BOARD DATE: 7 September 2017 DOCKET NUMBER: AR20160014846 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: 7 September 2017 DOCKET NUMBER: AR20160014846 BOARD DETERMINATION/RECOMMENDATION: 1. 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 to amend the decision of the ABCMR set forth in Docket Number AR20140017153, dated 10 March 2016. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to referral to a physical evaluation board and correction of his records to show he retired honorably by reason of medical disability under the provisions of Title 10, U.S. Code, chapter 61. _____________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: 7 September 2017 DOCKET NUMBER: AR20160014846 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 reconsideration of his previous request for correction of his records to show he retired honorably by reason of length of service and restoration of his rank and pay grade to sergeant first class (SFC)/E-7 with back pay and allowances. 2. As new issues, he requests consideration by a physical evaluation board (PEB) and correction of his records to show he retired honorably by reason of medical disability under the provisions of Title 10, U.S. Code, chapter 61. 3. The applicant states: a. According to the Army Board for Correction of Military Records (ABCMR) decision granted on 10 March 2016, he was entitled to undergo the complete medical evaluation board (MEB) process prior to his separation. The Board recommended resubmission of his original request if he were found unfit for duty by the MEB. b. On 23 August 2016, he received a telephone call from Dr. J____ R. H____ of the Fort Benning MEB section to reconstruct the 2013 MEB. The MEB reconstruction noted 18 medical conditions, 9 of which were medically unacceptable for retention. c. Dr. H____ noted he continues to experience chronic anxiety, depression, irritability, and anger and is not able to function independently. This condition impacts his memory and thinking. Dr. H____'s final analyses of his mental condition noted the Department of Veterans Affairs (VA) determined he was insane for VA purposes and benefits. The VA determined his condition of post-traumatic stress disorder (PTSD) is service connected. Dr. H____ agreed with the earlier finding of Dr. D____ E. S____ of Sweetwater Psychological Associates that his "judgment was impaired and played a major role in his conduct that led to his administrative discharge." d. The Army documented his PTSD long before he was processed for separation in two separate medical histories, the first on 28 June 2011 and the second on 24 October 2012. Not only did the Army recognize his PTSD in its own examinations, but the Army was additionally informed in detail by Dr. S____ on 13 June 2012. Dr. S____ had been treating him for PTSD as early as 12 December 2011. Dr. S____ communicated the severity of his PTSD to Dr. F____ G____ of the Fort Benning Psychiatric Clinic in a memorandum and noted his PTSD and traumatic brain injury (TBI) more likely than not played a "substantial part" in his conduct. Dr. S____'s recognition of his PTSD condition corroborated what the Army already documented in his medical histories. e. The Army failed to properly interpret and apply the pertinent Army regulations which were written to protect Soldiers with PTSD from discharge without the benefit of proper medical care. Furthermore, there have been significant changes in policy for veterans suffering from service-connected PTSD who were separated for misconduct and discharged under other than honorable conditions (UOTHC). (1) According to the Secretary of Defense Hagel memorandum, dated 3 September 2014, Soldiers who apply to Military Boards for Correction of Military Records for discharge upgrades should be given liberal consideration. His case met the criteria established by Secretary Hagel to protect Soldiers from being wrongly discharged because of service-connected PTSD. (2) According to Army Directive 2014-28, dated 3 November 2014, subject: Requests to Upgrade Discharge by Veterans Claiming PTSD, the Office of the Surgeon General (OTSG) will provide expert guidance to the Army Review Boards Agency. The competent medical professionals tasked by OTSG confirmed a finding of PTSD by the reconstructed MEB. Therefore, he requests liberal consideration in his case. (3) Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 1-33b(1)(a), states, "The Soldier's medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative elimination." f. The evidence is clear that his medical condition (i.e., PTSD) played a substantial part in his conduct and that a discharge upgrade is in order. Had his command fully understood his medical conditions with these policies in place, it is safe to conclude that a medical alternative would have been a more viable option, being that he had over 20 years of active Federal service. His command was not fully aware of his combat experiences at the time or did not fully consider the "whole man" concept by weighing his 23 total years of honorable service, as well as his present medical conditions directly caused by uncontroverted evidence of a combat-related psychological condition (i.e., PTSD). g. The Army did not consider or properly weigh the evidence of character and mitigation that was presented when making its decision. (1) A discharge UOTHC for a single offense after years of faithful service is not equitable. He recognized and paid for his mistake by pleading guilty and serving time in civilian confinement. When he was released from confinement, he returned to duty and served 2 additional years, giving him 23 total years of active Federal service. He has never received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice, a letter of reprimand, or any other Uniform Code of Military Justice action against him. (2) His mental health was normal before his two deployments. He served honorably for 21 years without any incident until his civilian conviction in 2010. His mental and medical histories were unremarkable and untroubled until his deployment to a combat environment which led to the onset of diagnosed PTSD. He was also a first responder to the 1995 Alfred P. Murrah Federal Building, Oklahoma City, OK, terrorist bombing attack where he saw the horrific aftermath that was likened to a war zone. (3) He was an honor graduate of the Retention and Transition Course. He graduated in the top 20 percent of his Advanced Noncommissioned Officer Course. He was awarded numerous individual and service medals and badges. (4) In spite of the single incident of misconduct for which he took full responsibility, his service before the incident and the 2-year period during his discharge processing were exemplary. His return to service after his conviction demonstrated his payment of a debt to society and his rehabilitation. If he had enlisted in the Army with a civilian conviction of any type and served honorably for 2 years, he would have received an honorable discharge. In consideration of this fact, his previous 21 years of honorable service compel the issuance of an honorable discharge and subsequent medical treatment. (5) The letter of support from former prisoner of war (POW) Specialist  M____ R____-C____ attributes her release to his actions in Iraq in 1991. (6) He has been a dutiful husband and father. He is now unable to manage his own financial affairs. His service-related medical condition has been recognized by the Social Security Administration, and the military doctors who treated him substantiate his need of assistance to function in civilian life. (7) His past peacetime and wartime service, as well as his otherwise unblemished record, should be given full consideration. 3. The applicant provides: * 7-page self-authored brief * DA Form 3749 (MEB Proceedings), dated 29 August 2016, with narrative summary * letter, Sweetwater Psychological Associates, dated 18 April 2016, with consultation summary, dated 28 June 2015 * support statement, former POW M____ R____-C____, dated 10 March 2016, with biography * DA Form 638-1 (Recommendation for Award of Army Achievement Medal, Army Commendation Medal, and Meritorious Service Medal), dated 12 August 1993, for Army Achievement Medal * Army Achievement Medal Certificate, dated 17 July 1995 * DA Form 638 (Recommendation for Award), dated 14 December 1995, for Humanitarian Service Medal * letter, Elite Family Practice, Primary Care, dated 8 June 2015, with curriculum vitae * letter, Sweetwater Psychological Associates, dated 13 June 2013 * support letter, SFC R____ S____, dated 5 August 2016 * memorandum, Secretary of Defense, dated 3 September 2014 * Army Directive 2014-28, dated 3 November 2014 CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records, which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20140017153 on 10 March 2016. 2. The applicant enlisted in the Regular Army on 21 February 1989. He completed initial entry training and was awarded military occupational specialty 88M (Motor Transport Operator). 3. The Defense Manpower Data Center Gulf War Roster shows he served in Southwest Asia in support of Operations Desert Shield/Desert Storm from 1 October 1990 to 15 May 1991. 