IN THE CASE OF: BOARD DATE: 22 November 2016 DOCKET NUMBER: AR20150010442 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: 22 November 2016 DOCKET NUMBER: AR20150010442 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 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: 22 November 2016 DOCKET NUMBER: AR20150010442 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 discharge under other than honorable conditions (UOTHC) to honorable. 2. The applicant states: a.  He enlisted in the Army at age 17 in October 2001, 1 month after the attacks on America and he was proud to serve his country. b.  He was terrified on his way to Afghanistan and he did not know what to expect. It was his first time away from home and the country was at war. When he arrived in Afghanistan, his unit was given a briefing and told they would be issued a drug for malaria every Wednesday. He was no longer afraid, but angry as the weeks went on. After 6 months of bombs exploding and seeing maimed and mangled Soldiers, he was numb. c.  When he arrived back in the United States, the Soldiers in his unit who had not deployed were being deployed and it was very confusing for him to adjust to the quietness. He was always angry and he suffered with headaches and nightmares. He told his sergeant how he was feeling and he was told to go see a chaplain, who told him to "keep the faith." He felt like a failure at this point and weak for complaining. He stayed to himself and tried to deal with his issues as best as he could. d.  Everything started to go wrong in his life; he did not know how to handle it and he did not care. He was self-medicating to make his life tolerable. He was absent without leave (AWOL) after he failed his urinalysis. He was homeless and sleeping on benches and at bus stops. He was reduced to panhandling to get food to eat. He returned to military control a few times and was AWOL again. He was "chaptered out" and he received a discharge UOTHC the last time he returned. e.  When he returned home, he told his mother he was always angry and having headaches. He was lashing out at family members and he could not control his emotions. His mother suggested he seek help at the Department of Veterans Affairs (VA), which he did. However, he was told he was not entitled to any benefits. Again, he was depressed, feeling there was no hope, and out of control by self-medicating. He was arrested for drugs and the blessing in the arrest was that the judge saw that he had been to Afghanistan and ordered a psychiatric evaluation. His VA medical benefits card came in the mail following his arrest. After being evaluated by the VA, he went away to a VA drug program where he learned he was sick and it was alright to ask for help. He has been under the VA's medical care since his first evaluation. f.  He questions if his life would have been different had he received help upon his return from Afghanistan or help from the VA when he first asked. There were incidents involving members of his squadron in the 82d Airborne Division in which they killed their spouses upon returning. g.  His life would be different had the same 2015 post-deployment programs been in place in 2003. He and members of his unit were ordered to take the drug Larieum (mefloquine hydrochloride) without being provided a listing of side effects or advised whether the drug was approved by the Federal Drug Administration. h.  He appeared before the Army Discharge Review Board (ADRB). The board voted 3 to 2 to upgrade his discharge, but the board president disagreed and had the decision overturned by the Deputy Assistant Secretary of the Army (Review Boards). He was asked to provide copies of his VA records and the decision was not overturned. He takes responsibility for his actions and he has nothing against the board president; however, the board president's comment that combat does not make you act out was very hurtful because the board president never entered combat. Further, the final response denying his upgrade did not come from the Secretary of the Army, but from the board president. i.  He understands the board president can overturn a decision; however, he questions why the Army Review Boards Agency website states a discharge can be upgraded with a 3-to-2 vote but does not show in bold print that this decision can be overturned. This gives false hope. 3. The applicant provides no additional evidence. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 25 October 2001 in the rank/grade of private/E-1. 2. His records show he served in Southwest Asia during the period 8 September 2002 through 23 March 2003. 3. On 1 May 2003, he was advanced to the rank/grade of specialist/E-4. 4. On 20 February 2004, his duty status changed from present for duty to AWOL. 5. On 24 February 2004, his duty status changed from AWOL to present for duty. 6. A U.S. Army Criminal Investigation Command Report of Investigation, dated 25 March 2004, shows his commander initiated an investigation after he tested positive for cocaine during a routine unit urinalysis inspection on 2 March 2004. A trial counsel of the staff judge advocate's office opined there was probable cause to believe the applicant committed wrongful use of a controlled substance. 7. On 24 March 2004, he was enrolled in the Army Substance Abuse Program. 