IN THE CASE OF: BOARD DATE: 30 November 2017 DOCKET NUMBER: AR20170000768 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. 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: 30 November 2017 DOCKET NUMBER: AR20170000768 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :mwm :dt :mra DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 30 November 2017 DOCKET NUMBER: AR20170000768 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 Assistant Secretary of the Army (Manpower and Reserve Affairs) (ASA M&RA) submits an application on behalf of a group of Soldiers requesting that the Army Board for Correction of Military Records: a. consider whether a potential violation of Title 10, U.S. Code, section 1177 (Members diagnosed with or reasonably asserting post-traumatic stress disorder (PTSD) or traumatic brain injury (TBI): medical examination required before administrative separation) occurred during these Soldiers' separation processing. b. determine whether a diagnosis of PTSD and/or TBI should result in an upgrade of these Soldiers' characterizations of service. 2. The group application states the ASA M&RA was unable to confirm that these Soldiers' PTSD and TBI diagnoses were considered by the separation authority during separation processing. 3. The ASA M&RA provides an attached list of Soldiers who may have been affected by a potential violation of Title 10, U.S. Code, section 1177. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 30 May 2006. He completed his initial entry training and was awarded military occupational specialty 11C (Indirect Fire Infantryman). 2. The applicant's first permanent duty station was outside the continental U.S. (OCONUS) in Germany. While assigned in Germany, he deployed from 9 April 2008 through 28 May 2009, in support Operation Iraqi Freedom (OIF). 3. The applicant was reassigned to Fort Bliss, TX in October 2009. There, he deployed from 15 September 2011 through 26 July 2012, in support of Operation Enduring Freedom (OEF). He was promoted during the deployment on 1 July 2012, to the rank of sergeant (SGT), which was his highest rank held during his period of service. 4. DA Forms 4856 (Developmental Counseling Form) within the applicant's record shows he was counseled for the following upon return from deployment: * 7 December 2012 – event oriented counseling for failing to report to Expert Infantryman Badge training * 9 January 2013 – performance and professional growth counseling for being command referred to the Army Substance Abuse Program (ASAP) for multiple alcohol-related incidents * 15 January 2013 – event oriented for dereliction of duty; missing formation 5. The applicant deployed again from 22 December 2013 through 14 September 2014, in support of OEF. 6. DA Forms 4856 within the applicant's record show he was counseled for the following upon return from his latest deployment to OEF: * 29 September 2014 – event oriented for driving while under the influence (DWI), and disobeying a direct order from a commissioned officer on or about 27 September 2014 * 6 October 2014 – event oriented for public intoxication and refusing search of person and property on or about 2 October 2014 * 8 October 2014 – event oriented for loss or damage of military property; his military identification card 7. A DA Form 3822 (Report of Mental Status Evaluation), dated 25 November 2014, shows the applicant was evaluated for separation. The medical evaluator noted: * he was fit for full duty, including deployment * no cognitive impairments, cooperative behavior, normal perceptions, unlikely to be impulsive, and not dangerous * can understand and participate in administrative proceedings the command determines appropriate, understands the difference between right and wrong, and meets medical retention requirements * although alcohol abuse was noted within his medical record, he had no diagnosis of a personality or intelligence disorder * he was tested for PTSD and mild TBI (MTBI) with negative results 8. The applicant received a General Officer Memorandum of Reprimand (GOMOR) on 16 December 2014, for a DWI he received on or about 14 December 2012. He received another GOMOR on 6 January 2015 for a DWI he received on or about 27 September 2014. 9. The applicant's immediate commander notified him on 7 January 2015 of his intent to initiate separation actions against him, under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12(b), for pattern of misconduct. As reasons for this action, the commander cited the applicant's DWIs on 14 December 2012, 27 September 2014, and 2 October 2014; non-judicial punishment he received for improper use of rank for personal gain on or about 13 December 2012; falsifying documents on or about 9 January 2013, and failing to report on 15 January 2013. The commander indicated he was recommending the applicant receive a under honorable conditions (general) discharge. The applicant acknowledged receipt of the notification memorandum on the same date. 10. The applicant consulted with legal counsel on 9 January 2015 and was advised of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on further enlistment or reenlistment, the possible effects of this discharge, and of the procedures/rights available to him. He requested consideration of his case by an administrative separation board, a personal appearance before that board, and he acknowledged that: * he could expect to encounter substantial prejudice in civilian life if issued a less than honorable discharge * if his discharge was less than honorable, he could make application to the Army Discharge Review Board (ADRB) or ABCMR for an upgrade * an act of consideration by the ADRB or the ABCMR did not imply that his discharge would be upgraded 11. The applicant was notified on 11 February 2015 that he would appear before an administrative separation board on 4 March 2015 to determine whether he should be retained or discharged from the service for misconduct prior to his expiration term of service. 12. The applicant appeared before the administrative separation board accordingly on 4 March 2015. The board found he committed serious misconduct and recommended that he be eliminated from military service with a discharge under other than honorable conditions. 13. The separation authority approved the separation board's recommendation on 2 April 2015 and directed he be reduced to the lowest enlisted grade. 