4. He provided a DA Form 638-1, dated 12 August 1993, showing he was awarded the Army Achievement Medal for achievement (impact) for the period 15 October 1990 to 18 March 1993 while serving as the battalion commander's driver during Operation Desert Storm in 70th Ordnance Battalion Permanent Order Number 258-001, dated 15 September 1993. 5. He provided an Army Achievement Medal Certificate, dated 17 July 1995, showing he was awarded the Army Achievement Medal for meritorious service during the period 19 April 1995 to 3 May 1995 while assisting in the recovery efforts following the Oklahoma City Alfred P. Murrah Federal Building bombing. 6. He provided the front side of a DA Form 638, dated 14 December 1995, showing he was recommended for award of the Humanitarian Service Medal for achievement for the period 19 April 1995 to 3 May 1995 while serving as a casualty liaison team member during recovery efforts following the Oklahoma City Alfred P. Murrah Federal Building bombing. 7. On 6 July 2002, he was honorably discharged to attend school. His DD Form 214 shows he completed 12 years, 10 months, and 6 days of net active service during this period. 8. He enlisted in the U.S. Army Reserve (USAR) on 7 July 2002. 9. On 31 August 2002, he was ordered to active duty in an Active Guard Reserve status as a member of the USAR. 10. He was awarded primary military occupational specialty 79V (Retention and Transition Noncommissioned Officer (NCO)) effective 9 September 2002. 11. He was promoted to the rank/grade of SFC/E-7 in military occupational specialty 79V effective 1 October 2003. 12. His records contain a DA Form 4187 (Personnel Action), dated 23 October 2005, recommending approval of his request for reattachment in the Active Guard Reserve Program. The remarks block shows the date of his last physical examination as 23 May 2003 and his physical profile rating as "111111," indicating he possessed a high level of medical fitness in all functional abilities. 13. His records contain an Enlisted Record Brief, dated 27 January 2006, showing his current physical profile rating as "111111," indicating he possessed a high level of medical fitness in all functional abilities. 14. His records contain DD Form 2808 (Report of Medical Examination), dated 29 March 2007, showing his physical profile rating as "111111," indicating he possessed a high level of medical fitness in all functional abilities. a. Item 35 (Feet) shows the examining physician rated this area as "Abnormal." b. Item 40 (Psychiatric) shows the examining physician rated this area as "Normal." c. Item 44 (Notes (Describe Every Abnormality in Detail)) shows no entries. d. Item 77 (Summary of Defects and Diagnoses) shows the examining physician noted the applicant's intermittent right knee pain. No other entries are listed. 15. As noted in his previous ABCMR Record of Proceedings, an article from the Federal Bureau of Investigation (FBI) website, dated 24 March 2010, states the applicant and two other persons were sentenced on that date by a U.S. District Court Judge on charges of theft of U.S. Government property, stealing thousands of U.S. Government computers, and selling them for their own profit. a. The FBI Special Agent in Charge stated, "The FBI is dismayed at the actions of these soldiers who were driven by greed to steal and then sell Government equipment. The vast inventory of various equipment maintained by the military and other Government entities must be protected from such thefts in order for the Government to carry out its mission and the resources that we dedicate to investigate these thefts takes us away from our other many and varied investigative responsibilities that we have at the FBI." b. According to the U.S. Attorney, the charges, the evidence, and the documents presented in court, between 2003 and 2007, the applicant and two other Soldiers stationed at USAR centers in Tennessee discovered they could request surplus computers and other equipment through a Federal program that makes equipment available to other Federal agencies that have a need for the equipment. This program required that the surplus equipment remain U.S. Government property and the requesting agency was required to it for official Federal Government purposes. c. As part of the scheme, the Soldiers all filed false paperwork stating the computers and equipment they obtained would be used for Army purposes. In particular, the applicant filed phony letters on official Army letterhead and other documentation, stating the computers would go to Soldiers in Iraq supporting Operation Enduring Freedom. The applicant then sold the computers to various computer stores in Georgia and Tennessee. The other two Soldiers sold the stolen computers via private sales and through listings in newspapers, magazines, and on eBay. d. During the 6-year period, the applicant obtained computers and other equipment in this fashion from the Department of Health and Human Services, Centers for Disease Control, U.S. Air Force, National Aeronautics and Space Administration, Department of Transportation, VA, and U.S. Army. e. The case was prosecuted by an Assistant U.S. Attorney and investigated by agents of the: * FBI * Department of Health and Human Services Office of the Inspector General * U.S. Air Force Office of Special Investigations * U.S. Army Criminal Investigation Command and Military Intelligence Division * Defense Criminal Investigative Service * General Services Administration Office of the Inspector General * VA Office of the Inspector General * National Aeronautics and Space Administration Office of the Inspector General * Department of Transportation Office of the Inspector General * Treasury Inspector General for Tax Administration f. The applicant pled guilty to the charges on 7 January 2010. g. The U.S. District Court Judge sentenced the applicant to 1 year and 6 months in prison, followed by 3 years of supervised release, and ordered him to pay $163,330.00 in restitution. 16. The U.S. District Court, Northern District of Georgia, Atlanta Division, Judgment in Criminal Case, dated 31 March 2010, shows the applicant pled guilty to one count of theft of U.S. Government property. On 24 March 2010, the court sentenced him to imprisonment for a term of 18 months and ordered him to make restitution in the total amount of $163,300.00 to the following U.S. Government agencies in the amounts indicated: * Department of Health and Human Services – $81,665.00 * National Aeronautical and Space Administration – $3,266.00 * VA (VA Medical Center, Atlanta) – $24,500.00 * Department of Transportation (Federal Highway Administration) – $4,899.00 * U.S. Air Force (U.S Treasury) – $49,000.00 17. On 20 April 2010, Colonel (COL) J____ R. L____, Commander, Army Reserve Career Division, notified him of his intent to initiate separation action against him for conviction by a civil court under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-5. The commander cited the applicant's Federal conviction on 31 March 2010 for theft of U.S. Government property in violation of Title 18, U.S. Code, section 641, as the reason for the proposed action. a. His commander recommended his discharge UOTHC and informed him that the separation authority was Headquarters, Department of the Army (HQDA). The commander stated the separation authority could accept his recommendation or direct characterization of his service as honorable, under honorable conditions (general), or UOTHC. The separation authority could not direct the issuance of a type of discharge or characterization of service less favorable than that recommended by the board if the applicant requested a hearing before an administrative board. b. His commander advised him of his right to consult with military counsel or obtain civilian counsel at no expense to the U.S. Government, obtain copies of documents supporting the proposed separation, and representation by military counsel or civilian counsel at no expense to the U.S. Government. c. His commander advised him that he would have a hearing before an administrative board and could present written statements. He could not submit a conditional waiver of his right to a hearing before an administrative separation board because he completed 18 years or more of active Federal service. If he had 20 or more years of active service creditable service toward retirement, he could apply for retirement under the provisions of Army Regulation 635-200, paragraph 2-6b. Authority to submit the application did not assure that it would be approved. If the board recommended separation, his DA Form 2339 (Application for Voluntary Retirement) would be attached when the case was sent to HQDA. 18. U.S. Army Human Resources Command Orders 327-01, dated 21 April 2010, reduced him in grade/rank from SFC/E-7 to private (PVT)/E-1 effective 26 April 2010 with a date of rank of 31 August 1989 by authority of Army Regulation 600-8-19 (Enlisted Promotions and Reductions). 19. On 26 April 2010, he acknowledged receipt of notification of separation. 