IN THE CASE OF: BOARD DATE: 4 August 2016 DOCKET NUMBER: AR20150017926 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: 4 August 2016 DOCKET NUMBER: AR20150017926 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: 4 August 2016 DOCKET NUMBER: AR20150017926 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, in effect, correction of item 25 (Separation Authority), item 26 (Separation Code), and item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect that he was honorably discharged by reason of permanent disability due to PTSD. 2. The applicant states, in effect: a. On 1 November 2013, the Department of Veterans Affairs (VA) found him to be service-connected disabled due to post-traumatic stress disorder (PTSD) and entitlement to benefits. On 1 September 2015, the VA also found his characterization of service for the period 17 January 2006 to 10 January 2008 honorable. b. He believes he should have been medically discharged from the Army due to PTSD that he developed as a result of deployment to a combat zone. 3. The applicant provides his DD Form 214, two letters from the VA, and a VA Rating Decision. 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 17 January 2006 and held military occupational specialty (MOS) 63B (Wheeled Vehicle Mechanic). He was assigned to the 2nd Battalion (BN), 82nd Combat Aviation Brigade (CAB), 82nd Airborne Division, Fort Bragg, NC. On 17 July 2006, he was promoted to the rank/grade of private first class (PFC)/E-3. 3. On 22 January 2007, he deployed to Afghanistan with his assigned unit. In early July 2007, he was granted emergency leave to return home due to his father's illness. He was attached to the Rear Detachment, 2nd BN, 82nd CAB, Fort Bragg and was scheduled to return to Afghanistan on 22 July 2007. 4. On 24 July 2007, he reported to Behavioral Health, Womack Army Medical Center (WAMC), Fort Bragg, and requested assistance dealing with depression. 5. In a memorandum to his commander, dated 30 July 2007, subject: Mental Health Evaluation of [The Applicant], a psychiatrist with WAMC stated: a. The applicant was seen as an inpatient between 26 and 30 July 2007 at WAMC. The mental evaluation status showed his behavior was cooperative, he was fully alert and oriented, his affect was euthymic, his thinking processes was clear, and he had no current suicidal/homicidal thoughts or perceptual disturbances. b. He was diagnosed with adjustment disorder with mixed disturbance of emotions and conduct, alcohol abuse versus dependence, and antisocial and borderline personality traits. He had the mental capacity to participate in proceedings and was mentally responsible and able to distinguish between right and wrong. c. The applicant should be considered potentially dangerous to self and closely monitored by the unit. He should not have access to weapons or ammunition on or off-post and the command was encouraged to conduct a health and welfare inspection to ensure he was not in possession of those items. He should not consume alcohol and the command was advised to issue an order forbidding any use of alcohol on or off-post. d. He did not have a psychiatric condition which would warrant disposition through medical channels and was psychiatrically cleared for whatever administrative action deemed appropriate by his command. His present state of emotional and/or behavioral dysfunction was of such severity that his ability to perform his military duties was significantly impaired. The condition met the criteria in Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17, for administrative separation. Command was advised to consider this action to be in the best interest of the Soldier as well as the Army. e. The applicant had personality traits that predisposed him to behavioral and/or emotional dysfunction during times of perceived or actual stress. He would follow up with mental health on 1 August 2007 and a command referral to the Army Substance Abuse Program (ASAP). 6. On a DA Form 2823 (Sworn Statement), dated 30 July 2007, the applicant stated, in part: a. On 22 July 2007, he was scheduled to depart back [to Afghanistan] on a flight from Fayetteville, NC, at 1335 [hours]. He was really depressed about his father's condition and life in general and was driving around trying to calm down. When he looked at the time it was already 1300, so he went to the airport and asked for the next flight out and it was rescheduled for 24 July 2007. b. He went to see his father and when he came back he was not feeling well mentally so on 24 July 2007 he called a chaplain and made an appointment to see him that day. After he talked to the chaplain, they decided to send him to WAMC to be looked at. He talked with Major (MAJ) P in mental health and was told he was absent without leave (AWOL) and to report to his commander. c. He talked to his command and was told to report for formation the following day at 0630. He then talked to the captain (CPT), they called his forward unit [in Afghanistan], and they decided he needed to catch the next flight back. He tried to tell them that he had problems with his mental health but was told he still needed to take the next flight back. Because no one had helped him; he went right home, got drunk, and was "throwing pills down" until he passed out. His spouse got home at 1700 and found him and he was rushed to the local hospital's emergency room (ER). They treated him and then sent him to WAMC. 7. On 22 August 2007, he was counseled by Sergeant First Class (SFC) JWR for missing movement to avoid redeploying, failing to follow a direct order given by the rear detachment commander to go to the SATO travel office to get a ticket and report back to the unit, and attempting to harm himself to avoid a deployment. The DA Form 4856 (Developmental Counseling Form), dated 22 August 2007, stated, in part: a. On 24 July 2007, he called SFC JWR and said he was at the end of his emergency leave and missed his flights on 22 and 24 July 