BOARD DATE: 25 January 2018 DOCKET NUMBER: AR20170003132 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. __________x_______________ CHAIRPERSON 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. BOARD DATE: 25 January 2018 DOCKET NUMBER: AR20170003132 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 applicant requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show a separation program designator (SPD) code and reentry (RE) code that reflect his fully honorable service without any lost time. 2. The applicant states his post-traumatic stress disorder (PTSD) led him to behavior that was unbecoming of an Army Soldier. His drug use was a desperate attempt to self-medicate because of the severity of his PTSD symptoms which were diagnosed in the military. He was not afforded any PTSD treatment by the Army prior to his discharge. He was transferred to a new unit and discharged abruptly before scheduled mental health treatment could be started. He is presently rated as totally disabled by the Department of Veterans Affairs (VA) due to the severity of his PTSD symptoms, which preclude any employment. 3. The applicant provides: * Mental Status Evaluation, Bayne-Jones Army Community Hospital, dated 9 December 2004 (2 pages) * DD Form 256A (Honorable Discharge Certificate) effective 25 January 2005 * DD Form 214 for the period ending 25 January 2005 * Letter from a long time close friend, dated 21 October 2014 * Letter from a Staff Psychologist, VA Medical Center, Ashville, North Carolina, dated 15 December 2014 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. On 14 February 2002 the applicant enlisted in the Regular Army. He was trained as a power generator equipment repairman. 3. The applicant served in Iraq from 25 April 2003 to 12 July 2004. 4. On 25 August 2004 the applicant received a general officer memorandum of reprimand (GOMOR) while assigned to the 2nd Armored Cavalry Regiment at Fort Polk, Louisiana. The GOMOR states that the applicant was stopped at a checkpoint while operating a motor vehicle. The Military Police Officer detected an odor of an alcoholic beverage emitting from the applicant's breath. He performed poorly on two field sobriety tests and subsequently produced a blood alcohol content reading of .125g/100ml. The GOMOR was imposed as an administrative measure and not as punishment. 5. The applicant acknowledged receipt of the GOMOR and indicated his desire to submit a rebuttal. In a memorandum for record, dated 2 September 2004, the applicant stated that he had been charged on 17 August 2004 for driving under the influence (DUI) of alcohol. He was stopped at the front gate at 0200 hours. He was coming home from a club knowing that he had to work the next day. He admitted his mistakes of first going to the club knowing he had to work the next day, and second, his mistake of driving after drinking. He further stated that he had enrolled himself in the Army Substance Abuse Program (ASAP) and would be attending alcohol abuse classes and anger management classes at a later date. He apologized and asked that the GOMOR not be placed in his permanent record because he was already paying a high price for his mistake and putting the GOMOR in his records would not serve a useful purpose. 6. On 9 December 2004 the applicant underwent a command directed mental status examination pursuant to separation proceedings being initiated. By memorandum the treating psychiatrist stated that upon examination the applicant did not reveal any psychiatric conditions or symptoms that would impair his ability to participate in discharge proceedings. The applicant did describe signs and symptoms of disturbed sleep, anxiety, recurrent nightmares and increased irritability that were consistent with a moderate variant of combat stress presentation. He was diagnosed on Axis I as "E/F PTSD, MJ [marijuana] Abuse." 7. On 13 December 2004 the applicant was counseled and it was recorded on a DA Form 4856 (Developmental Counseling Form). He had violated Article 112a of the Uniform Code of Military Justice for possession of a controlled substance and a positive urinalysis for tetrahydrocannabinol. He was informed he could be administratively discharged under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 14. 8. On 7 January 2005 the applicant's immediate commander notified him of his intent to initiate separation action against him in accordance with AR 635-200, paragraph 14-12c, for commission of a serious offense(s). The specific reasons cited was the applicant's positive test for marijuana and wrongful possession of marijuana. The commander recommended the applicant receive a general, under honorable conditions characterization of service. That same day the applicant acknowledged receipt that his commander was initiating separation action. 9. On 13 January 2005 the applicant consulted with legal counsel (a military attorney) and affirmed he had been advised of the basis for the contemplated separation action. He elected not to submit a statement in his own behalf; he also requested representation by military counsel and acknowledged he could encounter substantial prejudice in civilian life, if he received a discharge under other than honorable conditions. 10. The separation authority approved the commander's recommendation and directed the applicant be issued a general discharge under honorable conditions. He was separated accordingly on 25 January 2005. 11. His DD Form 214 shows he completed 2 years, 11 months, and 12 days of net active service. He was awarded or authorized the National Defense Service Medal, the Global War on Terrorism Expeditionary Medal, the Global War on Terrorism Service Medal, and the Army Service Ribbon. It also contains the following information: * item 24 (Character of Service) – Under Honorable Conditions (General) * item 25 (Separation Authority) – AR 635-200, paragraph 14-12c(2) * item 26 (Separation Code (SPD)) – JKK * item 27 (RE Code) – RE-4 * item 28 (Narrative Reason for Separation) – misconduct abuse of illegal drugs * item 29 (Dates of Lost Time During this Period) – None 12. On 10 February 2005 the imposing general officer directed the applicant’s GOMOR be filed in his official military personnel file (OMPF). 