20. On 27 April 2010, he consulted with legal counsel who advised him of the basis for the contemplated separation action for conviction by a civil court under the provisions of Army Regulation 635-200, paragraph 14-5, and its effects; the rights available to him; and the effect of any action taken by him in waiving his rights. He acknowledged he understood separation under these provisions could result in characterization of his service as honorable, under honorable conditions (general), or UOTHC. a. He indicated he understood he was entitled to have his case heard by an administrative separation board because he had 6 or more years of Active and Reserve service on the date of initiation of the separation. Further, he understood he was entitled to have his case heard by an administrative separation board because his commander/counsel notified him that he was subject to characterization of his service as UOTHC. He requested consideration of his case before an administrative separation board, requested a personal appearance before the administrative separation board, and indicated he was making the request of his own free will and had not been subject to any coercion whatsoever by any person. b. He further indicated he understood he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued. He also understood the issuance of a discharge UOTHC could result in his ineligibility for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life as a result of such characterization. 21. His records contain a memorandum from Headquarters, USAR Command, dated 13 August 2010, subject: Notification of Administrative Separation Hearing for 17 September 2010, informing him that his hearing scheduled for 13 August 2010 was continued to allow him the opportunity to make a personal appearance. He was informed the board of officers would convene on 17 September 2010 and the hearing would determine whether he should be separated from the USAR for misconduct under the provisions of Army Regulation 635-200, paragraph 14-5, due to his Federal conviction for theft of U.S. Government property in violation of Title 18, U.S. Code, section 641. He was advised of his rights to be present at the hearing and assistance of a private attorney at no expense to the U.S. Government. He was also advised of his right to assistance of military counsel at no expense to himself. 22. His records contain a DA Form 4187 showing his duty status changed from present for duty to confinement effective 14 May 2010. 23. On 15 September 2010, his commander recommended his separation prior to the expiration of his term of service under the provisions of Army Regulation  635-200, paragraph 14-5, with characterization of his service as UOTHC. The commander stated the specific factual reason for the recommendation as the applicant's Federal conviction for the theft of U.S. Government property in violation of Title 18, U.S. Code, section 641. The commander indicated: a. A report of mental status evaluation or psychiatric report was not attached because Army Regulation 635-200 and Army Regulation 40-501 (Standards of Medical Fitness) do not require mental evaluations for civil conviction separation actions. b. A report of medical examination was not attached because Army Regulation 635-200 and Army Regulation 40-501 do not require medical examinations for civil conviction separation actions. However, Army Regulation  40-501 does require a Separation Health Assessment for Soldiers in civilian confinement. The initial prison physical examination done by a certified provider would meet the intent of a Separation Health Assessment. 24. His records contain a DA Form 4187 showing his duty status changed from confinement to present for duty effective 8 June 2011. 25. His records contain a memorandum from the HQDA Office of the Deputy Chief of Staff, G-1, dated 27 September 2011, subject: Involuntary Separation of (Applicant) under the Provisions of Army Regulation 635-200, Chapter (should read Paragraph) 14-5 (Conviction by Civil Court), returning his involuntary separation packet to U.S. Army Human Resources Command for correction of several deficiencies. Specifically, the separation board needed to correct some of the language in the findings, be more specific in the language, list the correct charges, and reflect an actual service characterization instead of the recommendation for the erroneous "General Discharge Under Other Than Honorable Conditions" characterization. Additionally, the applicant's service computation needed correction and the applicant, who had requested retirement, needed to specify a requested retirement date. 26. His records contain a decision memorandum from the USAR Command Staff Judge Advocate to the Commanding General, USAR Command, dated 2 June 2012, subject: Involuntary Separation of (Applicant), to correct the Commanding General's recommendation and provide a corrected separation packet to the Department of the Army Office of the Deputy Chief of Staff, G-1. The Staff Judge Advocate noted: a. On 31 March 2010, the applicant was convicted in the U.S. District Court, Northern District of Georgia, for theft of U.S. Government property in violation of Title 18, U.S. Code, section 641. The applicant served a sentence of 18 months and owed court-ordered restitution in the amount of $163,330.00 to multiple Federal agencies. As a result of this conviction, the Army Reserve Career Division Commander initiated administrative separation proceedings against the applicant on 20 April 2010 under the provisions of Army Regulation 635-200, paragraph 14-5. In response, the applicant requested a personal appearance before an administrative separation board. b. The Army Reserve Career Division Commander was not a separation authority and lacked the authority to convene a board. Therefore, the Commanding General, USAR Command, appointed the administrative board. c. The board hearing was conducted on 17 September 2010 and the applicant attended with his counsel. The board found the applicant received a Federal conviction for theft of U.S. Government property and forgery. The board recommended the applicant's discharge UOTHC. d. G-1 noted several deficiencies in the applicant's separation packet. (1) First, the board incorrectly found he was convicted for forgery. The command remedied this matter by contacting the board members and having them correct the findings to reflect the crime for which the applicant was actually convicted (theft of U.S. Government property). The board members unanimously agreed to the correction. (2) Second, the Commanding General signed a memorandum recommending the applicant receive a "General Discharge Under Other Than Honorable Conditions." (An attached memorandum corrected the recommended characterization to show "Under Other Than Honorable Conditions.") (3) Third, the applicant, who had over 20 years of creditable service, submitted a retirement request without requesting a retirement date. Accordingly, the applicant resubmitted a corrected retirement packet with the assistance of his unit and the G-1 provided verification of the applicant's active Federal service. e. Because the applicant has over 18 years of service, HQDA was required to approve the separation. f. The Staff Judge Advocate recommended signing the attached memorandum, which recommended the applicant's separation UOTHC, and returning the memorandum to HQDA G-1 for action. 27. His records contain a memorandum from the Commanding General, Headquarters, USAR Command, dated 4 June 2012, subject: Involuntary Separation Board Results for (Applicant), forwarding the Involuntary Separation Board results pertaining to the applicant to HQDA G-1 for action. He recommended the applicant's separation UOTHC and stated HQDA must take final action to approve the separation because the applicant had over 18 years of service. 28. In his previous application to the Board, he provided a DD Form 2807-1 (Report of Medical History), dated 24 October 2012, and a DD Form 2808 (Report of Medical Examination), dated 20 December 2012, for the purpose of retirement. The examining physician noted the applicant's physical profile, dated 20 December 2012, showed ratings of "2" under the physical capacity or stamina and psychiatric factors. The examining physician indicated the applicant was not medically qualified for service. 29. On 9 May 2013, the Assistant Secretary of the Army for Manpower and Reserve Affairs directed the applicant's involuntary separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-5 (Conviction by Civil Court) with characterization of his service as UOTHC. 30. His records contain a DA Form 31 (Request and Authority for Leave), dated 17 May 2013, showing he was authorized ordinary leave from 21 May 2013 to 18 July 2013. 