IN THE CASE OF: BOARD DATE: 1 September 2015 DOCKET NUMBER: AR20150001554 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests reconsideration of his earlier request for an upgrade of his under honorable conditions (general) discharge to fully honorable and to change the narrative reason for his separation to medical or administrative. 2. The applicant states he suffered from a severe case of anxiety and depression due to service-connected post-traumatic stress disorder (PTSD). He was misdiagnosed and treated for alcohol and drug abuse while his real problem was left unmanaged. He was discharged with unfair prejudice after his attempt to self-medicate to correct mental illness and relieve emotional pain. He adds: a. During his first year of service, while stationed in Germany, he witnessed a horrific assault on his coworker (R---y P----tt) by another Soldier from their unit. Soon afterwards this devastating incident started taking tough mental toll on his health and performance. Since the legal drinking age in Germany is 18, he started drinking to make his pain go away. Not long after, he was referred to a counseling group on post for alcohol treatment. He found out alcohol abuse at such a young age wasn't anything new to U.S. forces stationed abroad. While this program was quite informative in regards to risk of alcohol abuse and medication interactions, it did not address his anxiety and depression issues. Throughout his short military career (1998-2002), he tried very hard to overcome his difficulties and perform at his best while on active duty. Unfortunately, he was living in denial, not realizing that keeping busy at work and staying drunk off duty wouldn't fix his post-traumatic stress disorder (PTSD). b. His records show excellent performance while on the job. He was promoted four times during his first 3 years of service, making the rank/grade of sergeant (SGT)/E-5 at the age of 21 and receiving a Good Conduct Medal. Unfortunately, his PTSD had a destructive effect on his off-duty conduct. At some point while intoxicated he made a mistake reaching for a controlled substance. Needless to say he then tested positive for MDMA (ecstasy). This was the perfect moment for the Department of Defense (DOD) to get rid of him and his problems. Soon after, he was discharged with an under other than honorable conditions discharge with only 4 months left until the end of his contract. Today he takes full responsibility for his actions and considers himself lucky that the Department of Veteran Affairs (VA) was willing to help him with his condition and offer needed treatment for PTSD that the DOD wouldn't deem necessary. c. Fourteen years later, he is convinced that, back then, professional therapy along with some medication would have made all the difference in the world and allowed him to continue to serve our country as he always dreamed of. He does not want to call his situation a wrongful denial of medical help, because he does understand that the VA and DOD both have different agendas. It simply wasn't convenient for the DOD to rehabilitate him or even admit that there was a need to. He put himself in a position where DOD had every legal right to discharge him. Life isn't always fair, but he is still fighting to make the best of it. Recently, he read that Secretary of Defense Hagel made a decision to consider veterans in situations like his and this gave him some hope. In conclusion, he wants the Board to know that at the time of his discharge, all his immediate supervisors (squad leader, platoon Leader) were doing everything they could to keep him in, but the company commander acting on orders from the battalion commander (Colonel M----el D. S---e) was unforgiving. d. Colonel M----el D. S---e, known from Black Hawk Down, commanded the company of Rangers that got bloodied in Mogadishu. The Internet is full of negative information about his former commander who held a personal grudge against him. For example, he encloses a letter by Lieutenant Colonel N-----iel J-----n appealing an evaluation report for the period 9 November 2005 to 8 November 2006 in which he was not recommended for promotion to colonel. He claims that the report by Colonel S---e was biased against him for personal reasons. The document is interesting in connection with the murders of three unarmed Iraqi men by U.S. Soldiers near Tikrit in May 2006, because Colonel M----el D. S---e was the commanding officer of the four accused Soldiers, who later testified that Colonel S---e had given the order to "kill all military-age men." The story of the killings and the subsequent court-martial were covered at the time by the New York Times, among others. Colonel S---e was later formally reprimanded but never charged. e. He hopes that the Board will agree with him that his case was handled rather harshly and unprofessionally from the medical point of view. He left the service with untreated psychological issues and a bad discharge. This is a very bad combination. It took him over a decade to start recovering on his own thanks to the help from the VA. Due to his PTSD diagnosis and overlooked service- connected medical condition, he asks for an upgrade of his discharge to honorable and to change the reason for separation (misconduct) to either medical or administrative. The current narrative reason for separation further complicates the lives of his close ones and especially his. 3. The applicant provides: * Letter from the VA, dated 19 January 2015 * Civilian mental health diagnosis, dated 11 February 2014 * Internet article on Colonel S----e * Appeal of an officer evaluation report by Lieutenant Colonel N-----iel J-----n CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130004944, on 19 November 2013. 