BOARD DATE: 6 October 2016 DOCKET NUMBER: AR20150008625 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 BOARD DATE: 6 October 2016 DOCKET NUMBER: AR20150008625 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. BOARD DATE: 6 October 2016 DOCKET NUMBER: AR20150008625 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 honorable conditions (general) characterization of service and correction to his narrative reason for separation. 2. The applicant states based on the 2014 new rule regarding post-traumatic stress disorder (PTSD), his discharge should be upgraded. He deployed to Afghanistan twice and received the Purple Heart. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Purple Heart Certificate – wounded in action on 18 December 2009 * General Officer Memorandum of Reprimand (GOMOR) dated 14 May 2009 * Army medical treatment records * Army separation packet * Department of Veterans Affairs (VA) medical records (post-service) * VA service-connected disability letter dated 29 September 2015 * 2014 Department of Defense (DOD) Supplemental Guidance Memorandum * USAA congratulatory letter * Argosy University documents * Wells Fargo employment letter 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 21 June 2006 and he held military occupational specialty 88M (Motor Transport Operator). He served in Afghanistan from 9 February 2007 to 19 April 2008. He reenlisted on 20 March 2009. 3. On 14 May 2009, he was reprimanded by the Deputy Commanding General (DCG), 82nd Airborne Division, for driving while impaired. He was arrested in Arizona while operating a vehicle with a blood alcohol content of 0.11 percent. The imposing general officer ordered the reprimand filed in the applicant?s local (unit) file. 4. He again served in Afghanistan from 15 August 2009 to 24 December 2009. 5. On 10 November 2010, he was reprimanded by the CG, 82nd Airborne Division, Fort Bragg, for driving while impaired. He had been arrested by Fayetteville Police for driving while impaired, careless and reckless driving, speeding to elude arrest, failing to stop at a signal, and failing to maintain his lane. A breathalyzer test determined his blood alcohol content was 0.11 percent. Consistent with his chain of command's recommendations, the CG ordered the GOMOR filed in his official military personnel file, especially since this was his second driving under the influence (DUI) offense. 6. His records show he was frequently counseled by his chain of command for various infractions including failing the Army Physical Fitness Test (APFT) on two consecutive occasions. 7. On 16 February 2011, the applicant underwent a physical at Womack Army Medical Center, Fort Bragg. The examining medical doctor found him medically qualified for retention and assigned him a PULHES of "1-1-1-1-1-1." He did note the applicant received shrapnel wounds and a concussion from an improvised explosive device in 2009. He diagnosed the applicant with alcohol abuse and questioned whether or not the applicant had combat stress issues. He recommended the applicant follow up with the VA for further evaluation and possible treatment. 8. On 21 March 2011, the applicant underwent a mental status evaluation by an Army psychologist due to his repeated acts of misconduct. He was found to have normal behavior, unremarkable mood, clear thinking process, good memory, and full level of orientation. It was noted the applicant received treatment for adjustment disorder however, his records show he was non-compliant with treatment. His diagnosis was alcohol abuse. The examining psychologist noted the applicant did not exhibit PTSD symptoms during the examination and he was asymptomatic for traumatic brain injury (TBI). The psychologist conclude the applicant was mentally responsible and had the mental capacity to understand and participate in administrative proceedings. He met the retention requirements of chapter 3 of Army Regulation (AR) 40-501 (Standards of Medical Fitness). He was psychiatrically cleared for administrative separation. 9. On 22 March 2011, his immediate commander notified him of his intent to initiate separation action against him in accordance with AR 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12(c), commission of a serious offense. The commander stated the reason for separation action was the applicant's arrest by the Fayetteville Police for driving with a blood alcohol content of 0.11 percent on 3 November 2010. This was his second DUI offense. The commander recommended an under honorable conditions (general) discharge. 10. The applicant acknowledged receipt of his commander's intent to separate him. He consulted with legal counsel who advised him of the basis for the contemplated separation for misconduct, the type of discharge he could receive and its effect on future enlistment or reenlistment, the possible effects of this discharge, and of the procedures and rights that were available to him. He was advised that as he had less than 6 years of service he was not authorized consideration by an administrative separation board unless he was considered for an under other than honorable conditions discharge. He elected to submit a statement in his own behalf, but failed to do so as certified by the battalion legal specialist. He acknowledged he understood that: * he could expect to encounter substantial prejudice in civilian life if he received a general under honorable conditions discharge * 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 11. Subsequent to the applicant's acknowledgement, his commander initiated separation action against him in accordance with AR 635-200, paragraph 14-12c, for misconduct. The immediate commander recommended an under honorable conditions discharge. The commander opined that the applicant's retention would have an adverse impact on good order and discipline and the applicant had not shown any propensity to change his behavior. Additionally, the applicant has also failed to maintain body fat standards and physical fitness standards. On 1 April 2011, his intermediate commander recommended approval of the discharge action with the issuance of an under honorable conditions discharge. 12. On 4 April 2011, the separation authority approved the applicant’s discharge under the provisions of AR 635-200, paragraph 14-12c, due to misconduct – commission of a serious offense and directed issuance of an under honorable conditions (general) discharge. On 27 April 2011 the applicant was discharged. 