BOARD DATE: 25 May 2017 DOCKET NUMBER: AR20150017338 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: 25 May 2017 DOCKET NUMBER: AR20150017338 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: 25 May 2017 DOCKET NUMBER: AR20150017338 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) discharge to honorable. 2. He states he received a general discharge because he tested positive on a urine drug screening (UDS) while he was assigned to Fort Stewart, GA. He explains after his first deployment he seemed fine, but he was distant with his wife and daughter. He was reassigned to Fort Stewart and assigned to a new company. He started using drugs to help him cope with his new documented post-traumatic stress disorder (PTSD). He states he made a mistake, but after he got out of the military he went to support groups, joined the American Legion Riders, and spent time helping his community. He concludes that he has been clean for 2 years and he does not want his past to ruin his future. 3. He provides: * Self-authored statement * DD Form 214 (Certificate of Release or Discharge from Active Duty) * American Legion letter, dated 19 September 2014 * Letter of Recommendation * Congratulatory letter, dated 11 December 2014 * Department of Veterans Affairs (VA) documents CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 1 April 2009 and he held military occupational specialty 11B (Infantryman). He served in Afghanistan from 15 January to 29 December 2011. 2. On 26 June 2012, the applicant received a General Officer Memorandum of Reprimand (GOMOR) for driving under the influence of alcohol on 15 May 2012. The GOMOR was filed in his official military personnel file. 3. On 22 March 2013, he underwent a mental status evaluation in which it was determined he could understand and participate in administrative proceedings, could appreciate the difference between right and wrong, and met the medical retention requirements (i.e. does not qualify for a medical evaluation board). He was cleared for administrative separation under Army Regulation (AR) 635-200, (Personnel Separations – Active Duty Enlisted Administrative Separations), chapter 14-12c. Additionally, he was screened for PTSD and traumatic brain injury (TBI). The behavioral health provider stated, "These conditions are either not present or, if present, do not meet AR 40-501 [Standards of Medical Fitness] criteria for a medical evaluation board." 4. On an unknown date, the unit commander notified the applicant he was initiating action to separate him from the Army under the provisions of AR 635-200, paragraph 14-12c, misconduct – abuse of illegal drugs. Specifically, the commander stated the basis for his action was the applicant tested positive for marijuana in a unit UDS conducted on 20 February 2013. 5. On 11 April 2013, the applicant acknowledged receipt of the separation action. 6. On 29 April 2013, the applicant consulted with military counsel. After being advised of the basis for the contemplated separation action and its effects and the rights available to him, he waived consideration of his case by an administrative separation board; waive personal appearance before that board; and he elected not to submit a statement in his own behalf. He acknowledged he understood he could encounter substantial prejudice in civilian life if he received a general discharge. He further acknowledged he understood if he received a character of service that was less than honorable, he could make an application to the Army Discharge Review Board (ADRB) or the Army Board for Correction of Military Records (ABCMR) for an upgrade of his discharge. However, he understood that an act of consideration by either board did not guarantee an upgrade of his discharge. 7. On an unknown date, the separation authority approved the recommendation for discharge under the provisions of AR 635-200, paragraph 14-12c(2), for misconduct – abuse of illegal drugs and directed the issuance of a general discharge under honorable conditions. 8. On 21 May 2013, he was discharged under the provisions of AR 635-200, paragraph 14-12c(2), misconduct (drug abuse) with a characterization of service listed as under honorable conditions, general. His DD Form 214 shows he completed 4 years, 1 month, and 21 days of active service. 9. On 12 August 2013, the applicant appealed to the ADRB to upgrade his discharge. The ADRB denied his appeal on 9 May 2014 citing that the board determined he was properly and equitably discharged. 10. The applicant provides: a. An American Legion letter, dated 19 September 2014, welcoming him into their ranks and the American Legion Post 149. b. A letter of recommendation from a staff member at the Chattahoochee Technical College recommending him for reentry into the military. He expounds on the applicant's truthfulness, character, and high values. c. A congratulatory letter from the Chattahoochee Technical College Admissions Office, dated 11 December 2014, welcoming him back to the college. d. Documents from the VA indicating the applicant was diagnosed with PTSD and he is being treated at the Outpatient Mental Health Clinic in Blairsville, GA. He is also receiving a 70 percent service-connected disability rating for combat related PTSD. Additionally, he is being treated for substance abuse and has completed all sessions of the Level One Change Group as of 14 January 2015. 11. On 24 October 2016, the ABCMR obtained an advisory opinion from a psychologist at the Army Review Boards Agency (ARBA), who states the evidence provided does not support the applicant's request for upgrade. He states: a. A review of the VA records through the Joint Legacy Viewer (JLV) shows the applicant has a 70 percent disability rating from the VA for service connected PTSD. His JLV shows PTSD emerged as a diagnosis by spring of 2014. The JLV also shows VA diagnosed him with major depressive disorder (MDD), chronic pain, and insomnia. He had no PTSD or MDD diagnoses during his active-duty service. He did have diagnoses of alcohol abuse and cannabis-related disorder. He received these diagnoses after his deployment. Alcohol and drugs have remained sporadic problems. A JLV note for 23 March 2017 indicated he was facing charges, including drug possession, as a result of alleged domestic violence against his wife. The context of the violence was, according to the note, the wife’s belief that the applicant was having sex with another woman. b. In June 2012, the applicant was found driving drunk. He received a GOMOR and he was also referred to the Army Substance Abuse Program (ASAP). From 26 October 2012 until 12 February 2013, he had more or less weekly visits to ASAP. In the same month, and prior to his beginning ASAP treatment, he had a positive UDS for cannabis on 15 October 2012. He explained his use to a therapist on 1 November 2012, maintaining he used marijuana in Jasper, GA, after having a bad back from heavy lifting at his military job. No mention was made of anxiety management. c. On 20 February 2013, he had a second positive UDS for cannabis, and subsequently the command processed him for discharge. He had a pre-discharge medical examination on 27 February 2013. During this exam, he did complain of three symptoms: (1) anxiety that began after deployment; (2) lower back pain; and (3) using illegal drugs, which had to do with his positive UDS for marijuana. He had a pre-discharge mental status examination conducted on 22 March 2013. He was found fit for duty and he was cleared for administrative discharge. The examiner noted a TBI screen score of zero, a score of 18 on the psychopathy checklist, and a negative screen score for PTSD. Based on the available records, there is reason to believe he did not have active PTSD at the time of his misconduct. According to the JLV, his