2. The applicant does not meet the criteria for a request for reconsideration because his request was not received within 1 year of the Board's original decision. However, in view of the Secretary of Defense's Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming PTSD, his request warrants consideration by the Board as an exception to policy. 3. The applicant's records show he enlisted in the Regular Army on 6 August 1998 and he held military occupational specialty 11B (Infantryman). He served in Germany from 4 February 1999 to 31 January 2001. 4. His DA Form 2-1 (Personnel Qualification Record) shows he was promoted to private/E-2 on 6 February 1999. However, it also shows he was reduced to private/E-1 on 15 July 1999. 5. His DA Form 2-1 also shows he was promoted back to private/E-2 on 1 January 2000, to private first class/E-3 on 1 April 2000, and to specialist/E-4 on 6 October 2000. 6. On 11 October 2001, Headquarters, 10th Mountain Division, Fort Drum, NY published Orders 284-22 promoting him to SGT/E-5 effective 1 October 2001. The orders stated "the Secretary of the Army has reposed special trust and confidence in the patriotism, valor, fidelity, and professional excellence of [Applicant]." 7. He was assigned as a Fire Team Leader in charge of a 4-man light infantry fire team with Company C, 2nd Battalion, 22nd Infantry Regiment, 10th Mountain Division. 8. On 16 January 2001, agents of the U.S. Army Criminal Investigation Command (CID) were notified that the applicant tested positive for the presence of a methamphetamine during a 100 percent unit urinalysis administered on 8 November 2001. The CID investigation determined: * the applicant attempted to submit an adulterated specimen by dipping the urine specimen cup into the toilet which was successfully detected by the Unit Alcohol Drug Coordinator * there was probable cause to believe the applicant committed the offense of wrongful possession and use of a controlled substance and failed to obey an order when he attempted to submit an adulterated specimen * the specimen custody document, dated 20 November 2001, documented a positive urinalysis result for the presence of illegal drugs 9. On 30 January 2002, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using MDMA and for failing to obey a lawful order from his company commander to submit a urine sample. His punishment consisted of a reduction to E-4, forfeiture of pay, and extra duty and restriction. 10. In February 2002, he received a change of rater Noncommissioned Officer Evaluation Report for the rating period October 2001 through February 2002. * His rater rated him a "NO" in the "Honor" and "Integrity" values and commented that he "has demonstrated an inability to live by the Army values" and "does not seem to understand the difference between right and wrong" * His rater also rated his "Competence" as "Needs Improvement (Much)" and his "Leadership" as "Needs Improvement (Some)" and commented that he "failed to set the example for Soldiers to follow" * His rater also rated his overall potential as "Marginal" * His Senior Rater rated his overall performance as "Fair," his overall potential as "Poor" and neither recommended him for promotion nor any additional professional development 11. On 11 February 2002, the applicant’s immediate commander notified him of his intention to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations), paragraph 14-12c, for misconduct - commission of a serious offense. The specific reasons are cited as the wrongful use of methamphetamine and the attempt to submit an altered specimen. The commander recommended the issuance of an under other than honorable conditions discharge. 12. On 12 February 2002, the applicant acknowledged receipt of the commander's intent to separate him. He consulted with legal counsel and he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him. He waived consideration of his case by a separation board and/or a personal appearance before a separation board contingent upon receiving a characterization of service of no less than an under honorable conditions (general). He acknowledged he understood that: a. He could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. b. He could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge. c. If the separation authority refused to accept his conditional waiver of a hearing before an administrative separation board, he requested a personal appearance before a board and representation by counsel. d. He elected not to submit a statement in his own behalf. 13. On 12 February 2002, and subsequent to his acknowledgement, the applicant’s immediate commander initiated separation action against him in accordance with Army Regulation 635-200, paragraph 14-12c, for misconduct. 14. On 22 and 25 February 2002, his intermediate and senior commanders recommended approval of the discharge action with the issuance of an under other than honorable conditions discharge. 