IN THE CASE OF: BOARD DATE: 21 December 2017 DOCKET NUMBER: AR20170002694 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: 21 December 2017 DOCKET NUMBER: AR20170002694 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :x :x :x DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 21 December 2017 DOCKET NUMBER: AR20170002694 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) (ASAMRA) 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; and 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 ASAMRA was unable to confirm that these Soldiers' PTSD and TBI diagnoses were considered by the separation authority during separation processing. 3. The ASAMRA 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 20 January 1998. 2. He served in Iraq during the following periods: * 19 January 2004 to 14 February 2005 * 5 December 2007 to 24 October 2008 3. He was promoted to the rank of sergeant first class effective 1 May 2010. 4. He served in Afghanistan from 27 May 2012 to 30 November 2012. 5. His records show he had lost time during the period 21 to 23 April 2013. 6. On 23 October 2013, nonjudicial punishment was imposed against him for the following offenses: * violating a lawful general regulation (borrowing money from his subordinates) * violating a lawful general regulation (kissing a subordinate) * unlawful entry 7. On 26 November 2013, he underwent a mental status evaluation and was diagnosed as having insomnia by reporting history and seizure disorder by history. a. He was screened for PTSD with a negative result. b. He was screened for mild TBI with a positive result. He was referred for a comprehensive TBI evaluation. He reported he was in an improvised explosive device explosion while deployed to Iraq in 2006/2007. He reported no injury was sustained. He also reported he had a seizure while deployed in Afghanistan in 2011/2012 and lost consciousness, falling and splitting his head open. He reported he was seen by the Landstuhl Medical Facility and was cleared of any mild TBI/TBI. c. He was psychiatrically cleared for separation. 8. His records are void of the specific facts and circumstances surrounding his discharge action; however, his DD Form 214 shows he was discharged for misconduct (drug abuse) on 5 June 2014 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c(2). He completed a total of 16 years, 4 months, and 13 days of creditable active service with 3 days of lost time. His service was characterized as under other than honorable conditions (UOTHC). 9. There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge. 10. An advisory opinion was rendered by the Army Review Boards Agency Psychiatrist, dated 27 February 2017, wherein she stated: a. The applicant's military medical records show he was diagnosed with the following medical conditions: * insomnia on 13 December 2008 * opioid dependence on 29 October 2009 * chronic pain syndrome and drug-seeking behavior on 10 July 2013 * concussion on 29 September 2012 * generalized tonic epilepsy on 11 October 2012 b. There is no documentation in his medical records supporting a diagnosis of PTSD. c. In conclusion, the applicant screened negative for PTSD during his mental status evaluation. There is no documentation in his records that he ever sought behavioral health services for PTSD or any other behavioral health conditions besides insomnia. His separation mental status evaluation shows he screened positive for TBI. A comprehensive evaluation performed by the Madigan Army Medical Center TBI Clinic reported he sustained a concussion while deployed to Afghanistan. He did not suffer from any loss of consciousness. This evaluation concluded there was no acquired cognitive impairment and the applicant was cleared for worldwide deployment. Based on the documentation available for review at this time, there is no evidence of a mitigating mental health condition. 11. A copy of this advisory opinion was provided to the applicant for comment and/or rebuttal. He did not respond. REFERENCES: 1. Title 10, U.S. Code, section 1177, provides: 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 from active duty. a. 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. 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. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense. The issuance of a discharge UOTHC is normally considered appropriate. 3. 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. 4. 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." 5. 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. 6. 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. 7. 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 (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. 8. On 3 September 2014 in view of the foregoing information, 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 applicants' service. 9. 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? 10. 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. 11. 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, 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, on 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. In the absence of evidence to the contrary, it must be presumed that the applicant's separation processing was administratively correct and in conformance with applicable regulations. Without the discharge packet to consider, it is presumed that the authority and reason for his discharge and the characterization of service he received were commensurate with his overall record of service. 2. The Army Review Boards Agency Psychiatrist determined: * there is no documentation in the applicant's medical records supporting a diagnosis of PTSD * he screened negative for PTSD during his mental status evaluation * he screened positive for TBI * his comprehensive TBI evaluation concluded there was no acquired cognitive impairment and he was cleared for worldwide deployment * there is no evidence of a mitigating mental health condition //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170002694 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170002694 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2