SAMR-RB 12 February 2018 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for, AR20170002628 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 7 December 2017, in which the Board members unanimously recommended denial of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as "General, Under Honorable Conditions." 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 7 June 2018. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: Encl CF: ( ) OMPF Deputy Assistant Secretary of the Army (Review Boards) IN THE CASE OF: BOARD DATE: 7 December 2017 DOCKET NUMBER: AR20170002628 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: 7 December 2017 DOCKET NUMBER: AR20170002628 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :LAG :ATD :QAS DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 7 December 2017 DOCKET NUMBER: AR20170002628 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 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) and/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 if 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 5 September 2008. He held military occupational specialty 92F (Petroleum Supply Specialist). He was deployed to Iraq from 8 September 2009 through 22 June 2010, and, while deployed, attained the rank/grade of private first class/E-3. 2. On 19 May 2010, consistent with his pleas, a summary court-martial found him guilty and convicted him of eight violations of Article 92 (Violation of a General Order), Uniform Code of Military Justice (UCMJ). a. The charges were as follows: * 12 April 2010 – introducing a substance to create an impaired state of mind (hereinafter referred to as an illegal drug) * 10 April 2010 – one specification of selling an illegal drug and one specification of allowing a female Soldier in his living quarters * 1 January 2010 – two specifications of using an illegal drug; two specifications of transferring an illegal drug; one specification of consuming alcohol b. The court sentenced him to reduction to private (PV1)/E-1, forfeiture of two-thirds pay for one month ($964.00), and hard labor without confinement for 30 days. c. The convening authority approved the sentence on 22 May 2010 and ordered it executed. 3. The applicant's official military personnel file (OMPF) is void of documentation associated with either a PTSD or TBI diagnosis. In addition, his separation packet is not available for review. His OMPF, however, contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 19 July 2010 that shows he was discharged under other than honorable conditions due to misconduct. a. His DD Form 214 also shows he completed 1 year, 10 months, and 15 days. His rank was PV1/E-1; date of rank (DOR) is 2 June 2010. b. He was awarded or authorized: * National Defense Service Medal * Global War on Terrorism Service Medal * Iraq Campaign Medal with one bronze service star * Army Service Ribbon * Overseas Service Ribbon * Sharpshooter Marksmanship Qualification Badge with Rifle Bar c. The separation authority was Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 14 (Separation for Misconduct), paragraph 14-12c(2) (Commission of a Serious Offense – Abuse of Illegal Drugs). 4. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. 5. On 8 March 2017, an Army Review Boards Agency (ARBA) psychologist provided an advisory opinion. a. The ARBA psychologist reviewed the applicant's military electronic medical record and found: * prior to his deployment, he received treatment in his community for adjustment disorder following his wife's complicated pregnancy, which resulted in having a still-born baby * after committing the misconduct that led to his summary court-martial, but prior to his conviction, he was seen at the theater clinic for adjustment disorder * he underwent a pre-discharge mental status examination on 22 June 2010 and was approved for administrative separation; although he tested high for PTSD, the psychologist rejected PTSD as the correct diagnosis, arguing adjustment disorder fit better with her assessment * the foregoing shows PTSD was considered during the separation process; PTSD and other behavioral conditions were rejected as a mitigation for his misconduct b. The ARBA psychologist found: * the available records did not reasonably support the existence of PTSD or other behavioral health conditions such that referral into the Disability Evaluation System (DES) was warranted during his active service * the applicant met mental health medical retention standards while on active duty * no conditions were discovered that would serve to mitigate the misconduct that resulted in the applicant's adverse discharge * available records did show a medical examination was conducted prior to separation that fulfilled the requirements of Title 10, section 1177 * based on the available behavioral-health evidence, the applicant's current PTSD and other mental health problems, including TBI, were considered at time of discharge, and did not mitigate his misconduct 6. The applicant was provided a copy of the advisory opinion on 9 March 2017. He did not submit a response. 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 the UCMJ. The medical examination and procedures required by this section do not apply to courts-martial or other proceedings conducted pursuant to the UCMJ. 2. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph  3-7b states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-7c states a discharge under other than honorable conditions is based on an administrative separation from the service, and may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial. When a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade. d. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and the commission of a serious offense (to include abuse of illegal drugs). Action will be taken to separate a member for misconduct when it was 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. 3. PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster. a. The Diagnostic and Statistical Manual of Mental Disorders (DSM) is published by the American Psychiatric Association (APA), and 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. b. From a historical perspective, the significant change ushered in by the PTSD concept was the stipulation that the etiological agent was outside the individual (i.e., a traumatic event) rather than an inherent individual weakness (i.e., a traumatic neurosis). The key to understanding the scientific basis and clinical expression of PTSD is the concept of "trauma." 4. PTSD is unique among psychiatric diagnoses because of the great importance placed upon the etiological agent, the traumatic stressor. In fact, one cannot make a PTSD diagnosis unless the patient has actually met the "stressor criterion," which means he or she has been exposed to an event that is considered traumatic. a. Clinical experience with the PTSD diagnosis has shown 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. b. Like pain, the traumatic experience is filtered through cognitive and emotional processes before it can be appraised as an extreme threat. Because of individual differences in this appraisal process, different people appear to have different trauma thresholds, some more protected from, and some more vulnerable to developing clinical symptoms after exposure to extremely stressful situations. 5. The Fifth Revision of the DSM (DSM-5) was released in May 2013. This updated edition included 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) * Irritable or aggressive behavior * Self-destructive or reckless behavior * Hypervigilance * Exaggerated startle response * Problems in concentration * 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. 6. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors, when taking action on applications from former service members administratively discharged under other than honorable conditions, 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. 7. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance 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; sexual harassment. Boards were directed 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 that misconduct which led to the discharge. 8. BCM/NRs are not courts, nor are they investigative agencies. Therefore, the determinations are based upon a thorough review of the available military records and the evidence provided by each applicant on a case-by-case basis. When determining if PTSD was the causative factor for an applicant's misconduct and whether an upgrade is warranted, the following factors must be carefully considered: * Is it reasonable to determine that PTSD or PTSD-related conditions existed at the time of discharge? * Does the applicant's record contain documentation of the occurrence of a traumatic event during the period of service? * Does the applicant's military record contain documentation of a diagnosis of PTSD or PTSD-related symptoms? * Did the applicant provide documentation of a diagnosis of PTSD or PTSD-related symptoms rendered by a competent mental health professional representing a civilian healthcare provider? * Was the applicant's condition determined to have existed prior to military service? * Was the applicant's condition determined to be incurred during or aggravated by military service? * Do mitigating factors exist in the applicant's case? * Did the applicant have a history of misconduct prior to the occurrence of the traumatic event? * Was the applicant's misconduct premeditated? * How serious was the misconduct? 9. Although DOD acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had PTSD at the time of discharge, it is presumed 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 under other than honorable conditions characterization of service. b. 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 under other than honorable conditions. 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. c. PTSD is not a likely a cause of premeditated misconduct. Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. DISCUSSION: 1. The applicant's discharge packet is not available for review. His OMPF includes a DD Form 214, and, in the absence of evidence showing otherwise, it is presumed he was properly and equitably discharged in accordance with the Army regulations that were in effect at the time. 2. The ARBA psychologist reviewed the applicant’s available medical records and found: * available records did show a medical examination was conducted prior to separation that fulfilled the requirements of Title 10, U.S. Code, section 1177 * the records did not reasonably support the existence of PTSD or other behavioral health conditions such that referral into the Disability Evaluation System (DES) was warranted during his active service; he met mental health medical retention standards * no conditions were discovered that would serve to mitigate the misconduct that resulted in his adverse discharge //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170002628 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170002628 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2