8. His DA Form 4856 (Developmental Counseling Form), dated 30 March 2004, shows he was counseled for wrongfully using a controlled substance and failing to obey an order or regulation. He was advised that continued conduct of this nature could result in the initiation of a bar to reenlistment; administrative action, to include his separation; and/or punitive actions in accordance with the Uniform Code of Military Justice. He was also advised of the recommendation for nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice. 9. On 22 April 2004, his duty status changed from present for duty to AWOL. 10. On 23 April 2004, his duty status changed from AWOL to present for duty. 11. On 26 April 2004, he was determined to be a rehabilitation failure due to his failure to: * appear for his individual counseling session on 19 April 2004 * appear for his clinical evaluation and psychotherapeutic educational group on 20 April 2004 * failure to respond to any telephone calls after several attempts were made to contact him through his chain of command 12. On 27 April 2004, his duty status changed from present for duty to AWOL. 13. On 29 April 2004, his duty status changed from AWOL to present for duty. 14. On 29 April 2004, charges were preferred against him for: * wrongfully using cocaine on or about 2 March 2004 * being AWOL on or about 27 April 2004 until on or about 29 April 2004 15. His duty status changed as follows: * 5 May 2004 – present for duty to AWOL * 6 June 2004 – AWOL to dropped from the rolls * 10 June 2004 – dropped from the rolls to present for duty * 16 June 2004 – present for duty to AWOL * 16 July 2004 – AWOL to dropped from the rolls * 26 July 2004 – dropped from the rolls to present for duty 16. On 27 July 2004 after consulting with counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 10. He acknowledged his guilt and that: * although he was furnished legal advice, the decision was his own * he understood he could be discharged UOTHC * as a result of such a discharge, he would be deprived of many or all Army benefits and he would be ineligible for many or all benefits administered by the VA * he could be deprived of his rights and benefits as a veteran under Federal and State laws * he could expect to encounter substantial prejudice in civilian life because of an undesirable discharge 17. His chain of command recommended approval of his request for discharge under the provisions of Army Regulation 635-200, chapter 10, with his service characterized as UOTHC. 18. On 2 August 2004, the separation authority approved the applicant's request for discharge, directed his service characterization as UOTHC, and his reduction to private/E-1. 19. On 6 August 2004, he was discharged accordingly. His DD Form 214 shows he completed 2 years, 6 months, and 19 days of creditable active military service and he had lost time during the periods 20 February 2004 through 23 February 2004, 22 April 2004, 27 April 2004 through 28 April 2004, 5 May 2004 through 9 June 2004, and 16 June 2004 through 25 July 2004. 20. ADRB records show: a.  On 5 December 2011, he appeared before the ADRB. A board of five officers heard his testimony and voted by majority, 3 to 2 to change the character of his discharge from UOTHC to general under honorable conditions. b.  Subsequent to his testimony on 5 December 2011, he stated he was in possession of VA documents diagnosing him with PTSD. Although requested, he failed to provide these documents for ADRB consideration. c.  On 7 February 2012, he was informed of the dissenting opinion and he was asked to provide a rebuttal or additional comments. In late March 2012, he provided a response. His seven-page memorandum briefly discussed his family, faith, and military achievements. It further summarized the challenges he had upon his return from Afghanistan, his treatment, and reiterated much of the same arguments made during his hearing on 5 December 2011. As new evidence, he provided a memorandum from a licensed clinical social worker who stated he was under the care of the VA Medical Center, Washington, DC, and that he had been diagnosed with both being bipolar and having PTSD. d.  The ADRB erred on the side of the applicant and had the Army Review Boards Agency Medical Advisor review all of his evidence, to include his testimony, and vote. The cumulative result of the subsequent board review and revote resulted in no vote change. e.  The board president requested a review of the case by the Deputy Assistant Secretary of the Army (Review Boards) to exercise authority to overrule the board's vote and leave both his character and reason for discharge unchanged. He stated the board's decision was not supportable for the following reasons: (1)  The applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, with the understanding that he could receive a discharge characterization of UOTHC. (2)  He committed two additional incidents of being AWOL after charges were preferred, totaling 76 days. (3)  Notwithstanding his receipt of the Army Commendation Medal, many Soldiers return from a combat environment and do not commit the offenses of AWOL and illegal drug use. (4)  Regarding his testimony of his mental state, he provided no medical evidence to corroborate his contention that he suffered from bipolar disorder or PTSD, or that he suffered side effects from taking malaria medication. (5)  He stated he was diagnosed as being bipolar and suffering from PTSD by the VA and the board requested that he provide any corroborating medical documentation to support his contention. He provided a memorandum from a clinical social worker stating he was diagnosed as being bipolar and suffering from PTSD. No other documents were provided. f.  On 29 May 2012, the Deputy Assistant Secretary of the Army (Review Boards) concurred with the ADRB President and overruled the board majority. 21. On 4 June 2012, he was notified of the ADRB decision to deny his request for an upgrade of his discharge. 22. On 6 August 2015, the Army Review Boards Agency Case Management Division requested medical documentation from him to support his claim of PTSD. 23. On 19 August 2015, he provided a copy of a letter from a staff psychiatrist at the VA Medical Center, Washington, DC, dated 14 August 2015, which shows he had been in his care since February 2008, he suffered from PTSD, and he had a diagnosis of bipolar disorder. 24. On 12 September 2016, the Army Review Boards Agency Clinical Psychiatrist provided an advisory opinion in which she stated there is evidence he suffered from PTSD during his military service and this was a behavioral health condition that was mitigating for the offenses which led to his discharge. He likely had undiagnosed PTSD while serving on active duty, and because PTSD can be associated with the use of illicit drugs for self-medication and avoidant behaviors, there was a likely nexus between his cocaine use, being AWOL, and his PTSD. 25. On 14 September 2016, a copy of the advisory opinion was sent to the applicant for review and for an opportunity to provide a response. 