13. His DD Form 214 shows he was discharged under the provisions of chapter 14 of AR 635-200 by reason of misconduct (serious offense) with an under honorable conditions (general) characterization of service. He completed 4 years, 10 months, and 7 days of active service. His awards include the Purple Heart, Combat Action Badge and the Afghanistan Campaign Medal with two bronze service stars. 14. On 6 November 2013, the Army Discharge Review Board (ADRB) reviewed his discharge and found it proper and equitable. The ADRB denied his request for an upgrade of his discharge. 15. He provides several in-service and post-service medical documents. The Board forwarded his documents to the Office of The Surgeon General (OTSG) for review. OTSG rendered an advisory opinion on 10 August 2016. a. OTSG was asked to determine if the applicant met the criteria for PTSD at the time of his separation. This opinion is based on the information provided by the Board and records available in the DOD electronic medical record (Armed Forces Health Longitudinal Technology (AHLTA)). b. During a post-deployment health assessment on 28 December 2009, the applicant reported nightmares, avoidance behaviors, and hypervigilance. On 21 March 2011, he was psychiatrically cleared for administrative separation, with the statement: "[member] does not exhibit symptoms of PTSD." On the same day he was evaluated in the traumatic brain injury (TBI) clinic for an IED blast exposure in December 2009. He was determined to be positive for TBI but asymptomatic and was diagnosed with acute reaction to stress with disturbance of emotions. Service records indicate he was treated for alcohol dependence. c. VA records indicate that on 7 January 2013, he was diagnosed with PTSD and a history of TBI. His Compensation and Pension Examination (CP&E) conducted on 15 August 2013, confirmed a PTSD diagnosis and cited "occupational and social impairment with reduced reliability and productivity." No specific stressor was mentioned. In July, he told the VA he was being seen for psychotherapy at the Vet Center but in October requested PTSD therapy at the VA, which he discontinued after two sessions. He is rated 50 percent service-connected for PTSD. d. There is no documentation showing the applicant met criteria for PTSD during his military service. The presence of potentially untreated symptoms at the time of the misconduct does not mitigate his actions as the nature of PTSD symptoms is not reasonably related to his repeated failure to use good judgment while operating a motor vehicle. 17. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal and/or additional comments. He did not respond. REFERENCES: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged for misconduct. b. 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. 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 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 nosologic classification scheme. Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice. From a 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." 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. 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 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 Soldiers' 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 a temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues for an extended period. 6. On 3 September 2014 in view of the foregoing information, 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 under other than honorable conditions 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 applicants' service. 7. 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? 8. Although 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 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 under other than honorable conditions 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 under other than honorable conditions. 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 AND CONCLUSIONS: 1. The evidence of record shows the applicant committed a serious offense when he was apprehended by the Fayetteville Police for driving with a blood alcohol level content of 0.11 percent in November 2010. This was his second offense. Accordingly, his commander initiated separation action against him for serious misconduct. 2. All requirements of law and regulation were met and the rights of the applicant appear to have been fully protected throughout the separation process. The preponderance of evidence shows the applicant?s discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel. 3. There is no evidence of record and he provides none to support his contention that he was wrongfully or unjustly discharged. His continued misconduct clearly shows the quality of his service was diminished below that meriting an honorable discharge. It appears the separation authority took into consideration his two combat tours and Purple Heart when he directed the applicant receive a general under honorable conditions discharge. Notwithstanding his combat history, his record of indiscipline is not in conformance with acceptable standards of conduct thus his service does not rise to the level expected for an honorable discharge. 4. When the applicant was discharged in 2011, he was psychiatrically cleared for administrative separation with a medical note that he did not exhibit symptoms of PTSD. He evaluated in the TBI clinic for an IED blast exposure in December 2009. He also was treated for alcohol dependence. Despite the absence in his service medical records supporting the existence of PTSD as a contributing factor to his misconduct, his post-separation VA diagnosis supports a conclusion that he may have developed PTSD after his discharge. 5. In 2013, the VA diagnosed him with PTSD and history of TBI. His August 2013 VA C&P examination confirmed a PTSD diagnosis and cited he had occupational and social impairment with reduced reliability and productivity. The VA awarded him a 50 percent service-connected disability rating for PTSD. 6. An advisory official notes there is no documentation showing he met the criteria for PTSD during his military service that would have required further medical evaluation or entrance into the physical disability evaluation system. The presence of potentially untreated symptoms at the time of his service does not mitigate his misconduct because PTSD symptoms are not reasonably related to his repeated failures to use good judgment while operating a motor vehicle. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150008625 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150008625 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2