IN THE CASE OF: BOARD DATE: 21 June 2016 DOCKET NUMBER: AR20150002114 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x ____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 21 June 2016 DOCKET NUMBER: AR20150002114 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. _____________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. IN THE CASE OF: BOARD DATE: 21 June 2016 DOCKET NUMBER: AR20150002114 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 an upgrade of his under other than honorable conditions (UOTHC) discharge to a general discharge and correction of the narrative reason for his separation. 2. The applicant states, in effect: a. He returned from Iraq in July of 2004 back to Fort Polk, LA. Shortly after returning, he approached his platoon sergeant about dreams that he was having. They were very graphic in nature and scared him enough that he did not want to go to sleep. His platoon sergeant told him "to quit faking post-traumatic stress disorder (PTSD)" and that the doctors were busy helping Soldiers with real problems. He turned to alcohol first and proceeded to drink until passing out every night. This was the only way he could make it through the entire night. This went on every night for months. In the winter between 2004 and 2005, his unit received orders indicating the unit was moving to Fort Lewis, WA. Shortly after receiving this information, he met some new people while playing pool in town, and quickly fell into their world which included drugs. When he was using crystal meth, he would stay up for days, and when he finally fell asleep, it would be hard and deep. He did not have dreams at all and he liked that. Unfortunately, he had a drug addiction and he did not realize that until he arrived at Fort Lewis. b. He again approached his platoon sergeant and expressed his concerns. The same day, he was sent to talk to a psychiatrist and was ordered to take a urinalysis. This test came back positive for methamphetamine in very high levels. He was given an Article 15 the very next day stripping him to pay grade E-1. The doctor told him that he needed to work through this and that he would recommend there not be any more punishment unless treatment failed. Three days after he approached his sergeant, he was being discharged. He was taken from the unit in handcuffs and placed in jail for 28 days. After he was released, he was turned to his unit and placed under 24 hour guard. He began receiving "no pay due" and the unit refused to give him a rations card. He was given meals ready to eat (MRE), three times a day for over a month. He had already done his out-processing, to include his physical. According to the military, he did not exist anymore, but they had not finished the local paperwork. Once he was a civilian, he moved in with his squad leader and his wife. He quickly gained employment and saved money to move back to Michigan. c. He arrived in Michigan 3 months after being released. He sought medical help for his dreams before he could succumb to the wrong path again. He had gained employment and he was paying for this out of pocket. Since his discharge, he has made it so that he rarely has a bad dream. The dreams occur about once every 3 months, and then they seem to be stress-related. He has also received his Associate’s Degree in Network Administration, with high honors. This allowed him to enter the National Honor Society. This was done while working 50 hours a week and helping raise two children. He adopted his son who is now 13 years old. He has also achieved the level of Master Certified Mechanic with the State of Michigan. He and his wife own a successful automotive repair facility. Additionally, he is studying for his Bachelor's Degree in Project Management. d. The issue that caused his discharge was an isolated event and was caused mainly because he was unable to obtain the level of help that was required to prevent him from turning to drug use. This was not and is not in his nature. He believes he was wronged at the unit level, as they "made an example out of him." Three months before he used drugs, he received the Army Good Conduct Medal. He has not touched drugs since being discharged. PTSD is being kept under control without medication as well. An upgrade of his discharge would allow him to better himself and create a better life for his family. Department of Veterans Affairs (VA) benefits would allow him to further his secondary education and refinance his home to have a more affordable payment. He has done everything within his power to keep his moral compass straight and true. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Two statements of support * Certificates CONSIDERATION OF EVIDENCE: 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 Army Board for Correction of Military Records (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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 28 May 2002 and he held military occupational specialty 15T (UH-60 Helicopter Repairer). 3. He was initially assigned to 4th Squadron, 2nd Aviation, Fort Polk, LA. He served in Kuwait/Iraq from 9 February to 14 July 2004. He was then reassigned to F Troop, 4th Squadron, 6th Cavalry, Fort Lewis, WA. 4. On 15 August 2005, he tested positive for the use of illegal drugs. 5. On 31 August 2005, he underwent a mental status evaluation. He was seen at the Behavioral Health Clinic, Madigan Army Medical Center, Fort Lewis, by a clinical psychologist after referral by his commander for an Emergency Command Directed Risk Assessment Evaluation. He had self-referred to the Army Substance Abuse Program for methamphetamine use. a. He was accused of having methamphetamine paraphernalia in his barracks room. He had also admitted to self-mutilation in the recent past. He was interviewed and showed no signs of apparent distress. When asked about the circumstances surrounding his referral to mental health he replied, "I'm only doing meth to get out of the Army," and further elaborated that he knew he would test hot on the drug screen he took last night. He was alert and oriented to time, place, person, and situation. He was cooperative and maintained good eye contact. When questioned about his decision to use drugs as a means of being discharged and the potential for facing legal charges instead of a discharge, he responded that the penalty for possession was 30 to 60 days and then he would be out. There was no evidence of depression or paranoid or psychotic thinking. b. He adamantly denied suicidal or homicidal thoughts. There was no diagnosis for Axis I and Axis II. The applicant had the capacity to understand and participate in any and all administrative and or legal proceedings. He was mentally responsible for his actions. He was currently not a danger to self or to others. 