14. The applicant was discharged on 14 April 2015. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, chapter 14, in accordance with the 4 March 2015 separation board's recommendation, and his character of service was under other than honorable conditions. 15. In the processing of this case, an advisory opinion was obtained on 27 March 2017 from the Army Review Boards Agency (ARBA) Medical Advisor/Psychologist. The advisory official noted and opined: a. The applicant is seeking to verify that PTSD and other behavioral-health conditions were considered at the time of his discharge and an upgrade to the characterization of his discharge. b. During active-duty service, the applicant was in repeated trouble over his drinking. Alcoholism had emerged as a definite problem as early as September 2010 when he began treatment for alcoholism in an ASAP-type program. Treatment continued until April 2011. It had to be resumed in April 2013. It resumed yet again in October 2014 and continued until his discharge in April 2015. c. In his earliest alcoholism visits in 2010, the provider observed that the applicant had a history of alcohol dependence. In 2010 he also was accused by his wife of having assaulted her, leading to Family Advocacy involvement; however, she recanted an accusation of assault less than a month after making it. The incident, whatever its exact nature, occurred when they were drinking. d. The applicant did have a concussion with loss of consciousness in January 2013. His AHLTA history showed he had an earlier MTBI in June 2012. He also had treatment for symptoms resulting from that TBI in February 2013. The AHLTA records showed no history of PTSD. e. The chief challenge for this applicant has been his drinking. His pre-discharge Mental Status Exam showed a diagnosis of alcohol abuse in Remission, and it cleared him for discharge, found him fit for duty, and held he met medical retention standards. Further, his PTSD screening score was negative, as was his TBI score. Even allowing for his demonstrated history of concussion, there was no evidence of brain damage of a degree that would mitigate his repeated drunk driving. In short, the applicant’s behavioral health conditions were considered at the time of discharge and no mental health condition mitigated the applicant’s misconduct. f. The applicant did meet medical retention standards in accordance with Chapter 3, Army Regulation 40-501 (Standards of Medical Fitness), and following the provisions set forth in AR 635-40 (Disability Evaluation for Retention, retirement, or Separation) that were applicable to the Applicant’s era of service. g. The applicant’s mental health conditions were considered at the time of his discharge from the Army. A review of available documentation did not discover evidence of a mental health consideration that bears on the character of the discharge in this case. A mitigating nexus between the applicant’s misconduct and his mental health was not discovered. 16. The applicant was provided a copy of the advisory opinion on 28 March 2017 to allow him an opportunity to comment and/or submit a rebuttal. He did not respond. REFERENCES: 1. Title 10, U.S. Code, section 1177, states: a. Medical Examination Required: (1) Under regulations prescribed by the Secretary of Defense, the Secretary of a military department shall ensure that a member of the armed forces under the jurisdiction of the Secretary who has been deployed overseas in support of a contingency operation, or sexually assaulted, during the previous 24 months, and who is diagnosed by a physician, clinical psychologist, psychiatrist, licensed clinical social worker, or psychiatric advanced practice registered nurse as experiencing PTSD or TBI or who otherwise reasonably alleges, based on the service of the member while deployed, or based on such sexual assault, the influence of such a condition, receives a medical examination to evaluate a diagnosis of PTSD or TBI. (2) A member covered by paragraph (1) shall not be administratively separated under conditions other than honorable, including an administrative separation in lieu of court-martial, until the results of the medical examination have been reviewed by appropriate authorities responsible for evaluating, reviewing, and approving the separation case, as determined by the Secretary concerned. (3) In a case involving PTSD, the medical examination shall be performed by a clinical psychologist, psychiatrist, licensed clinical social worker, or psychiatric advanced practice registered nurse. In cases involving TBI, the medical examination may be performed by a physician, clinical psychologist, psychiatrist, or other health care professional, as appropriate. b. Purpose of Medical Examination. The medical examination required by subsection (a) shall assess whether the effects of PTSD or TBI constitute matters in extenuation that relate to the basis for administrative separation under conditions other than honorable or the overall characterization of service of the member as other than honorable. c. Inapplicability to Proceedings Under Uniform Code of Military Justice. The medical examination and procedures required by this section do not apply to courts-martial or other proceedings conducted pursuant to the Uniform Code of Military Justice. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. 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. Clinical experience with the PTSD diagnosis has shown, however, that there are individual differences regarding the capacity to cope with catastrophic stress. Therefore, while most people exposed to traumatic events do not develop PTSD, others go on to develop the full-blown syndrome. Such observations have prompted the recognition that trauma, like pain, is not an external phenomenon that can be completely objectified. Like pain, the traumatic experience is filtered through cognitive and emotional processes before it can be appraised as an extreme threat. Because of individual differences in this appraisal process, different people appear to have different trauma thresholds, some more protected from and some more vulnerable to developing clinical symptoms after exposure to extremely stressful situations. 