15. On 4 March 2002, the separation authority disapproved the conditional waiver and ordered the applicant's case be referred to an administrative separation board. 16. On 11 March 2002, the applicant again acknowledged receipt of the commander's intent to separate him. He consulted with legal counsel and he was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights that were available to him. He waived consideration of his case by a separation board and/or a personal appearance before a separation board. He acknowledged he understood that: a. He could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. b. He could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge. c. He elected not to submit any statements in his own behalf. 17. On 18 March 2002, the separation authority ordered the withdrawal of the administrative separation board, approved the applicant’s discharge, and ordered him discharged under the provisions of chapter 14 of Army Regulation 635-200, by reason of misconduct - commission of a serious offense with an under other than honorable conditions characterization of service. 18. On 22 March 2002, the applicant was accordingly discharged. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of chapter 14 of Army Regulation 635-200 by reason of misconduct (serious offense) with an under other than honorable conditions characterization of service. He completed 3 years, 7 months, and 17 days of net active service this period. The DD Form 214 listed the narrative reason for separation as "Misconduct" and the separation code as "JKK." 19. On 9 May 2011, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge and/or change in the reason for his discharge. On 21 December 2011, after careful review of his application, military records, and all other available evidence, the ADRB determined the characterization of service was too harsh. As a result, the ADRB recommended an upgrade of his discharge to an under honorable conditions, general, discharge. The ADRB further recommended no change to the narrative reason for his separation because it found it was proper and equitable. 20. As a result, his DD Form 214 was voided and he was issued a new DD Form 214 reflecting his under honorable conditions (general) characterization of service but the same narrative reason for separation. 21. On 8 March 2013, he petitioned the ABCMR for an upgrade of his discharge and a change to the narrative reason for separation. The ABCMR conducted a thorough analysis of his case but found no error or injustice. As a result, the ABCMR denied his petition. 22. He provides: a. A letter, dated 19 January 2015, from the VA indicating he has a service-connected disability at the rate of 60 percent. b. Post-service civilian mental health diagnosis, dated 11 February 2014, showing a diagnosis for PTSD. c. Internet article about events that took place in Iraq and are related to the death of U.S. Soldiers. d. An appeal memorandum, dated 11 February 2008, submitted by a major who was rated by Colonel S----e. 23. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories include minor disciplinary infractions; a pattern of misconduct; commission of a serious offense, to include abuse of illegal drugs; convictions by civil authorities; and desertion or absence without leave. Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. Paragraph 14-12 prescribes the conditions that subject Soldiers to discharge for misconduct. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. b. Paragraph 3-7b states that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 24. Army Regulation 635-5-1 (Separation Program Designator (SPD)) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It states the SPD code of JKQ is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c by reason of misconduct (serious offense). 25. PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster. The Diagnostic and Statistical Manual of Mental Disorders (DSM) is published by the American Psychiatric Association (APA) and it provides standard criteria and common language for the classification of mental disorders. In 1980, the APA added PTSD to the third edition of its DSM-III nosologic classification scheme. Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice. From an historical perspective, the significant change ushered in by the PTSD concept was the stipulation that the etiological agent was outside the individual (i.e., a traumatic event) rather than an inherent individual weakness (i.e., a traumatic neurosis). The key to understanding the scientific basis and clinical expression of PTSD is the concept of "trauma." 26. PTSD is unique among psychiatric diagnoses because of the great importance placed upon the etiological agent, the traumatic stressor. In fact, one cannot make a PTSD diagnosis unless the patient has actually met the "stressor criterion," which means that he or she has been exposed to an event that is considered traumatic. Clinical experience with the PTSD diagnosis has shown, however, that there are individual differences regarding the capacity to cope with catastrophic stress. Therefore, while most people exposed to traumatic events do not develop PTSD, others go on to develop the full-blown syndrome. Such observations have prompted the recognition that trauma, like pain, is not an external phenomenon that can be completely objectified. Like pain, the traumatic experience is filtered through cognitive and emotional processes before it can be appraised as an extreme threat. Because of individual differences in this appraisal process, different people appear to have different trauma thresholds, some more protected from and some more vulnerable to developing clinical symptoms after exposure to extremely stressful situations. 