6. On 28 September 2005, he was again evaluated at the Behavioral Health Clinic at the request of his commander. The clinical psychologist found him mentally responsible and able to distinguish right from wrong. He was cleared for any administrative actions deemed appropriate by his chain of command. 7. On 21 October 2005, consistent with his pleas, he was convicted by a summary court-martial of two specifications of wrongfully using methamphetamine on diverse occasions, one specification of wrongfully using cocaine, and one specification of wrongfully using marijuana. The court sentenced him to reduction to the lowest enlisted grade, a forfeiture of $1,094 pay for 1 month, and confinement for 29 days. The convening authority approved the sentence. 8. On 27 October 2005, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, for the commission of a serious offense (wrongfully using methamphetamine on divers occasions, wrongfully using marijuana, and wrongfully using cocaine). The immediate commander recommended an UOTHC discharge. 9. On 26 October 2005, the applicant acknowledged receipt of the commander's intent to separate him. He subsequently consulted with legal counsel who advised him of the basis for the contemplated separation action for misconduct, the type of discharge he could receive, 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 an administrative separation board and appearance before such board. He also elected not to submit a statement in his own behalf. He further indicated he understood: * he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him * 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 UOTHC discharge 10. Subsequent to the applicant's acknowledgement and consult with counsel, his immediate commander initiated separation action against him in accordance with Army Regulation 635-200, paragraph 14-12c, for misconduct - commission of a serious offense. The applicant's intermediate and senior commanders recommended approval of the applicant's UOTHC discharge. 11. On 8 December 2005, following a legal review for legal sufficiency and consistent with the chain of command's recommendations, the separation authority approved the applicant’s discharge under the provisions of AR 635-200, chapter 14, paragraph 14-12c, by reason of misconduct - commission of a serious offense, with an UOTHC discharge. Accordingly, the applicant was discharged on 16 December 2005. 12. The DD Form 214 he was issued confirms he was discharged under the provisions of AR 635-200, paragraph 14-12c due to misconduct - serious offense, with an UOTHC discharge. This form further confirms he completed 3 years, 5 months, and 25 day of creditable active service with lost time from 28 October to 21 December 2005. Additionally, this form shows in: * Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) the Presidential Unit Citation, Army Good Conduct Medal, National Defense Service Medal, Army Service Ribbon, Global War on Terrorism Service Medal, and Iraq Campaign Medal * Item 26 (Separation Code) the entry "JKQ" * Item 28 the entry "Misconduct (Serious Offense)" 13. On 27 January 2012, the Army Discharge Review Board (ADRB) reviewed his separation processing and found it proper and equitable. The ADRB denied his request for an upgrade of his discharge. 14. On 16 September 2015, a staff member of the Army Review Boards Agency dispatched a letter to the applicant requesting copies of his medical records that support a diagnosis of PTSD, as well as any VA medical records. The applicant did not respond. 15. He provides a certificate confirming completion of the Network Systems Administration Course and award of an Associate of Applied Science Degree, as well as a mechanic shop license in the State of Michigan. He also provides: * A character reference letter from an individual who conducts business with the applicant and describes him as an extremely hard-working, honest, and trustworthy individual * A character reference letter from an individual who describes the applicant as a professional and respectable individual REFERENCE: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a of Army Regulation 635-200 provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b, provides 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. c. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Commission of a serious military or civil offense applies if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual of Court-Martial. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. d. Paragraph 14-3 states an UOTHC discharge is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. 2. 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 Soldiers separated under the provisions of Army Regulation 635-200, paragraph 14-12c, due to misconduct (serious offense). 3. 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. 4. The Fifth Edition of the DSM 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 criterion assesses functioning, and the eighth criterion clarifies symptoms as not attributable to a substance or co-occurring medical condition. 5. Although Department of Defense acknowledges that some Soldiers who were administratively discharged UOTHC 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 records 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. BCM/NRs 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. BCM/NRs 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: 1. The applicant committed a serious offense. He wrongfully abused several illegal drugs, including cocaine and marijuana, on diverse occasions. Accordingly, his chain of command initiated separation action against him under the provisions of AR 635-200, chapter 14, for misconduct - commission of a serious offense. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The evidence supports the characterization of service he received. 2. The quality of service of a Soldier on active duty is affected adversely by conduct that is of a nature to bring discredit on the Army or is prejudicial to good order and discipline. The circumstances of his offense (wrongful use of drugs, including cocaine, on diverse occasions) is considered a serious offense in the military. Additionally, his records do not contain and he did not provide any service medical records that support the existence of PTSD as a contributing factor to his misconduct. 3. His narrative reason for separation was assigned because he was discharged under the provisions of AR 635-200, paragraph 14-12c, due to his misconduct - commission of a serious offense. Absent the commission of a serious offense, there was no fundamental reason to process him for separation. The underlying reason for his discharge was his serious offenses. The only valid narrative reason for separation permitted under that paragraph is "misconduct - serious offense," which is correctly shown on his DD Form 214. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150002114 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150002114 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2