31. His records contain a DA Form 3349 (Physical Profile), dated 7 and 10 June 2013, showing he was assigned permanent physical profile ratings under the following factors as indicated: * physical capacity or stamina – "2" * upper extremities – "3" * lower extremities – "3" * hearing and ears – "1" * eyes – "1" * psychiatric – "2" 32. His records contain a DA Form 3822 (Report of Mental Status Evaluation), dated 19 June 2013, for the purpose of administrative separation under the provisions of Army Regulation 635-200, paragraph 14-12. a. Section II (Fitness for Duty) states the applicant was deemed unfit for duty from a behavioral health standpoint due to a serious medical condition that was not likely to resolve within 1 year. b. Section III (Pertinent Findings on Mental Status Examination) shows he had no obvious impairments to cognition, his behavior was cooperative, his perceptions were normal, he was unlikely to be impulsive, and he was not considered dangerous. c. Section IV (Impressions) shows the examining clinical psychologist opined the applicant could understand and participate in administrative proceedings, he could appreciate the difference between right and wrong, and he was in the process of an MEB (initiated). d. Section V (Diagnoses) shows his diagnoses as: (1) Axis I (Psychiatric Conditions): PTSD and mild TBI based upon history; (2) Axis II (Personality and Intelligence Disorders): None; and (3) Axis III (Medical Conditions): sleep apnea, high blood pressure, lower back pain, acid reflux, shoulder pain, and ankle/foot pain. e. Section VIII (Additional Comments) shows the examining psychologist evaluated the applicant as part of the process of a chapter (administrative) separation. The evaluation consisted of a mental status examination, clinical interview, and review of records. There was a history of PTSD and mild TBI and the applicant was receiving Social Security Disability Insurance benefits for both conditions. She stated an MEB was initiated on 7 June 2013. The applicant was mentally responsible, able to distinguish right from wrong, and had the mental capacity to understand and participate in administrative board proceedings. She did not clear the applicant for final administrative action at that time, but stated administrative action could proceed in accordance with Army Regulation 635-200, paragraph 1-33. 33. In his previous application to the Board, counsel provided an automated printout titled "Psychiatric Evaluation," dated 9 July 2013, from an unidentified treatment facility signed by Dr. M____ T. J____. The evaluation states the applicant received treatment for PTSD. The applicant had a history of trauma from Iraq during the Gulf War (1990-1991) and Kosovo (1999), increased stress, anxiety, and panic attacks. The applicant had problems sleeping and sleeps alone due to "fits" in his sleep. The applicant was a "part-time" Army employee as he was unable to work full time. He reported weekly anxiety attacks. Additionally, he had legal problems, relationship problems, and employment problems. He had depressive symptoms with depressed mood, sleep problems, poor energy, and problems with isolation. He had manic symptoms, including racing thoughts and mood swings. He had anxiety symptoms, including shortness of breath, nausea, feelings of choking, and dizziness. He had symptoms of attention deficit disorder with hyperactivity, which included losing things, forgetting things, impulsivity, problems finishing tasks, impatience, inattentiveness, and distractibility. He had PTSD symptoms, which included nightmares, flashbacks, startle, avoidance, intrusive thoughts. His medical history included sleep apnea, back pain, and hypertension. His legal history included burglary/theft – he stole computers in 2010 and received 1 year of jail time and probation. Dr. J____ stated the applicant had poor insight and judgment. His diagnoses were recorded as chronic PTSD, major depression, and panic disorder with agoraphobia. He was assigned a Global Assessment of Functioning score of 51. 34. In his previous application to the Board, counsel provided a DA Form 3349, dated 15 and 16 July 2013, showing the applicant did not meet retention standards in accordance with Army Regulation 40-501 and required an MEB. He was assigned permanent physical profile ratings under the following factors as indicated: * physical capacity or stamina – "2" * upper extremities – "3" * lower extremities – "3" * hearing and ears – "1" * eyes – "1" * psychiatric – "3" 35. He provided a letter from Dr. D____ E. S____, licensed psychologist, Sweetwater Psychological Associates, to the Fort Benning Psychiatric Clinic, dated 13 June 2013, wherein he stated he began treating the applicant for PTSD on 12 December 2011. He opined the applicant's PTSD and TBI more likely than not played a substantial part in the conduct that led to his administrative separation from the U.S. Army. He believed the applicant's judgment was impaired as a result of his service-connected psychological and physical trauma and recommended consideration by an MEB in lieu of administrative separation. 36. U.S. Army Human Resources Command Orders D-08-390096, dated 7 August 2013, discharged him in the rank/grade of private/E-1 under the authority of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) effective 27 August 2013. 37. His DD Form 214 shows he was discharged UOTHC under the provisions of Army Regulation 635-200, chapter 14, effective 27 August 2013. He completed 9 years, 11 months, and 2 days of net active service during this period with lost time from 14 May 2010 through 8 June 2011 (391 days) due to civil confinement. 38. In his previous application to the Board, he provided a Standard Form 600 (Chronological Record of Medical Care), dated 28 August 2013, showing he was seen for out-processing to close out his medical records. The examining physician noted the applicant's records contain a diagnosis of PTSD and TBI. He further noted Soldiers must receive a full course of treatment prior to termination of their service in accordance with directions from the Office of the Surgeon General. The examining physician provided this information to the applicant and his escort. 39. In his previous application to the Board, counsel provided email correspondence between Major (MAJ) J____ T. S____, an attorney assigned to the U.S. Army Integrated Disability Evaluation System (IDES) Office of Soldiers' Counsel Program, and Mr. J____ D. E____ in the Department of the Army Office of the Deputy Chief of Staff, G-1. a. In an email message, dated 29 August 2013, MAJ S____ stated a colleague recently contacted him in reference to a Soldier pending separation orders at Fort Benning, GA, effective 27 August 2013 under the provisions of Army Regulation 635-200, paragraph 14-5. The Soldier's out-processing slowed due to questions about dual processing. Medical authorities issued the Soldier an approved physical profile rating of "3" under the psychiatric (S) factor, recommending MEB referral in July 2013. MAJ S____ and his colleague believed the Soldier needed to go through MEB processing before he separated. The response had been that because the Soldier had not started the MEB process, the dual processing requirement did not apply. MAJ S____ referred to All Army Activities Message 159/2012, dated 13 June 2012, subject: Enlisted Administrative Separation Processing – Final Medical Disposition, which appeared to indicate the MEB referral decision triggered dual processing, not the start of the MEB process. He further stated he understood Army Regulation  635-200 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) made the same requirement. b. On 29 August 2013, Mr. E____ replied and stated MAJ S____ was correct: "The Soldier must go through the MEB process. If the MEB refers a Soldier to the PEB, the GCMCA [general court-martial convening authority] must be notified. At that point, the decision will be made as to whether or not the Soldier's medical condition contributed to the misconduct. If the GCMCA decides that it did not, he/she may proceed with the separation." 40. In his previous application to the Board, counsel provided several letters in support of upgrading the applicant's discharge, describing his work performance and attesting to his character. 41. On 28 July 2014, the Army Discharge Review Board determined the applicant's discharge was both proper and equitable and denied his request for an upgrade. 42. In his previous application to the Board, counsel provided a Georgia Department of Veterans Service Rating Decision, dated 3 April 2015. The rating decision contains only two pages and is missing several key components usually found in VA rating decisions. This document states: a. Decision: "The Veteran was insane at the time in question." b. Evidence: No entries. c. Reason for Decision: "Insanity. An insane person is one who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more or less prolonged deviation from their normal method of behavior; or who interferes with the peace of society; or who has so departed (become antisocial) from the accepted standards of the community to which by birth and education they belong as to lack the adaptability to make further adjustment to the social customs of the community in which they reside. In this case, the veteran was insane at the time in question." 