Process rights, Army Regulations, and was patently illegal.
Legal Errors
1. The Army failed to refer SGT Boyle’s case to the Physical Evaluation Board
SGT Boyle’s administrative separation is prohibited by AR 635-200, Paragraph 14–17, g., which states that in cases where a separation for misconduct is recommended by an administrative board, disposition through medical channels is required if the “Soldier has an incapacitating physical or mental illness that was the direct or substantial contributing cause of the conduct, and action under the UCMJ is not initiated. A copy of the signed decision by the GCMCA will be included with the records.” (Emphasis added). The Administrative Separation Board did not address this issue and the General Court-Martial Convening Authority (GCMCA) failed to make findings about the impact of SGT Boyle’s condition on his conduct. No signed decision by the GCMCA was included with the records.
2. The findings of the Administrative Separation Board were based on an incomplete record
The Administrative Separation Board denied SGT Boyle’s assigned military counsel’s request for a delay until records from his Medical Evaluation Board (MEB) could be submitted. The separation board convened on October 29, 2008, and the MEB was approved on the same day. The Narrative Summary, which contains the detailed findings of the MEB physician, was completed on October 23, 2008, well before the hearing. The Narrative Summary stated that SGT Boyle has Chronic PTSD, “a severe psychiatric condition,” and that his condition fails retention standards under AR 40-501. The MEB further recommended that the “Service member should be referred to the Physical Evaluation Board for further adjudication and requires the duty limitations specified on the attached DA Form 3349.” This information should have been considered by the Administrative Separation Board. It was required to have been considered by the GCMCA.
In addition, SGT Boyle’s Enlisted Record Brief (ERB) considered by the board was more than 6 months old and was incomplete. Specifically, his latest Army Achievement Medal was not listed on his brief. An updated ERB was requested by military defense counsel. This was not provided, even though this record is readily available to the command via a Department of the Army web based computer application. This failure meant that the Administrative Separation Board and the GCMCA did not have an accurate basis to make findings regarding the proper discharge characterization.
3. The Army failed to give SGT Boyle the required rehabilitative transfer
Army Regulation 635-200, Paragraph 1-16,c. requires that prior to initiating an administrative separation for a pattern of misconduct, the Soldier must be transferred to a new unit for at least 3 months to provide him an opportunity to rehabilitate. The GCMCA may waive the rehabilitation requirements “where common sense and sound judgment indicate that such transfer will serve no useful purpose or produce a quality soldier.” Id. However, in SGT Boyle’s case, no such rehabilitation or waiver was made. Furthermore, Dr. George Krolick, Ph.D.,Clinical Psychologist, stated in his May 8, 2008 evaluation that “it is likely that efforts to rehabilitate or develop this individual into a satisfactory member of the military will be successful.” Note that SGT Boyle was not alleged to have engaged in misconduct after this date and in the 9 months preceding his discharge. This shows that not only was rehabilitation likely to succeed, but that even in the absence of a rehabilitative transfer, he was actually rehabilitated.
Compounding the failure to transfer SGT Boyle prior to initiating a separation, the Administrative Separation Board found that his chain of command failed to properly address the pattern of misconduct (“what helped mitigate this was the testimony from your chain of command. We felt they could have done a better job of putting a plan of action into effect that might have prevented a pattern.” (Page 28).
4. The Administrative Separation was illegal punishment
SGT Boyle’s Commander, who initiated the separation action, testified at the separation hearing that, “The Chapter was paperwork was started because of an incident in Georgia…The Chapter is his punishment for the incident.” (Page 11, Administrative Separation Board). Since the separation action was administrative in nature and non-judicial, the procedures used to punish SGT Boyle violated the Uniform Code of Military Justice (UCMJ), Article 15 (Non-Judicial Punishment). Furthermore, the punishment imposed, separation, exceeded the authorized punishment under UCMJ, Article 15.