27. The DSM fifth revision (DSM-5) was released in May 2013. This revision includes changes to the diagnostic criteria for PTSD and Acute Stress Disorder. The PTSD diagnostic criteria were revised to take into account things that have been learned from scientific research and clinical experience. The revised diagnostic criteria for PTSD include a history of exposure to a traumatic event that meets specific stipulations and symptoms from each of four symptom clusters: intrusion, avoidance, negative alterations in cognitions and mood, and alterations in arousal and reactivity. The sixth criterion concerns duration of symptoms; the seventh assesses functioning; and the eighth criterion clarifies symptoms as not attributable to a substance or co-occurring medical condition. a. Criterion A, stressor: The person was exposed to: death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence, as follows: (one required) * Direct exposure * Witnessing, in person * Indirectly, by learning that a close relative or close friend was exposed to trauma. If the event involved actual or threatened death, it must have been violent or accidental * Repeated or extreme indirect exposure to aversive details of the event(s), usually in the course of professional duties (e.g., first responders, collecting body parts; professionals repeatedly exposed to details of child abuse);this does not include indirect non-professional exposure through electronic media, television, movies, or pictures b. Criterion B, intrusion symptoms: The traumatic event is persistently re-experienced in the following way(s): (one required) * Recurrent, involuntary, and intrusive memories * Traumatic nightmares * Dissociative reactions (e.g., flashbacks) which may occur on a continuum from brief episodes to complete loss of consciousness * Intense or prolonged distress after exposure to traumatic reminders * Marked physiologic reactivity after exposure to trauma-related stimuli c. Criterion C, avoidance: Persistent effortful avoidance of distressing trauma-related stimuli after the event: (one required) * Trauma-related thoughts or feelings * Trauma-related external reminders (e.g., people, places, conversations, activities, objects, or situations) d. Criterion D, negative alterations in cognitions and mood: Negative alterations in cognitions and mood that began or worsened after the traumatic event: (two required) * Inability to recall key features of the traumatic event (usually dissociative amnesia; not due to head injury, alcohol, or drugs) * Persistent (and often distorted) negative beliefs and expectations about oneself or the world (e.g., "I am bad," "The world is completely dangerous") * Persistent distorted blame of self or others for causing the traumatic event or for resulting consequences * Persistent negative trauma-related emotions (e.g., fear, horror, anger, guilt, or shame) * Markedly diminished interest in (pre-traumatic) significant activities * Feeling alienated from others (e.g., detachment or estrangement) * Constricted affect: persistent inability to experience positive emotions. e. Criterion E, alterations in arousal and reactivity: Trauma-related alterations in arousal and reactivity that began or worsened after the traumatic event: (two required) * Irritable or aggressive behavior * Self-destructive or reckless behavior * Hypervigilance * Exaggerated startle response * Problems in concentration * Sleep disturbance f. Criterion F, duration: Persistence of symptoms (in Criteria B, C, D, and E) for more than one month. g. Criterion G, functional significance: Significant symptom-related distress or functional impairment (e.g., social, occupational). h. Criterion H, exclusion: Disturbance is not due to medication, substance use, or other illness. 28. As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis and treatment of PTSD the Department of Defense (DoD) acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had an undiagnosed condition of PTSD at the time of their discharge. It is also acknowledged that in some cases this undiagnosed condition of PTSD may have been a mitigating factor in the Soldier's misconduct which served as a catalyst for their discharge. Research has also shown that misconduct stemming from PTSD is typically based upon a spur of the moment decision resulting from temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues for an extended period of time. 29. In view of the foregoing, on 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 30. BCM/NRs are not courts, nor are they investigative agencies. Therefore, the determinations will be based upon a thorough review of the available military records and the evidence provided by each applicant on a case-by-case basis. When determining if PTSD was the causative factor for an applicant's misconduct and whether an upgrade is warranted, the following