2007. He was instructed to show up for physical training (PT) formation. On 25 July 2007, he showed up for PT in duty uniform and the commander, CPT C, called him out of formation and questioned him about his issues and why he went to mental health before contacting the unit. He was told to report to the BN at 0900 to see CPT C. b. CPT C discussed his issues, called his forward commander to let them determine the course of action, and was told he needed to return to Afghanistan as there were facilities there that could aid him. CPT C then gave him a direct order to go to SATO and pick up his airline ticket for his return flight; however, he failed to do so. On 26 July 2007, SFC JWR was called by WAMC and told he was admitted after a nonlethal attempt to harm himself; he was not released until 31 July 2007. c. He was advised if he was involuntarily separated under the provisions of AR 635-200, chapter 14, he could receive an honorable, general, or under other than honorable conditions discharge and may be ineligible for many or all traditional benefits.. 8. On 22 October 2007, he underwent a second metal health evaluation. The DA Form 3822 (Report of Mental Status Evaluation), dated 22 October 2007, shows the examining psychologist found: a. The applicant's behavior was normal, he was fully alert and orientated, his mood was unremarkable, his thinking process was clear, and thought content was normal. He met the retentions standards of AR 40-501 (Standards of Medical Fitness), chapter 3. b. He was mentally responsible for his behavior, could distinguish right from wrong, and possessed sufficient mental capacity. There was no evidence of an emotional or mental disorder of psychiatric significance to warrant disposition through medical channels and he was cleared for any administrative action deemed appropriate by his command. He was diagnosed with adjustment disorder (per history); alcohol abuse, in remission; and personality disorder (per history), not otherwise specified (NOS). 9. On 29 October 2007, he underwent a medical evaluation. The DD Form 2808 (Report of Medical Examination), dated 29 October 2007, shows the examining physician noted the applicant did not have any physical defects and had been diagnosed with an adjustment disorder. He was on medication for the disorder and was being followed up with psychological care and ASAP treatment. His PULHES was 1-1-1-1-1-1. 10. On 31 October 2007, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for: * failing to report at the prescribed time to his place of duty, Atlanta GA International Airport * disobeying a lawful order * making a false official statement with the intent to deceive when he told CPT C that he did not know why his flight was rescheduled * intentionally injuring himself by taking non-prescription medicine * his punishment included reduction from PFC to private (PV1)/E-1 11. On 20 November 2007, his immediate commander notified him of his intent to initiate separation action against him under the provisions of AR 635-200, paragraph 14-12c, for the commission of a serious offense. Specifically, he cited his failure to report at the prescribed time, disobeying a lawful order, making a false official statement, and intentionally injuring himself. His commander also stated he was recommending he receive an under other than honorable conditions characterization of service 12. On 20 November 2007, he acknowledged receipt of the commander's intent to initiate separation action against him. On 26 November 2007, he consulted with legal counsel and was advised of the basis for the contemplated separation action, the type of discharge he could receive, and its effect on further enlistment or reenlistment, the possible effects of this discharge, and the procedures and rights available to him. He declined to submit a statement in his own behalf. 13. On 28 November 2007, his intermediate and senior commanders recommended approval of the separation action with an under other than honorable conditions characterization of service 14. On 6 December 2007, the separation authority approved the separation action and directed his service be characterized as under other than honorable conditions. On 10 January 2008, he was discharged accordingly. 15. His DD Form 214 confirms he was discharged in the rank of PV1 under the provisions of AR 635-200, paragraph 14-12c, by reason of misconduct - commission of a serious offense, with an under other than honorable conditions characterization of service. 16. His record is void of any evidence that shows he was diagnosed with any medical/mental condition while serving on active duty that was found to be unfitting and resulted in his being unable to permanently perform his military duties. His available record is void of any evidence that shows he received a permanent profile of "3" while serving on active duty that would permanently prevent him from performing his military duties. 17. On 27 June 2011, the Army Discharge Review Board denied his request for an upgrade of his discharge to a general or honorable discharge and found his discharge was both proper and equitable. 18. The applicant provides: a. A letter from the VA, dated 11 September 2014, wherein it stated they decided his service for the period 17 January 2006 to 10 January 2008 was considered honorable and entitlement was established to all benefits administered by the VA. He was entitled to health care for any disabilities determined to be service-connected for the period 17 January 2006 to 10 January 2008 b. A VA Rating Decision, dated 20 October 2014, wherein it stated they made a decision regarding his claim and were granting him 50 percent (%) disability for PSTD (claimed as depression, anxiety, and personality disorder) effective 10 October 2013 (emphasis added). 