5. The DSM fifth revision (DSM-5) was released in May 2013. This revision includes changes to the diagnostic criteria for PTSD and Acute Stress Disorder. The PTSD diagnostic criteria were revised to take into account things that have been learned from scientific research and clinical experience. The revised diagnostic criteria for PTSD include a history of exposure to a traumatic event that meets specific stipulations and symptoms from each of four symptom clusters: intrusion, avoidance, negative alterations in cognitions and mood, and alterations in arousal and reactivity. The sixth criterion concerns duration of symptoms; the seventh assesses functioning; and the eighth criterion clarifies symptoms as not attributable to a substance or co-occurring medical condition. a. Criterion A, stressor: The person was exposed to: death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence, as follows: (one required) (1) Direct exposure. (2) Witnessing, in person. (3) Indirectly, by learning that a close relative or close friend was exposed to trauma. If the event involved actual or threatened death, it must have been violent or accidental. (4) Repeated or extreme indirect exposure to aversive details of the event(s), usually in the course of professional duties (e.g., first responders, collecting body parts; professionals repeatedly exposed to details of child abuse). This does not include indirect non-professional exposure through electronic media, television, movies, or pictures. b. Criterion B, intrusion symptoms: The traumatic event is persistently re-experienced in the following way(s): (one required) (1) Recurrent, involuntary, and intrusive memories. (2) Traumatic nightmares. (3) Dissociative reactions (e.g., flashbacks) which may occur on a continuum from brief episodes to complete loss of consciousness. (4) Intense or prolonged distress after exposure to traumatic reminders. (5) Marked physiologic reactivity after exposure to trauma-related stimuli. c. Criterion C, avoidance: Persistent effortful avoidance of distressing trauma-related stimuli after the event: (one required) (1) Trauma-related thoughts or feelings. (2) Trauma-related external reminders (e.g., people, places, conversations, activities, objects, or situations). d. Criterion D, negative alterations in cognitions and mood: Negative alterations in cognitions and mood that began or worsened after the traumatic event: (two required) (1) Inability to recall key features of the traumatic event (usually dissociative amnesia; not due to head injury, alcohol, or drugs). (2) Persistent (and often distorted) negative beliefs and expectations about oneself or the world (e.g., "I am bad," "The world is completely dangerous"). (3) Persistent distorted blame of self or others for causing the traumatic event or for resulting consequences. (4) Persistent negative trauma-related emotions (e.g., fear, horror, anger, guilt, or shame). (5) Markedly diminished interest in (pre-traumatic) significant activities. Feeling alienated from others (e.g., detachment or estrangement). (6) Constricted affect: persistent inability to experience positive emotions. e. Criterion E, alterations in arousal and reactivity: Trauma-related alterations in arousal and reactivity that began or worsened after the traumatic event: (two required) (1) Irritable or aggressive behavior (2) Self-destructive or reckless behavior (3) Hypervigilance (4) Exaggerated startle response (5) Problems in concentration (6) Sleep disturbance f. Criterion F, duration: Persistence of symptoms (in Criteria B, C, D, and E) for more than one month. g. Criterion G, functional significance: Significant symptom-related distress or functional impairment (e.g., social, occupational). h. Criterion H, exclusion: Disturbance is not due to medication, substance use, or other illness. 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 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. a. 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. b. 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. c. Correction 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. The Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance on 25 August 2017, for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. DISCUSSION: 1. The applicant's record shows he received GOMORs and non-judicial punishment for numerous offenses. He was cleared for administrative proceedings deemed appropriate by his chain of command by a medical official who determined his tests for PTSD and MTBI were negative. Accordingly, his chain of command initiated separation actions against him for misconduct recommending an under honorable conditions (general) discharge. 2. The applicant elected to appear before an administrative separation board. His request to appear was approved. The administrative separation board recommended he be discharged under other than honorable conditions. The board's recommendation was approved by the separation authority. 3. Army Regulation 635-200, chapter 14, provides for separation of Soldiers due to patterns of misconduct. By his numerous instances of misconduct, the applicant demonstrated that he could not or would not meet acceptable standards required of enlisted personnel in the Army. 4. During his separation processing, the medical examiner determined his PTSD and TBI screening was negative and he suffered from no other behavioral health conditions. It appears his mental health conditions were considered prior to his separation processing. 5. The ARBA advisory official determined he had no diagnosis of PTSD and /or MTBI. The ARBA advisory official found his PTSD screening score was negative, as was his TBI score. Even allowing for his demonstrated history of concussion, there was no evidence of brain damage of a degree that would mitigate his repeated drunk driving. His behavioral health conditions were considered at the time of discharge and no mental health condition mitigated the applicant’s misconduct. 6. The applicant's record of indiscipline included multiple violations of the UCMJ, local and state laws that resulted in his separation for misconduct. The separation Board and separation authority determined his service did not rise to the level required for a general or an honorable discharge. There was no diagnosis of PTSD and/or TBI to support a mitigating nexus between his mental-health and his misconduct, which would support an upgrade of his characterization of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170000768 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170000768 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2