BOARD DATE: 30 November 2017 DOCKET NUMBER: AR20170002828 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by issuing him a new DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows his service characterization as under honorable conditions (general). 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. DOCKET NUMBER: AR20170002828 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :mwm :dt :mra GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 30 November 2017 DOCKET NUMBER: AR20170002828 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 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 25 October 2011. Following completion of initial entry training he was awarded military occupational specialty 12B (Combat Engineer). 2. The applicant served in Afghanistan from 7 November 2012 to 29 July 2013. 3. A DA Form 3822 (Report of Mental Status Evaluation), dated 26 May 2015, shows the applicant was unfit for duty due to a serious mental condition that was not likely to resolve within a year. a. He was psychologically cleared for any administrative actions deemed appropriate by his chain of command. However, he was currently engaged in the Medical Evaluation Board (MEB) process for a diagnosis of PTSD. b. Final diagnosis through the Disability Evaluation System (DES) takes precedence over administrative separation processing, and ultimately the General Court-Martial Convening Authority (GCMCA) would determine whether the case would be processed through disability channels or through administrative separation provisions. As such, disposition through administrative and medical channels may proceed simultaneously. 4. A DD Form 458 (Charge Sheet), dated 8 June 2015, shows court-martial charges were preferred against the applicant for nine specifications of wrongful use of D-amphetamine and D-methamphetamine, on numerous occasions. 5. On 16 June 2015, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a bad conduct or dishonorable discharge, and the procedures and rights available to him. Subsequent to receiving this legal counsel, he voluntarily requested discharge in lieu of trial by court-martial, under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10. a. In his request for discharge, he indicated he understood if his request for discharge was accepted, he could be discharged under other than honorable conditions. He acknowledged he was guilty of at least one of the charges against him or of a lesser-included offense. b. He indicated he had been advised of the possible effect of an under other than honorable conditions discharge and understood that he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. c. He was advised he may submit statements in his behalf. He provided a statement wherein he indicated he had experienced PTSD based on his service while deployed during November 2012 through July 2013. 6. On 17 June 2015, the applicant's counsel submitted a request recommending dismissal without prejudice of the charges and specifications 1 through 5, and 7 through 9. The charge for violation of the UCMJ, specification 6, wrongful use of D-amphetamine and D-methamphetamine, between on or about 8 February and 12 February 2015, remained. The approval authority approved counsel’s recommendation. 7. On 17 June 2015, the GCMCA approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed that he be reduced to the lowest enlisted grade and discharged under other than honorable conditions. 8. On 7 July 2015, the applicant was discharged accordingly under the provisions of Army Regulation 635-200, chapter 10. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was credited with 3 years, 8 months, and 8 days of net active service, and his service was characterized as under other than honorable conditions. 9. There is no evidence the applicant applied to the Army Discharge Review Board within that board's 15-year statute of limitations. 10. On 5 April 2017, the Army Review Boards Agency (ARBA) medical advisor/psychologist provided an advisory opinion, which states: a. A review of the applicant’s electronic medical record indicates his first encounter with Behavioral Health (BH) was on 9 May 2013 during his deployment to Afghanistan. While in theater, he was seen by BH three times. Upon redeploying, he initially saw BH on 3 December 2013. He remained engaged in treatment until his discharge from the Army in July 2015. During this time, he was hospitalized psychiatrically twice (25 August 2014 and 3 February 2015). In addition, he was followed by the Army Substance Abuse Program (ASAP) and the Family Advocacy Program while on active duty. b. While deployed he was diagnosed with Military Operational Stress Disorder. On 24 September 2014, he was diagnosed with PTSD related to combat trauma and childhood trauma. His combat stressors included being shot at, seeing dead bodies, the loss of two friends in combat, being on a base that was constantly mortared, and feeling his life was in danger on a daily basis. His childhood stressors included being physically abused and physically assaulted by a family member. His symptoms of PTSD included the following: increased anger and irritability, anxiety attacks, nightmares, flashbacks, emotional detachment, avoidance of large crowds, paranoia, decreased interest in normally enjoyable activities, hypervigilance, and impaired sleep. The applicant reported that his PTSD symptoms began in December 2013 while he was deployed. He reported his squad leader, at the time, was emotionally abusive and reminded him of his abusive, alcoholic father who triggered his childhood memories of trauma. c. On 14 January 2015, the diagnosis of bipolar disorder, mixed affective type was added to his list of diagnoses based on his symptoms of extreme irritability, wide and rapid mood swings, grandiose thinking, and increased activity. He was placed on a permanent psychiatric profile at this time and an MEB was initiated. d. On 27 March 2015, the applicant was seen by BH after completing a 28 day inpatient hospital stay at Cedar Crest Psychiatric Hospital. During this hospitalization, the applicant was diagnosed with PTSD and mood disorder. His psychiatrist documented that the applicant “appears almost manic”. e. At the time of discharge from the Army, the applicant’s BH Problem List included the following diagnoses: PTSD, bipolar disorder, amphetamine dependence, alcohol dependence, attention deficit hyperactivity disorder, inattentive type, other specified family circumstances. At the time of his discharge from the Army, he was on multiple psychiatric medications. f. A command-directed mental status evaluation for separation was completed on 26 May 2015. This evaluation indicated the applicant screened positive for PTSD with a psychopathy checklist score of 65. He screened negative for TBI. His mental status examination was within normal limits with the exception of impulsivity being described as “frequently impulsive.” g. The applicant’s military medical records do support a PTSD diagnosis at the time of discharge; his PTSD appears to be related to both combat trauma and childhood trauma. The applicant’s medical records indicate he did not meet medical retention standards and separation through military medical channels was indicated. h. The applicant’s diagnosis of PTSD is a mitigating factor in his misconduct. As PTSD is associated with the use of illicit substances to self-medicate symptoms, there is a nexus between his PTSD diagnosis and the illicit use of methamphetamine/amphetamine. The applicant did undergo the required medical examination and BH examination prior to his discharge as required by Title 10, Section 1177. 11. The applicant was provided a copy of the advisory opinion on 5 April 2017 for his review and to allow him the opportunity to rebut the opinion, if desired. 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 the uniform code of military justice (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. Army Regulation 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 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 3. 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. 4. 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; traumatic brain injury (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 evidence of record shows the applicant was charged with the commission of a serious offense that was punishable under the UCMJ with a punitive discharge. After consulting with counsel, he elected discharge under the provisions of Army Regulation 635-200, chapter 10. Discharges under this regulatory provision are voluntary requests for discharge in lieu of trial by court-martial. By requesting the chapter 10 discharge, he admitted he was guilty of at least one of the charges against him. 2. The ARBA medical advisor conducted a review of the applicant's medical records and found the applicant did undergo the required medical examination and BH examination prior to his discharge, as required by Title 10, U.S. Code, Section 1177. 3. Based on a review of available documentation, the advisory official determined the applicant’s diagnosis of PTSD was a mitigating factor in his misconduct. As PTSD is associated with the use of illicit substances to self-medicate symptoms, there is a nexus between his PTSD diagnosis and the illicit use of methamphetamine/amphetamine. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170002828 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170002828 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2