43. Counsel provided a letter from Dr. V____ R. B____, Elite Family Practice, Primary Care, dated 8 June 2015, wherein she stated the applicant was under her care and had been diagnosed/treated for sleep apnea, hypertension, memory loss, PTSD, plantar fibromatosis, lumbago, knee pain, ankle pain, and shoulder pain. 44. Counsel provided a statement of support from former POW M____ R____-C____, dated 10 March 2016, wherein she stated she served with the applicant as motor vehicle operators in Saudi Arabia in support of Operations Desert Shield/Desert Storm. a. On 30 January 1991, she and another Soldier in one vehicle, and the applicant and another Soldier in a second vehicle, took a wrong turn and ended up in the middle of fighting. She and the other Soldier in her vehicle were captured, while the applicant and another Soldier in the second vehicle avoided capture. The applicant and another Soldier signaled for help from the 1st Marine Division deployed just 2 miles south of the city. If it were not for the applicant's immediate intelligence to the Marines in the nearby town, her captivity could have been extended for months or years. b. She and the other POW were honorably discharged, while the applicant and the other Soldier continued their military careers. c. The applicant went on to experience two more horrific events: the bombing of the Alfred P. Murrah Federal Building in 1995 and another deployment to Kosovo in 1999. He was living with undiagnosed PTSD all that time. 45. He provided a letter from Dr. D____ C. M____, licensed psychologist, Sweetwater Psychological Associates, dated 18 April 2016, wherein he stated he previously conducted a psychological evaluation of the applicant and found him to still be suffering from PTSD and major depression. He stated his findings concurred with Dr. S____'s conclusion that the applicant's judgment was impaired and played a major role in the conduct that led to his administrative separation from the U.S. Army. a. Dr. M____ included a consultation summary, dated 28 June 2015, wherein he stated the applicant sought a psychological assessment for PTSD after his evaluation by Dr. A____ E____, clinical psychologist, VA, concluded his diagnoses of PTSD was suspect due to his lack of cooperation with the examination. (1) The applicant reported two events he believed were traumatic experiences, causing him repeated episodes of grief and distress in his life: (a) On 30 January 1991, he was driving in a convoy when they took a wrong turn and ended up in the middle of fighting. He and his passenger backtracked 2 miles to request Marine rescue assistance. When he returned, the two Soldiers in the lead vehicle had been captured. He remembers being frightened for his life and feeling guilty about the Soldiers who were captured. (b) In April 1995, his battalion headquarters was located in the Alfred P. Murrah Federal Building, Oklahoma City, OK, when the building was destroyed by a domestic terrorist. He was located 10 miles away at the time of the explosion and he was immediately called to the scene to participate in recovery and relief efforts. The sights of death and injury were horrifying and he still cannot get them out of his mind. (2) The assessment is supportive of the diagnoses of PTSD and major depression. Both conditions appear to have been present to some degree since the applicant's participation in the Iraq war and to have significantly impaired his quality of life at home and on the job. His level of distress, negative mood, reactivity, hyperarousal, avoidance of others, and isolation are all more likely than not a direct consequence of the traumatic experiences cited. It is believed that his self-defeating decision to sell computer items the Army had discarded more likely than not was, in part, a consequence of his impaired decision-making process on the job. (3) His diagnoses included severe, chronic PTSD and single-episode major depression. b. Dr. M____ included a VA Form 21-0960P-3 (VA Review PTSD Disability Benefits Questionnaire), dated 24 July 2015, showing his diagnoses as PTSD and single-episode major depression. The relevant legal and behavioral history notes he was jailed for 1 year while he was serving in the Army for selling for profit materials the Army had disposed of. 46. He provided a letter of support from SFC R____ S____, dated 5 August 2016, wherein he stated the applicant worked for him as a Retention and Transition NCO beginning 3 August 2008. a. After the applicant's incarceration, he reported for work faithfully from August 2011 to August 2013 without incident. The applicant had the complete trust of the command and was told he would retire after 23 years of active Federal service. The applicant worked through severe PTSD and a TBI; he cut grass and cleaned U.S. Government vehicles in the hot sun. Although the applicant had many physical issues, he was determined to prove his worth to the Army, even though he was being processed for separation under the provisions of Army Regulation 635-200, chapter 14. b. He recommended processing the applicant for medical retirement and he witnessed the policy error and injustice the Army intentionally made regarding the applicant's medical issues. The applicant was discharged from the Army with three physical profile ratings of "3." c. The applicant's character is beyond approach. The applicant more than paid his debt to society. The applicant deployed to combat twice and has the combat injuries to prove it. He recommended upgrading the applicant's character of service from UOTHC to honorable. He would ultimately like to see the applicant medically retired from the Army with full benefits. 47. On 28 July 2014 after carefully examining the applicant's record of service during the period of enlistment under review and hearing his testimony, the Army Discharge Review Board determined his discharge was both proper and equitable and voted to deny relief. 48. The VA Rating Decision he provided, dated 4 March 2015, states his records reflect that he was a veteran of peacetime and the Gulf War era. He served in the Army from 31 August 1989 to 6 July 2002 and from 31 August 2002 to 27 August 2013. Based on a review of the following evidence, the VA decided he was insane at the time in question. The evidence shown consists entirely of the legal definition for insanity found in Title 38, Code of Federal Regulations, section 3.354 (Determinations of Insanity). The rating decision does not identify the applicant's medical or behavioral health conditions, disability ratings, or the "time in question." 49. On 8 February 2016 after reviewing the applicant's service and medical records, the Army Review Boards Agency Clinical Psychologist rendered an advisory opinion wherein she stated the applicant alleged that his PTSD was the catalyst for the misconduct that led to his military discharge. She noted the applicant received a behavioral health clearance evaluation for administrative discharge on 19 June 2013. He was deemed mentally responsible and able to distinguish right from wrong. However, he was found unfit for duty due to PTSD and a TBI, not likely to resolve within 1 year. In accordance with Army Directive 2014-28, the available documentation reasonably supported that PTSD existed at the time of the applicant's military service. Nonetheless, taking into consideration the liberal PTSD guidance, the applicant's PTSD was unlikely a mitigating factor in his theft of U.S. Government property, as such symptoms are unlikely to contribute to theft. As noted in the Secretary of Defense memorandum, dated 3 September 2014, PTSD is not a likely cause of premeditated misconduct. Even if PTSD were assumed to have existed at the time, this should be carefully weighed against the severity of the misconduct, with more egregious behavior not necessarily mitigated by the presence of PTSD. 50. On 10 March 2016, the ABCMR determined the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommended referral of the applicant's case to OTSG to facilitate an interview, a possible assessment of the applicant, and evaluation of his complete record. Should OTSG determine the applicant should have been considered by an MEB, OTSG was directed to reconstruct the putative findings of a 2013 MEB. Once the reconstructed MEB was complete and if the applicant was found unfit for duty, upon application, the ABCMR would make a final determination as to whether the applicant's medical conditions caused his misconduct, and further, as a result of that determination, whether his current discharge should be modified or stand. 