IN THE CASE OF: BOARD DATE: 8 September 2016 DOCKET NUMBER: AR20150005253 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: 8 September 2016 DOCKET NUMBER: AR20150005253 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: 8 September 2016 DOCKET NUMBER: AR20150005253 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: 11. The applicant requests an upgrade of his under honorable conditions (general) discharge due to his post-traumatic stress disorder (PTSD). 2. The applicant states he was discharged with an under honorable conditions discharge. He was discharged because he tested positive during a urinalysis. He has since found out that he has PTSD from the Gulf War and after 7 years of military service with no drugs or treatment, he started self-medicating to survive his PTSD. He has been treated for service-connected PTSD and he has a 180 percent (sic) rating by the Department of Veterans Affairs (VA). Self-medicating with drugs and alcohol for PTSD is common. 3. The applicant provides: * VA rating decisions and progress notes * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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, and 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 11 May 1988 and held military occupational specialty 13B (Cannon Crewmember). He reenlisted on 6 November 1991. 3. He served in Korea from September 1988 to September 1989 and from August 1992 to January 1993. He also served in Southwest Asia from 20 September 1990 to 14 March 1991. He was promoted to sergeant/E-5 in December 1992. 4. On 20 September 1995, he participated in a unit urinalysis and his urine sample tested positive for cocaine. 5. On 16 October 1995, he underwent a separation physical. The examining doctor found him medically qualified for separation with no medical disqualifications. He was assigned a PULHES of "1-1-1-1-1-1." 6. On 17 October 1995, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for wrongfully using cocaine. His punishment consisted of a reduction to E-4, a forfeiture of pay, and extra duty. 7. On 16 October 1995, the applicant’s immediate commander notified him of his intent to initiate separation action against him in accordance with chapter 14 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), for misconduct. The specific reason is cited as the applicant's testing positive for drugs. His conduct was questionable and not in the good order of the Army. The commander recommended the issuance of a general discharge. 8. The applicant acknowledged receipt of the commander's intent to separate him. He consulted with legal counsel who advised him of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on future enlistments or reenlistments, 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 and elected not to submit a statement. He acknowledged he understood that: * He could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions 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 under other than honorable conditions discharge 9. On 26 October 1995, the applicant’s immediate commander initiated separation action against him in accordance with AR 635-200, paragraph 14-12b, for misconduct. His intermediate commander recommended approval with the issuance of a General Discharge Certificate. 10. On 1 November 1995, the separation authority approved the applicant's discharge from the Army under the provisions of AR 635-200, paragraph 14-12b, with an under honorable conditions (general) discharge. The applicant was accordingly discharged on 6 November 1995. 11. His DD Form 214 shows he was discharged under the provisions of paragraph 14-12b of AR 635-200 due to misconduct with a general characterization of service. He completed 7 years, 5 months, and 26 days of net active service. His DD Form 214 listed his narrative reason for separation as "misconduct" and the separation code as "JKA." 12. There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 13. He provides a VA rating decision, dated 8 October 2014, that shows he was awarded a 100 percent combined service-connected disability rating effective on different dates for various conditions, including PTSD rated at 70 percent disabling from April 2003 and 100 percent from April 2005, and then again 70 percent from July 2005. 14. The Board forwarded his VA rating decision to The Office of The Surgeon General (OTSG) for review to determine if there was a nexus between his claim of PTSD and the misconduct that led to his discharge. OTSG rendered an advisory opinion on 18 July 2016. An OTSG official references the Diagnostic and Statistical Manual of Mental Disorder, Fifth Edition; AR 40-501 (Standards of Medical Fitness); and AR 635-200. This official states: a. The applicant entered active duty on 11 May 1988 and he was discharged on 6 November 1995, under honorable conditions, in accordance with chapter 14 (Misconduct), AR 635-200. He deployed to Southwest Asia from September 1990 to March 1991. b. In May 2015, he requested that his discharge be upgraded to honorable because of PTSD. OTSG was asked to determine if the applicant's military separation was due to PTSD or any other behavioral health (BH) condition. This opinion is based solely on the information provided by the Board as the DOD electronic medical record (AHLTA) was not in use at the time. c. The applicant was separated for wrongful use of illegal drugs and asserts, "since discharge I have found out that I have PTSD from the Gulf War and after 7 years in the Army and never doing drugs or being treated that I started to self-medicate to service (sic) PTSD." The only supporting documentation provided is an October 2014 VA decision to award him 70 percent disability for service-connected PTSD. d. There is no evidence that the applicant met the criteria for PTSD at the time of his discharge, nor did he provide additional information to support his assertion. Therefore, OTSG officials are unable to determine if his separation was due to a BH condition. 15. The applicant was provided a copy of this advisory opinion to allow him an opportunity to submit a rebuttal or comments. He did not respond. REFERENCES: 1. AR 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 Soldier 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 3-7a states 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. 2. AR 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. The regulation in effect at the time of his discharge stated the SPD code of JKM was the appropriate code to assign to Soldiers separated under the provisions of AR 635-200, paragraph 14-12b due to misconduct – pattern of misconduct. 3. PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster. The American Psychiatric Association (APA) publishes the Diagnostic and Statistical Manual of Mental Disorders (DSM) 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." 4. 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. 5. 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. 6. 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 individuals 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. 7. Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge. 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: 1. The evidence of record shows the applicant served on active duty from 11 May 1988 to 6 November 1995. He deployed to Southwest Asia from September 1990 to March 1991. He displayed a pattern of misconduct by using illegal drugs (cocaine) while holding the noncommissioned officer rank/grade of SGT/E-5. Based on his misconduct, 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. 2. There is no evidence in his record and he provided none to support that he had PTSD during his military service. The only supporting documentation he provided is his post-service VA decisions to award him disability for service-connected PTSD. There is no evidence that he met the criteria for PTSD at the time of his discharge, nor did he provide additional information to support his assertion. More importantly, there is no evidence of a relationship between PTSD or any behavioral health condition and the misconduct that led to his discharge. 3. The evidence does not indicate the existence of an error or injustice in the characterization of his service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150005253 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150005253 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2