factors must be carefully considered: * Is it reasonable to determine that PTSD or PTSD-related conditions existed at the time of discharge? * Does the applicant's record contain documentation of the occurrence of a traumatic event during the period of service? * Does the applicant's military record contain documentation of a diagnosis of PTSD or PTSD-related symptoms? * Did the applicant provide documentation of a diagnosis of PTSD or PTSD-related symptoms rendered by a competent mental health professional representing a civilian healthcare provider? * Was the applicant's condition determined to have existed prior to military service? * Was the applicant's condition determined to be incurred during or aggravated by military service? * Do mitigating factors exist in the applicant's case? * Did the applicant have a history of misconduct prior to the occurrence of the traumatic event? * Was the applicant's misconduct premeditated? * How serious was the misconduct? 31. Although the DoD acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had an undiagnosed condition of PTSD at the time of their discharge, it is presumed that they were properly discharged based upon the evidence that was available at the time. Conditions documented in the record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which PTSD or PTSD-related conditions may be reasonably determined to have existed at the time of discharge; those conditions will be considered potential mitigating factors in the misconduct that caused the UOTHC characterization of service. Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of UOTHC. Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. DISCUSSION AND CONCLUSIONS: 1. The evidence of record shows the applicant served on active duty from 6 August 1998 to 22 March 2002. a. The evidence of record shows the applicant committed a serious offense in that he refused to submit a urine sample and attempted to fake his urine sample. When he did submit one, it tested positive for an illegal drug. As such, his chain of command initiated separation action against him. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. b. His chain of command, including the immediate, intermediate, and senior commanders all recommended an under other than honorable conditions discharge. None of his commanders recommended his retention as he contends. Even when he submitted a conditional waiver, his waiver was disapproved. c. The applicant had been promoted to SGT and assigned as a team leader, a position of authority and responsibility. In promoting him, the Army reposed special trust and confidence in the patriotism, valor, fidelity, and professional excellence of the applicant. As a SGT, the applicant was in a position of trust and responsibility, and he was responsible for the welfare of those assigned under him. The applicant violated this special trust and confidence. d. The ADRB reviewed his case and determined his characterization of service was too harsh. Although the ADRB recommended an upgrade of his characterization of service to general, it found the reason for his separation both proper and equitable. As such, it voted not to change it. e. There is no evidence that shows the applicant suffered from any medical issues during the referenced period. There is no evidence of record and none was provided with this application to show, during his military service, he suffered an injury or was diagnosed with a physical or a mental illness, including PTSD or any other medical condition that rendered him unable to reasonably perform the duties required of his former grade or military specialty or caused him to abuse drugs. f. The applicant's service was not interrupted by any medical condition and he was not discharged because of any medical condition. He was discharged because of his drug abuse. While his discharge (chapter 14) is already shown as an administrative discharge, there is insufficient evidence to change it to a medical discharge. g. His narrative reason for separation was assigned based on the fact that he was separated under the provisions of Army Regulation 635-200, chapter 14, for misconduct, commission of a serious offense. Absent the misconduct of committing a serious offense there was no fundamental reason to process him for separation. The underlying reason for his discharge was his commission of a serious offense. The only valid narrative reason for separation permitted under that paragraph is "misconduct" and the appropriate separation code associated with this discharge is "JKK" which is correctly shown on his DD Form 214. 2. His discharge appears to be appropriate based on the quality of his service. His service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel. His actions at the time clearly brought discredit upon himself and the Army. Based on his record of misconduct, his service was unsatisfactory. Therefore, he is not entitled to an honorable discharge. BOARD VOTE: ________ ________ ________ 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20130004944, dated 19 November 2013. _______ _ _X_____ ___ CHAIRPERSON 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. ABCMR Record of Proceedings (cont) AR20150001554 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150001554 14 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1