51. The MEB Proceedings, dated 29 August 2016, show: a. The MEB found the following conditions medically unacceptable in accordance with Army Regulation 40-501, chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement): * right knee patellofemoral (patella (knee) and femur) degenerative arthritis, chondromalacia (inflammation of the underside of the patella and softening of the cartilage) * left knee patellofemoral degenerative arthritis * lumbago, lumbar degenerative disc disease, 4th-5th lumbar vertebra (L4-5) and 5th lumbosacral joint (L5-S1) with herniation * right-sided lumbar radiculopathy (compressed nerve) * left-sided lumbar radiculopathy * right ankle degenerative arthritis * left ankle degenerative arthritis * right shoulder acromioclavicular joint (cap of the shoulder and clavicle (collar bone)) arthritis * PTSD b. The MEB found the following conditions medically acceptable in accordance with Army Regulation 40-501, chapter 3: * left shoulder strain * mild, intermittent asthma * TBI * post-TBI headaches * obstructive sleep apnea * allergic rhinitis * hypertension * gastroesophageal reflux disease c. The narrative summary shows the medically unacceptable condition of PTSD was based on the VA diagnosis of PTSD with a rating of 30 percent from 2013. d. The MEB recommended the applicant's referral to a PEB. REFERENCES: 1. All Army Activities Message 159/2012, dated 13 June 2012, subject: Enlisted Administrative Separation Processing – Final Medical Disposition, clarified enlisted administrative separation processing for Soldiers identified as not meeting medical retention standards. Except for separation in lieu of court-martial, final disposition through the Disability Evaluation System (DES) takes precedence over administrative separation processing, regardless of when the medical determination is made (either before, during, or after initiation of an administrative separation). The medical treatment facility (MTF) commander or attending medical officer will refer Soldiers to a MEB who do not meet medical fitness standards for retention. A finding that a Soldier does not meet medical fitness standards for retention includes when the second signature is applied to the DA Form 3349, establishing a permanent "3" or "4" rating in any physical profile factor for a duty-related condition. a. When either the MTF commander or attending medical officer determines a Soldier does not meet retention standards, the separation authority will not take final action until after a final medical retention determination is made. b. When the MEB determines referral to a PEB is warranted, Soldiers will be referred to the PEB unless the Soldier is processing for administrative separation for fraudulent entry or misconduct. When Soldiers are undergoing administrative separation for fraudulent entry or misconduct, the GCMCA must direct, in writing, whether to proceed with the DES process or administrative separation. The GCMCA's written directive must address whether the Soldier's medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative separation, and/or whether other circumstances of the individual case warrant disability processing instead of further processing for administrative separation. 2. Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). a. Chapter 7 (Physical Profiling) prescribes a system for classifying individuals according to functional abilities. The functions have been considered under six factors: physical capacity or stamina (P), upper extremities (U), lower extremities (L), hearing and ears (H), eyes (E), and psychiatric (S). Four numerical designations are used to reflect different levels of functional capacity. The basic purpose of the physical profile serial is to provide an index to overall functional capacity. Therefore, the functional capacity of a particular organ or system of the body, rather than the defect per se, will be evaluated in determining the numerical designation "1," "2," "3," or "4." b. If the physical profile rating is permanent, the profiling officer must assess whether the Soldier meets the medical retention standards of chapter 3. Those Soldiers serving on active duty who do not meet the medical retention standards must be referred to an MEB. c. The psychiatric (S) factor concerns personality, emotional stability, and psychiatric diseases. Table 7-1 (Physical Profile Functional Capacity Guide) states the psychiatric factor addresses the type, severity, and duration of the psychiatric symptoms or disorder existing at the time the profile is determined; the amount of external precipitating stress; and the predisposition as determined by the basic personality makeup, intelligence, performance, and history of past psychiatric disorder impairment of functional capacity. (1) A physical profile rating of "1" indicates: "No psychiatric pathology. May have history of a transient personality disorder." (2) A physical profile rating of "2" indicates: "May have a history of recovery from an acute psychotic reaction due to external or toxic causes unrelated to alcohol or drug addiction." (3) A physical profile rating of "3" indicates: "Satisfactory remission from an acute psychotic or neurotic episode that permits utilization under specific conditions (assignment when outpatient psychiatric treatment is available or certain duties can be avoided)." (4) A physical profile rating of "4" indicates: "Does not meet S3 above." 3. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. Paragraph 4-3 provides that when Soldiers are under investigation or are charged with an offense under the Uniform Code of Military Justice (UCMJ) that could result in a punitive discharge (dismissal, dishonorable discharge, or bad conduct discharge), they remain eligible to be referred to and complete the MEB phase of the DES. Eligibility for the PEB occurs when one of the actions listed below occurs. (The PEB or U.S. Army Physical Disability Agency (USAPDA), as applicable, will suspend adjudication or disposition when UCMJ action is initiated during the PEB or USAPDA review phases. These cases remain suspended until final UCMJ action is taken or one of the following events occurs.) a. When Soldiers are under investigation for, or charged with, a civil criminal offense (misdemeanor or felony) and they are incarcerated in civilian confinement, pre- or post-trial, or are being held pending psychiatric evaluation or treatment, they are ineligible to continue any phase of the DES. If they are present for duty (on bail), they are eligible to complete the MEB. The Soldier, to include if on bail, becomes eligible for the PEB or disability disposition when the Soldier is cleared of the offense and has a military status, or the command, after conviction, specifically declines in writing to separate the Soldier on the basis of conviction by civil court. b. Soldiers may not be referred for, or continue in, disability processing if under military sentence of dismissal or punitive discharge unless the sentence is suspended. A copy of the military orders suspending the sentence must be included with the MEB packet forwarded to the PEB. If, after forwarding the case to the PEB, the command takes action to vacate the suspension, the PEB Liaison Officer must notify the PEB. Disability processing may resume if the commander decides not to vacate the suspension. The Soldier may not be discharged through the DES process until the period of suspension has ended and the punitive discharge or dismissal has been disapproved. c. Enlisted Soldiers who are approved for discharge in lieu of trial by court-martial are ineligible for referral to the MEB and PEB phases of the DES. If Soldiers are in the DES process, their DES case will be terminated and the Soldiers are discharged in lieu of trial by court-martial. d. Soldiers under processing for an administrative separation for misconduct remain eligible to be referred to the MEB. The Soldier's commander must notify the Soldier's PEB Liaison Officer in writing that administrative separation action has been initiated. The Soldier's completed MEB must be referred to the Soldier's GCMCA in accordance with Army Regulation 635-200 to determine whether the Soldier will be referred to the PEB. Approval and suspension of a separation action under the provisions of Army Regulation 635-200 is not authorized when the Soldier is pending action under both Army Regulation  635-200 and Army Regulation 635-40. The GCMCA must decide which action to pursue. Soldiers continue to be eligible for these administrative separation actions up until the day of their separation or retirement for disability, even though their PEB findings have been previously completed and approved by USAPDA for the Secretary of the Army. In no case will a Soldier being processed for an administrative separation for misconduct be discharged through the DES process without the approval of the GCMCA. 