26. On 29 September 2016, the applicant provided a response in which he concurred with the advisory opinion. He further stated, in part, he did not know what was going on with himself at the time, but he knew something was wrong. He felt lost and alone after expressing his feelings to his chain of command. His family and friends did not want to be around him because his behavior was unpredictable and unstable. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a.  Chapter 10, in effect at the time, provided that a member who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge UOTHC was normally considered appropriate. 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. c.  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. 2. Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing promotions and reductions of Army enlisted personnel. Paragraph 10-1 provides that when the separation authority determines a Soldier is to be discharged from the service UOTHC, he or she will be reduced to the lowest enlisted grade. 3. The Diagnostic and Statistical Manual of Mental Disorders (DSM), chapter 7, addresses trauma and stress or related disorders. The DSM is published by the American Psychiatric Association (APA) and provides standard criteria and common language for 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." 4. 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. 5. 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. 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): (1)  direct exposure; (2)  witnessing, in person; (3)  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; or (4)  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): (1)  recurrent, involuntary, and intrusive memories; (2)  traumatic nightmares; (3)  dissociative reactions (e.g., flashbacks) which may occur on a continuum from brief episodes to complete loss of consciousness; (4)  intense or prolonged distress after exposure to traumatic reminders; or (5)  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): (1)  trauma-related thoughts or feelings; or (2)  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): (1)  inability to recall key features of the traumatic event (usually dissociative amnesia; not due to head injury, alcohol, or drugs); (2)  persistent (and often distorted) negative beliefs and expectations about oneself or the world (e.g., "I am bad," "The world is completely dangerous"); (3)  persistent distorted blame of self or others for causing the traumatic event or for resulting consequences; (4)  persistent negative trauma-related emotions (e.g., fear, horror, anger, guilt, or shame); (5)  markedly diminished interest in (pre-traumatic) significant activities, feeling alienated from others (e.g., detachment or estrangement); and (6)  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): (1)  irritable or aggressive behavior, (2)  self-destructive or reckless behavior, (3)  hypervigilance, (4)  exaggerated startle response, (5)  problems in concentration, and (6)  sleep disturbance. f.  Criterion F – Duration: Persistence of symptoms (in Criteria B, C, D, and E) for more than 1 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. 6. 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 UOTHC 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 of time. 7. On 3 September 2014 in view of the foregoing information, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service 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 applicants' service. 8. 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? 9. Although DOD 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. 10. The ADRB is authorized to review the character, reason, and authority of a discharge of any service member discharged from active military service within the past 15 years. The authority for ADRB review comes from Public Law 95-126 and Title 10, U.S. Code, section 1553. Army Regulation 15-180 (ADRB) governs the actions and composition of the ADRB. 11. Department of Defense Directive 1332.28 (Discharge Review Board Procedures and Standards) establishes uniform policies and procedures and standards for review of discharges and dismissals. Paragraph D (Responsibilities) states the Secretaries of Military Departments have the authority for final decision and the responsibility for the operation of their respective discharge review programs under Title 10, U.S. Code, section 1553. DISCUSSION: 1. The applicant was charged with the commission of offenses punishable under the Uniform Code of Military Justice with a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. 2. He voluntarily requested discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. He was discharged accordingly effective 6 August 2004. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. The type of discharge directed and the reasons for separation were appropriate considering the available facts at the time. 3. Although he questions the authority and decision of the ADRB, the overturning of the 3-to-2 vote to grant an upgrade of his discharge was within the authority of the Deputy Assistant Secretary of the Army (Review Boards). 4. At the time of his discharge, PTSD was largely unrecognized by the medical community and DOD. However, both the medical community and DOD now have a more thorough understanding of PTSD and its potential to serve as a causative factor in a Soldier's misconduct when the condition is not diagnosed and treated in a timely fashion. An advisory official has opined that because PTSD can be associated with the use of illicit drugs for self-medication and avoidant behaviors, there was likely a nexus between his cocaine use, being AWOL, and his PTSD. 5. Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible recharacterization of their overall service. 6. In the absence of a discharge UOTHC, there is no regulatory authority for reduction to the lowest enlisted grade. A decision to grant relief by upgrading the character of his service to general under honorable conditions would therefore require restoration of his rank/grade to specialist/E-4 with an effective date of 5 August 2004. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010442 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010442 13 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2