IN THE CASE OF: BOARD DATE: 14 December 2017 DOCKET NUMBER: AR20170002858 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: 14 December 2017 DOCKET NUMBER: AR20170002858 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: 14 December 2017 DOCKET NUMBER: AR20170002858 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 PTSD or 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. On 29 January 2008, the applicant enlisted in the Regular Army. After completing his initial entry training, he was awarded military occupational specialty (MOS) 12B (Combat Engineer). 2. His record shows he was deployed to Iraq from 4 January 2009 to 18 December 2009. 3. A DA Form 4187 (Personnel Action), dated 9 November 2010, shows his duty status changed from present for duty to absent without leave (AWOL). 4. A DD Form 553 (Deserter/Absentee Wanted by the Armed Forces), dated 10 December 2010, shows the applicant was reported absent without leave (AWOL) on 10 November 2010. The document also noted in item 19 (Remarks) that he had three positive urinalysis tests (twice for cocaine and once for marijuana.) 5. A DA Form 4187 (Personnel Action) shows his duty status changed from AWOL to dropped from rolls (DFR) from the Army effective 10 December 2010. 6. A DA Form 458 (Charge Sheet), dated 10 December 2010 shows the applicant was charged with being AWOL beginning 9 November 2010 with the intent to remain away permanently. 7. A DA Form 616 (Report of Return of Absentee), dated 19 May 2011, shows the applicant was returned to military control on 19 May 2011 and was transferred to the 95th Engineer Company, Schofield Barracks, HI. 8. The applicant’s complete separation package is not available. 9. On 19 May 2011, the applicant was discharged under provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – drug abuse. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his service was characterized as under other than honorable conditions. His DD Form 214 further confirms he had lost time from 10 November 2010 through 9 December 2010, 13 December 2010 through 11 January 2011, 26 January 2011 through 2 February 2011, and 10 February 2011 through 5 March 2011. 10. During the processing of this case, an advisory opinion was obtained from an Army Review Boards Agency Staff Medical Advisor/Psychologist, who states: a. The applicant was deployed to Iraq from 4 January 2009 to 18 December 2009. After his deployment he claimed he suffered a concussion. b. His pre-discharge mental status examination (MSE) cleared him for discharge and diagnosed him as having an opioid dependence in early partial remission. The Armed Forces Health Longitudinal Technology Application (AHLTA) showed behavioral health diagnoses of adjustment disorder, adjustment insomnia, alcohol abuse (Army Substance Abuse Program (ASAP) visits in 2008, 2010, 2011), anxiety not otherwise specified (NOS) (17 behavioral health visits from May to November 2010), bereavement without complications, cannabis abuse (ASAP treatment in 2008, 2010, and 2011), depression, history of concussion (one visit in October 2010, with no theater clinic notes mentioning concussion), insomnia, opioid dependence (2010), psychoactive substance dependence combination of drugs (2011), and substance use disorders during his time in the Army. c. Because the applicant tested positive on a screen for PTSD and on a screen for TBI, the MSE examiner entered a consult to rule out these conditions; however, the applicant was discharged before the consult was fulfilled. The MSE examiner had cleared the applicant for administrative discharge, and also viewed him as meeting medical retention requirements, and hence not eligible for a medical evaluation board (MEB). d. The applicant’s drug history predates the Army. In an AHLTA note on 25 October 2010, he told the provider he had been treated for heroin-opioid dependence at an unnamed clinic in 2007. In an AHLTA note of 22 February 2011, the applicant told the examiner he had been addicted to heroin for the past 5 years. He also said in the October 2010 BH visit that he had used marijuana at age 7. It is not, given the totality of evidence, plausible to attribute his drug problems to his deployment in 2009. e. None of his diagnoses in AHLTA mitigate his misconduct. His mental health conditions, including possible PTSD and putative history of TBI, were considered at the time of his discharge. f. The applicant’s medical records do not at the time of his discharge reasonably support him having had a boardable medical condition. The available case material did not support the existence of a mitigating mental health condition at the time of his misconduct. His records did include an exit medical exam required by Title 10, Section 1177, and based on available behavioral health evidence, there is insufficient evidence to mitigate the applicant’s behavior based on PTSD, TBI, depression, or other behavioral-health condition. g. 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 Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). His mental health conditions were considered at the time of his discharge from the Army. h. A review of available documentation did not discover evidence of a mental health considerations 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. 11. The applicant was provided a copy of the advisory opinion with an opportunity to respond. 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 post-traumatic stress disorder, 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 (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 (Enlisted Administrative Separation) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides that 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 provides that 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 of this regulation establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absences without leave. 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 considered appropriate. 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. a. The 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. 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 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. 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 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. 6. 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. a. This acknowledgement is the result of the extensive research conducted by the medical community, along with the relatively recent issuance of revised criteria regarding the causes, diagnosis, and treatment of PTSD. b. It is also recognized that, in some cases, this undiagnosed condition of PTSD may have been a mitigating factor in the misconduct that served as a catalyst for the Soldier's discharge. c. Of note, research has demonstrated 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 extended periods. 7. In view of the foregoing, on 3 September 2014, the Secretary of Defense gave written guidance to Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs). The memorandum directed them to consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on requests for upgrades in the character of service for former service members who had a valid diagnosis of PTSD. 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 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 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. 10. 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 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 records show he was AWOL on multiple occasions, tested positive twice for cocaine and once for marijuana use, and he was pending court- martial for his actions. 2. An Army Review Boards Agency Staff Psychologist conducted a review of his medical records and found evidence to show: a. None of his diagnoses mitigate his misconduct. His mental health conditions, including possible PTSD and a putative history of TBI, were considered at the time of his discharge. b. His medical records do not at the time of his discharge reasonably support him having had a boardable medical condition. The available case material did not support the existence of a mitigating mental health condition at the time of his misconduct. c. His records did include an exit medical exam required by Title 10, Section 1177, and based on available behavioral health evidence, there is insufficient evidence to mitigate the applicant’s behavior based PTSD, TBI, depression, or other behavioral-health condition. d. He did meet medical retention standards in accordance with Chapter 3, Army Regulation 40-501 and Army Regulation 635-40. His mental health conditions were considered at the time of his discharge from the Army. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170008962 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170002858 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2