4. Army Regulation 635-200 sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. a. Paragraph 1-33a provides that except in separation actions under chapter 10 and as provided in paragraph 1-33b, disposition through medical channels takes precedence over administrative separation processing. b. Paragraph 1-33b provides that when the MTF commander or attending medical officer determines that a Soldier being processed for administrative separation under chapters 7 or 14 does not meet the medical fitness standards for retention, he/she will refer the Soldier to an MEB in accordance with Army Regulation 40-400 (Patient Administration). The administrative separation proceedings will continue, but final action by the separation authority will not be taken, pending the results of MEB. (1) Paragraph 1-33b(1) provides that if the MEB findings indicate referral of the case to a PEB is warranted for disability processing under the provisions of Army Regulation 635-40, the MTF commander will furnish copies of the approved MEB proceedings to the Soldier's GCMCA and unit commander. The GCMCA may direct, in writing, that the Soldier be processed through the physical disability system when action under the UCMJ has not been initiated, and one of the following has been determined: (a) the Soldier's medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative elimination or (b) other circumstances of the individual case warrant disability processing instead of further processing for administrative separation. (2) Paragraph 1-33b(2) provides that the authority of the GCMCA to determine whether a case is to be processed through medical disability channels or under administrative separation provisions will not be delegated. (3) Paragraph 1-33b(3) provides that the GCMCA's signed decision to process a Soldier through the physical disability system will be transmitted to the MTF commander as authority for referral of the case to a PEB. (a) Copies of the GCMCA's decision will be furnished to the unit commander and included in the administrative separation proceedings. (b) The unit commander will suspend processing of the administrative separation action pending the PEB. (b1) If the Soldier is found physically fit, the administrative separation action will be resumed. (b2) If the Soldier is found physically unfit, the administrative separation action will be abated. c. Paragraph 1-33c provides that disability processing is inappropriate if the conditions in b(1)(a) and (b) do not apply, if UCMJ action has been initiated, or if the Soldier has been medically diagnosed as drug dependent. Accordingly, disability processing is inappropriate in separation actions under chapter 10. d. Paragraph 2-6b provides that a Soldier who has completed 20 or more years of active service creditable toward retirement and for whom separation is recommended to HQDA will be given the opportunity of applying for retirement. The Soldier will be told that authority to submit the application does not assure that it will be approved. A DA Form 2339 will be attached when the case is sent to HQDA or a statement will be included that the Soldier was given the opportunity but declined to apply for retirement. e. Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave. (1) Paragraph 14-4 provides that the separation authority is authorized to order discharge or direct retention in military service when disposition of a Soldier has been made by a domestic court of the United States or its territorial possessions. Upon determination that a Soldier is to be separated with a discharge UOTHC, the separation authority will direct reduction to the lowest enlisted grade. (2) Paragraph 14-5 provides that a Soldier may be considered for discharge when initially convicted by civil authorities or when action is taken that is tantamount to a finding of guilty if one of the following conditions is present. (a) a punitive discharge authorized for the same or a closely related offense under the Manual for Courts-Martial, as amended, or (b) the sentence by civil authorities includes confinement for 6 months or more, without regard to suspension or probation. (3) Paragraph 14-5 further provides that if the immediate commander initiates separation action, the case will be processed through the chain of command to the separation authority for appropriate action. A Soldier convicted by a civil court or adjudged a juvenile offender by a civil court will be reduced or considered for reduction. (4) Paragraph 14-12 provides that Soldiers are subject to separation for commission of a serious military or civil offense if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. 5. All Army Activities Message 159/2012, dated 13 June 2012, clarified enlisted administrative separation processing for Soldiers identified as not meeting medical retention standards. Paragraph 4a provided that except for separation in lieu of court-martial, final disposition through the DES takes precedence over administrative separation processing, regardless of when the medical determination is made (either before, during, or after initiation of an administrative separation). a. The MTF commander or attending medical officer will refer Soldiers to an MEB who do not meet medical fitness standards for retention. A finding that a Soldier does not meet medical fitness standards for retention includes when the second signature is applied to the DA Form 3349, establishing a permanent "3" or "4" rating in any physical profile factor for a duty-related condition. b. When either the military treatment facility commander or attending medical officer determined a Soldier does not meet retention standards, the separation authority will not take final action on the administrative separation board until a final medical retention determination is made. c. When the MEB determines referral to a PEB is warranted, Soldiers will be referred to a PEB unless the Soldier is processing for administrative separation for fraudulent entry or misconduct. When Soldiers are undergoing administrative separation for fraudulent entry or misconduct, the GCMCA must direct, in writing, whether to proceed with the PDES process or administrative separation. The GCMCA's written directive must address whether the Soldier's medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative separation and/or whether other circumstances of the individual case warrant disability processing instead of further processing for administrative separation. 6. Secretary of Defense memorandum, dated 3 September 2014, 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 applicants' service. 7. Army Directive 2014-28, dated 3 November 2014, implemented supplemental guidance to the Army Review Boards Agency regarding requests to upgrade discharges by veterans claiming PTSD. This guidance directed that OTSG would provide expert guidance on clinical manifestations of PTSD and behavioral indicators to help assess the presence of PTSD and its potentially mitigating effects. When requested, OTSG would provide consultation to supplement efforts in complex cases that exceed the Army Review Boards Agency's capabilities. 8. 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. 9. 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." 10. 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. 11. 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. 12. On 3 September 2014 in view of the foregoing information, the Secretary of Defense directed the DRBs and 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. 13. 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? 14. 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. 15. Title 38, Code of Federal Regulations, section 3.354 (Determinations of Insanity), provides that an insane person is one who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more or less prolonged deviation from his normal method of behavior; or who interferes with the peace of society; or who has so departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he resides. When a rating agency is concerned with determining whether a veteran was insane at the time he committed an offense leading to his court-martial, discharge, or resignation, it will base its decision on all the evidence procurable relating to the period involved and apply this definition of insanity. 16. Title 38, U.S. Code, chapter 3, provides that the Secretary of Veterans Affairs has authority to prescribe all rules and regulations which are necessary or appropriate to carry out the laws administered by the VA and are consistent with those laws, including regulations with respect to the nature and extent of proof and evidence and the method of taking and furnishing them in order to establish the right to benefits under such laws; the forms of application by claimants under such laws; the methods of making investigations and medical examinations; and the manner and form of adjudications and awards. 17. Title 18, U.S. Code, section 641, provides that whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted shall be fined under this title or imprisoned not more than 10 years, or both; but if the value of such property in the aggregate, combining amounts from all the counts for which the defendant is convicted in a single case, does not exceed the sum of $1,000.00, he shall be fined under this title or imprisoned not more than 1 year, or both. DISCUSSION: 1. The applicant contends his PTSD is the direct or substantial contributing cause of the conduct that led to his recommendation for administrative elimination under the provisions of Army Regulation 635-200, paragraph  1-33b(1)(a). He further contends his mental health was normal before his two deployments. He states he served honorably for 21 years without any incident until his civilian conviction in 2010. He argues that a discharge UOTHC for a single offense after years of faithful service is not equitable and that he recognized and paid for his mistake by pleading guilty and serving time in civilian confinement. 2. The applicant's exposure to traumatic events is not in question. The evidence of record shows he served in Southwest Asia as the battalion commander's driver during Operations Desert Shield/Desert Storm from 1 October 1990 to 15 May 1991. The evidence of record also shows he was awarded the Army Achievement Medal for meritorious service during the period 19 April 1995 to 3 May 1995 while assisting in the recovery efforts following the Oklahoma City Alfred P. Murrah Federal Building bombing. 