5. The Army failed to consider military defense counsel’s appeal
AR 635-200, Paragraph 2-6., requires that any legal errors identified by the respondent must be reviewed by an officer of the Judge Advocate General’s Corps prior to approval of the case by the GCMCA. The Administrative Separation Board hearing occurred on October 29, 2008. On November 6, 2008, SGT Boyle’s military defense counsel submitted an appeal requesting retention and referral to a Physical Evaluation Board. The appeal raised the legal error in not referring SGT Boyle to a Physical Evaluation Board. It detailed his honorable service, combat service, the findings of the Medical Evaluation Board, and pointed out that all of the alleged misconduct found by the Separation Board occurred after his return from Iraq. It also detailed the proactive treatment and intervention that SGT Boyle sought to address his conditions. The defense counsel states that she was told that the case had already been approved by the GCMCA and that the appeal could not be considered. This is in spite of the fact that the GCMCA did not approve the case until December 16, approximately 5 weeks later.
6. The Administrative Separation Board and the General Court-Martial Convening Authority failed to consider SGT Boyle’s complete service record in determining his discharge characterization
AR 635-200, Paragraph 3-5 e., requires that the characterization of service “must accurately reflect the nature of service performed…The Soldier’s performance of duty and conduct must be accurately evaluated.” Paragraph 3-7 a.(2)(d), states, “Unless otherwise ineligible, a soldier may receive an honorable discharge if he/she has, during his/her current enlistment, period of obligated service, or any extensions thereof, received a personal decoration.” The ERB that was considered by the Administrative Separation Board was more than 6 months old and did not list his third award of the Army Achievement Medal, earned for his meritorious service in Iraq and during his current enlistment. To have an accurate picture of his military service, SGT Boyle earned two Army Commendation Medals, three Army Achievement Medals, and two Army Good Conduct Medals.
The dated and inaccurate ERB deprived the Administrative Separation Board and the GCMCA of the whole picture of SGT Boyle’s honorable military service. This error was a violation of his Constitutional Due Process rights and Army Regulations.
The Illegal Separation Violated SGT Boyle’s Constitutional Due Process Rights and Army Regulations
The illegal discharge was stigmatizing and therefore requires the Army to respect SGT Boyle’s Constitutional Due Process rights. Federal case law states that these rights include notice of the action and an opportunity for a hearing. Casey v. United States, 8 Cl. Ct. 234 (1985). Without going into the details, the notice given SGT Boyle was defective because the findings by the Administrative Separation Board and the GCMCA included allegations of misconduct that he was not notified of prior to his hearing. This issue aside, the hearing was defective because it did not consider the available findings of the Medical Evaluation Board, violated Army Regulations, was based on incomplete information, and failed to offer SGT Boyle an opportunity to submit matters in his defense after the findings were announced.
As discussed previously, the hearing also, separately, violated Army Regulations.
Consequences of the Illegal Discharge
As a result of his illegal discharge with a General Discharge certificate, SGT Boyle was required to repay his re-enlistment bonus of $18,500. Because he outprocessed with a debt to the Army, SGT Boyle’s last paycheck was withheld. He was stripped of his accrued leave, which he could have otherwise taken or sold back to the Army. Without an honorable discharge characterization, he is ineligible for remission of indebtedness (which would cancel his debt), and is disqualified from the federal Unemployment Compensation for Ex-Servicemembers program. His rights to healthcare, compensation, and educational benefits from the Department of Veterans Affairs are now in doubt. He was denied his rights to a Physical Evaluation Board, which could have resulted in military retirement, health care benefits, and other retiree benefits due to his PTSD and migraine-like headaches.
SGT Boyle is a decorated twice deployed veteran of the Iraq war. As a result of his combat service he was injured and developed PTSD. Instead of giving him the benefits due to him under the law, the Army illegally separated him with a stigmatizing misconduct discharge. Instead of focusing on recovering from his injuries, he now must figure out where he is going to live, what he is going to do for work, and where he is going to get the treatment he deserves. The United States Army should have helped him. It should have given him the rights due under the Constitution and Army Regulations. Unfortunately, the Army has instead pushed him out without resources and he is left to fend for himself. This is not how we are supposed to treat our Wounded Warriors.”
“The willingness with which our young people are likely to serve in any war, no matter how justified, shall be directly proportional to how they perceive veterans of early wars were treated and appreciated by our nation.”
George Washington
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