19. In the processing of this case an advisory opinion was received from the Chief, Behavioral Health Division, Office of The Surgeon General (OTSG) on 10 May 2016. The advisory official recommended denial of the applicant's request and stated his opinion was based on the information provided by the Board and records available in the Department of Defense electronic medical record (AHLTA). The advisory official opined: a. In July 2007, the applicant returned from deployment on emergency leave when his father was diagnosed with cancer. He described himself as really depressed about his father's condition and life in general. When he was cleared by behavioral health to return to theater, he presented at the ER "after taking a few of everything from random bottles of meds, and drinking alcohol." b. On 24 July 2007, at his intake evaluation the examiner observed that the applicant did not want to return to deployment and made several provocative statements regarding injury to self and others. These were seen as manipulative as the applicant did not want to die and did not identify any person he might hurt outside of whoever ticked him off. He was diagnosed with adjustment disorder with anxiety and antisocial personality disorder. The AHLTA shows that he also received addiction treatment at this time. c. In 2014, the VA determined he was entitled to health care for any disabilities determined to be service-connected for his service from 17 January 2006 to 10 January 2008. There is no indication to what disability this referred to or how the decision was reached. There is no evidence that the applicant met the criteria for PTSD at the time of his discharge. A diagnosis of acute adjustment disorder with anxiety does not mitigate the charges of disobeying a lawful order, making a false statement, and intentionally injuring himself. 20. On 17 May 2016, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal; however, no response was received. REFERENCES: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 of the version in effect at the time established policy and prescribed 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. 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. c. Paragraph 3-7b states that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 2. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army 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. a. If a Soldier is found unfit because of physical disability medical evaluation boards (MEBs) and physical evaluation boards (PEBs) are 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 qualification for retention based on the criteria in AR 40-501, chapter 3. b. This regulation also states 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/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 that service member can be medically separated or retired. 3. 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." 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. 5. 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. 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 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 of time. 7. 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 former service members administratively discharged under other than honorable conditions (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. 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 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 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. 10. Title 38, USC, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice by the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability. The VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability. DISCUSSION: 1. The evidence of record confirms the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by the NJP he received for failing to report, disobeying a lawful order, making a false official statement, and intentionally injuring himself. Accordingly, his immediate commander initiated separation action against him. 2. His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. He was discharged on 10 January 2007 under the provisions of AR 635-200, paragraph 14-12c, for misconduct with an UOTHC characterization of service. 3. His record is void of evidence and he did not provide any evidence that shows he was diagnosed with any mental or medical condition while serving on active duty that rendered him unable to perform his military duties, were found to be unfitting, and would have required referral to an MEB/PEB. 4. While the VA may have granted the applicant service-connected disability for PTSD for his depression, anxiety, and personality disorder, this was not effective until October 2013, almost 7 years after his discharge. The fact the VA may have considered his service as honorable for the purpose of receiving VA medical care is noted; however, the VA does not have the responsibility or authority for determining the quality of a Soldier's active duty service. 5. The applicant served in Afghanistan less than 6 months before returning home on emergency leave; however, he did not provide any evidence nor did his record show a specific traumatic or combat event that would lead one to conclude his misconduct was solely attributable to PTSD. In addition, the evidence of record confirms during his active duty service and during a time of war, he failed to return to Afghanistan after being allowed to return home on emergency leave. As stated by the advisory official, there is no evidence that he met the criteria for PTSD at the time of his discharge and his diagnosis of acute adjustment disorder with anxiety did not mitigate the charges of failure to report, disobeying a lawful order, making a false statement, and intentionally injuring himself. 6. Based on his overall record, the applicant does not meet the criteria for a medical discharge or any characterization of his service other than the one he received. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017926 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017926 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2