drug use has continued intermittently since his treatment in ASAP. Further, his drug use pre-dated his deployment. d. In regards to his drug habits before deployment, the military electronic health record (AHLTA) noted on 6 November 2012, the following: Patient reported he began using marijuana at the age of 19. He… smoked at least monthly. Patient reported that he smoked marijuana randomly approximately 1 [marijuana joint] every 3 months. Patient reported that he began drinking alcohol at the age of 21. Patient reported he drank heavy prior to joining the Army. Patient reported his drinking increased after joining the Army. Patient reported that when he returned from deployment in [January] 2012, his drinking was minimal for about 3 months. He reported after the 3 months, he was drinking every day after work. Patient's wife is supportive of him not using. Patient's wife is not aware of his recent positive UDS. Patient denies using spice. e. The applicant’s medical records do NOT at the time of his discharge reasonably support him having had a boardable medical condition for his period of service. He did meet the mental health standards in AR 40-501 and AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation). The available case material did NOT support the existence of a mitigating mental health condition at the time of his misconduct. Based on available behavioral-health evidence, there is insufficient evidence to attribute his drug abuse to PTSD. His own testimony about his cannabis use in October 2012 referenced pain, not anxiety. The use of drugs was also not new to him. The command may have given him a general discharge, rather than an under other than honorable conditions (UOTHC) discharge, out of respect for his service in Afghanistan. f. In conclusion the applicant met the medical retention standards in accordance with chapter 3, AR 40-501, and the provisions set forth in AR 635-40 that were applicable at the time. His mental-health conditions were considered at the time of his discharge. A review of available documentation did not discover evidence of mental health considerations that bears on the character of the discharge in this case. A mitigating nexus between the applicant’s misconduct and his mental health was not discovered. 12. On 2 May 2017, the advisory opinion was forwarded to the applicant for his acknowledgement and/or response. No response was received. 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 include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and abuse of illegal drugs. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions 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. 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. AR 600-85 (The ASAP) provides policies and procedures to implement, administer, and evaluate the ASAP. a. Paragraph 3-7 states the unit commander will refer individuals suspected or identified as alcohol and/or other drug abusers, including those identified through urinalysis and/or blood alcohol tests, to the ASAP counseling center for screening. b. An initial interview will be conducted and if after the initial interview further in-depth assessment is warranted, the ASAP clinician will advise the unit commander and initiate a comprehensive individual biopsychosocial assessment. Command input into this assessment is essential. If a unit commander believes a Soldier does not have potential for future service, the Soldier will be processed for administrative separation in accordance with AR 635-200, as appropriate. If treatment is clinically indicated, the Soldier will be provided treatment until separation. 3. AR 40-501 provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his office, grade, rank or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 4. AR 635-40 establishes the Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. It provides for a medical evaluation board that is convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in AR 40-501, chapter 3. Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. a. Paragraph 2-1 provides that the mere presence of impairment does not of itself justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. b. Paragraph 2-2b(1) provides that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his or her continued performance of duty (until he or she is referred to the PDES for evaluation for separation for reasons indicated above) creates a presumption that the member is fit for duty. Except for a member who was previously found unfit and retained in a limited assignment duty status in accordance with chapter 6 of this regulation, such a member should not be referred to the PDES unless his or her physical defects raise substantial doubt that he or she is fit to continue to perform the duties of his or her office, grade, rank, or rating. c. Paragraph 2-2b(2) provides that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that the member, in fact, was physically unable to adequately perform the duties of his or her office, grade, rank, or rating even though he or she was improperly retained in that office, grade, rank, or rating for a period of time and/or acute, grave illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability rendered him or her unfit for further duty. 5. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. 6. 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." 7. 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. 8. 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) (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. (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. (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. (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). (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 (6) 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. 9. 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 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. 10. 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. 11. 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? 12. Although the 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 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: 1. The applicant argues, in effect, that his discharge should be upgraded because his indiscipline was based on PTSD. 2. The evidence of record shows the applicant tested positive for marijuana on two separate occasions. In accordance with AR 600-85, as cited above, the commander will refer individuals identified through urinalysis to the ASAP counseling center for screening. If the unit commander believes a Soldier does not have potential for future service, the Soldier will be processed for administrative separation. 3. On 22 March 2013, the applicant underwent a mental status evaluation in which the behavioral health provider screened him for PTSD and stated the condition is either not present or, if present, does not meet AR 40-501 criteria for a medical evaluation board. 4. Additionally, a review of the applicant's case by a psychologist found no documentation in his military records that shows he met criteria for PTSD or any other psychiatric disorder while he was in the Army. Based on available behavioral-health evidence, there is insufficient evidence to attribute the applicant's drug abuse to PTSD. The applicant met the medical retention standards that were applicable at the time. 5. The applicant turning his life around, completing a substance abuse treatment program, and returning to school is commendable and is noted. Good post-service conduct alone is not normally a basis for upgrading a discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017338 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017338 13 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2