3. The evidence of record shows his physical profile ratings as "111111" at the time of his physical examinations on 23 May 2003 and 29 March 2007, indicating he possessed a high level of medical fitness in all functional abilities. No psychiatric defects were noted during either examination. 4. On 7 January 2010 while serving in the rank/pay grade of SFC/E-7, he was convicted of theft of U.S. Government property valued at approximately $163,300.00 over a period of 6 years in collusion with two other Soldiers. In particular, he filed phony letters on official Army letterhead and other documentation, stating the computers would go to Soldiers in Iraq supporting Operation Enduring Freedom. He then sold the computers to various computer stores in Georgia and Tennessee. 5. On 24 March 2010, the U.S. District Court Judge sentenced him to 1 year and 6 months in prison, followed by 3 years of supervised release, and ordered him to pay $163,330.00 in restitution. 6. On 15 September 2010, his commander recommended his separation under the provisions of Army Regulation 635-200, paragraph 14-5, based on his Federal conviction for theft of U.S. Government property. His commander indicated a Report of Mental Status Evaluation or Psychiatric Report and a Report of Medical Examination were not attached to the recommendation because Army Regulation 635-200 and Army Regulation 40-501 did not require mental evaluations or medical examinations for civil conviction separation actions. Army Regulation 40-501 did, however, require a Separation Health Assessment for Soldiers in civil confinement. The initial prison physical examination done by a certified provider would meet the intent of a Separation Health Assessment. 7. Because he had over 18 years of creditable service, his separation required approval by HQDA. In accordance with regulatory guidance, he submitted a request for retirement in connection with the involuntary separation action. 8. His available military records indicate he sought evaluation of and treatment for numerous medical conditions following his release from civil confinement on 8 June 2011, pending separation from the military. His Report of Medical Examination, dated 20 December 2012, for the purpose of retirement noted his physical profile showed ratings of "2" under the physical capacity or stamina (P) and psychiatric (S) factors. The examining physician indicated he was not medically qualified for service. 9. On 9 May 2013, the Assistant Secretary of the Army for Manpower and Reserve Affairs directed the applicant's involuntary separation under the provisions of Army Regulation 635-200, paragraph 14-5 (Conviction by Civil Court) with characterization of his service as UOTHC based on the recommendation by the involuntary separation board. 10. He provided a Georgia Department of Veterans Service Rating Decision, dated 3 April 2015, stating he "was insane at the time in question." Insanity is a legal (non-medical) term for mental illness of such a severe nature that a person cannot distinguish fantasy from reality, cannot conduct her/his affairs due to psychosis, or is subject to uncontrollable impulsive behavior. There is no evidence whatsoever to support this decision. 11. On 10 March 2016, the ABCMR determined the applicant was denied completion of the MEB process prior to his separation for misconduct. The ABCMR recommended referral of his records to an MEB prior to making a final determination as to whether he was properly discharged. 12. The applicant has since completed the MEB process and is requesting reconsideration of his previous request for correction of his records to show he retired honorably by reason of length of service (22+ years) or consideration by a PEB and correction of his records to show he retired honorably by reason of medical disability under the provisions of Title 10, U.S. Code, chapter 61. 13. On 23 August 2016, the MEB found the following conditions medically unacceptable in accordance with Army Regulation 40-501, chapter 3: * right knee patellofemoral (patella (knee) and femur) degenerative arthritis, chondromalacia (inflammation of the underside of the patella and softening of the cartilage) * left knee patellofemoral degenerative arthritis * lumbago, lumbar degenerative disc disease, 4th-5th lumbar vertebra (L4-5) and 5th lumbosacral joint (L5-S1) with herniation * right-sided lumbar radiculopathy (compressed nerve) * left-sided lumbar radiculopathy * right ankle degenerative arthritis * left ankle degenerative arthritis * right shoulder acromioclavicular joint (cap of the shoulder and clavicle (collar bone)) arthritis * PTSD 14. The MEB narrative summary states the medically unacceptable condition of PTSD was based on the VA diagnosis of PTSD with a rating of 30 percent from 2013. The MEB recommended the applicant's referral to a PEB. 15. The Army Review Boards Agency Clinical Psychologist did not find in favor of the applicant. After reviewing the applicant's service and medical records, the Army Review Boards Agency Clinical Psychologist rendered an advisory opinion wherein she stated the applicant alleged that his PTSD was the catalyst for the misconduct that led to his military discharge. She noted the applicant received a behavioral health clearance evaluation for administrative discharge on 19 June 2013. He was deemed mentally responsible and able to distinguish right from wrong. However, he was found unfit for duty due to PTSD and a TBI, not likely to resolve within 1 year. In accordance with Army Directive 2014-28, the available documentation reasonably supported that PTSD existed at the time of the applicant's military service. Nonetheless, taking into consideration the liberal PTSD guidance, the applicant's PTSD was unlikely a mitigating factor in his theft of U.S. Government property, as such symptoms are unlikely to contribute to theft. As noted in the Secretary of Defense memorandum, dated 3 September 2014, PTSD is not a likely cause of premeditated misconduct. Even if PTSD were assumed to have existed at the time, this should be carefully weighed against the severity of the misconduct, with more egregious behavior not necessarily mitigated by the presence of PTSD. 16. His conviction of theft of U.S. Government property valued at approximately $163,300.00 over a period of 6 years (requisitioning computers and other equipment under false pretenses in collusion with two other Soldiers and selling them to commercial outlets) – clearly demonstrating premeditation – cannot reasonably be mitigated by diagnoses of PTSD or TBI. 17. He argues that a discharge UOTHC for a single offense after years of faithful service is not equitable and that he recognized and paid for his mistake by pleading guilty and serving time in civilian confinement. Contrary to his contention that he served honorably for 21 years without any incident until his civilian conviction in 2010, the evidence of record shows he completed 14 years of honorable service prior to engaging in theft of U.S. Government property by stealing thousands of U.S. Government computers and selling them for personal profit from 2003 to 2009. 18. The applicant was in civil confinement and had not entered into the MEB process at the time his commander recommended his involuntary separation based on his Federal conviction for theft of U.S. Government property. 19. Army Regulation 635-40 provides that Soldiers under processing for an administrative separation for misconduct remain eligible for referral to an MEB. The Soldier's commander must notify the Soldier's PEB Liaison Officer in writing that administrative separation action has been initiated. The Soldier's completed MEB must be referred to the Soldier's GCMCA in accordance with Army Regulation 635-200 to determine whether the Soldier will be referred to a PEB. Approval and suspension of a separation action under the provisions of Army Regulation 635-200 is not authorized when the Soldier is pending action under both Army Regulation 635-200 and Army Regulation 635-40. The GCMCA must decide which action to pursue. Soldiers continue to be eligible for these administrative separation actions up until the day of their separation or retirement for disability, even though their PEB findings have been previously completed and approved by USAPDA for the Secretary of the Army. In no case will a Soldier being processed for an administrative separation for misconduct be discharged through the DES process without the approval of the GCMCA. 20. A recommendation to grant relief would result in referral of the applicant's records to a PEB to determine if he should be retired or separated by reason of physical disability. 21. The Board must determine whether the evidence presented in this case forms a basis for changing the determination made by the Assistant Secretary of the Army for Manpower and Reserve Affairs, acting within his authority as the GCMCA. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160014846 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160014846 19 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2