13. On 29 April 2015 the Army Discharge Review Board (ADRB) reviewed the applicant's request for an upgrade to his discharge. The ADRB noted in its case report that the applicant had contended his symptoms related to PTSD caused the behavioral problems leading to his discharge. He argued that his PTSD should be considered as a mitigating factor to upgrade his discharge to honorable. a. The ADRB noted that the applicant’s OMPF indicated he was notified of initiation of separation action under the provisions of AR 635-200, chapter 14-12c, by reason of misconduct due to the commission of a serious offense; to wit the wrongful possession of marijuana and positive testing for its use. Based on this, the unit commander recommended a general, under honorable conditions characterization of service discharge. b. On an unknown date, the separation authority waived further rehabilitation and directed the applicant’s discharge with an under honorable conditions characterization of service. c. The applicant was accordingly discharged from the Army on 25 January 2005. d. The ADRB determined, on the basis of his length and quality of service, to include combat service and his PTSD symptoms that his characterization of service was too harsh, and voted to change it to honorable. The ADRB also determined that the narrative reason was proper and equitable and voted not to change it. 14. A new DD Form 214 was issued to the applicant pursuant to the ADRB decision. The following entries are shown on his DD Form 214. * item 24 (Character of Service) – Honorable * item 25 (Separation Authority) – AR 635-200, paragraph 14-12c * item 26 (Separation Code (SPD)) – JKK * item 27 (RE Code) – RE-4 * item 28 (Narrative Reason for Separation) – misconduct (drug abuse) The DD Form 214 does not indicate the applicant had any lost time. 15. In the processing of this case, a staff medical advisory opinion was obtained wherein the psychiatrist opined that the applicant’s SPD code of JKK was too harsh because he only had one documented instance of misconduct for marijuana abuse. However, the psychiatrist felt the applicant’s RE code of 4 was appropriate given the severity and number of his psychiatric diagnoses. His current psychiatric conditions are not compatible with effective military service. a. The VA records show the applicant was diagnosed with PTSD, low back pain, alcohol abuse and Persian Gulf exposure on 18 November 2009. b. On 10 June 2010, the applicant’s VA diagnoses were PTSD, chronic – combat; alcohol dependence, in early remission; cannabis dependence, in early remission; and mood disorder, not otherwise specified. c. He currently has a VA total service connected disability rating of 80 percent, with 70 percent for PTSD. He is actively involved in treatment at the VA receiving out-patient treatment for PTSD. There is evidence he was hospitalized in an inpatient status for PTSD. His current diagnoses includes: * PTSD, chronic * Bipolar disorder * Major depressive disorder * Alcohol dependence, in remission * Cannabis dependence, in remission * Nicotine dependence 16. On 14 June 2017 a copy of the staff medical advisory opinion was sent to the applicant for his information and opportunity to respond. No response was received. 17. The letter of support, as provided by the applicant, dated 21 October 2014, from a long-time friend, clearly states that the applicant appeared to be open to the challenges of deployment, but when he returned from deployment, he was very distant. He made impulsive discussions, stopped caring about his appearance and was very paranoid. His love for life had been altered immensely. 18. The second letter of support, as provided by the applicant, dated 15 December 2014, from a VA staff psychologist, speaks to the applicant’s VA healthcare for his PTSD and that the applicant had requested this letter to aide him in his request for an upgrade of his characterization of service to fully honorable. The psychologist discusses the applicant’s symptoms, treatment history and duty as a gunner in Iraq. REFERENCES: 1. 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 the commission of a serious offense that could result in a punitive discharge. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. 2. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) prescribes eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the Army Reserve. Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment and includes a list of armed forces RE codes including Regular Army RE codes. RE 4 applies to persons separated from their last period of service with a non-waivable disqualification. That regulation further provides that RE codes may only be changed if they are determined to be administratively incorrect. 3. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities and reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The SPD code of JKK was the appropriate code for the applicant based upon the guidance provided in Army Regulation 635-5-1 for Soldiers separating under the provisions of AR 635-200, chapter 14-12c, . Additionally, the SPD/RE Code Cross Reference Table establishes RE code 4 as the proper RE code to assign to Soldiers for this reason. 4. 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. 5. 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; 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 contends his DD Form 214 should be corrected by changing his SPD code and RE code to reflect his fully honorable service without any lost time because his PTSD caused his unbecoming behavior as an Army Soldier. 2. The evidence of record shows the applicant's general, under honorable conditions characterization of service was upgraded to honorable by the ADRB based on the applicant's length of service, quality of service, and combat service. However, the ADRB also determined that the reason and authority for his separation were proper and equitable. He has not provided any new evidence to refute that decision. 3. The applicant's SPD code of JKK is based on the reason for his administrative separation. 4. The governing regulation provides that RE codes may only be changed if they are determined to be administratively incorrect. RE 4 is appropriate for Soldiers separated with SPD JKK. 5. The staff medical advisory opinion states the applicant’s SPD code is too harsh. It should be noted, however, that the code is based on the reason for separation, not the number of incidents that may have occurred in conjunction with the reason. The SPD code in this case would be the same whether there was one incident or dozens of incidents. The advisory opinion further states the RE code assigned is appropriate given the number and severity of the applicant's psychiatric diagnoses. 6. Based on guidance from the Office of the Undersecretary of Defense for Personnel and Readiness, boards are to give liberal consideration to Veterans petitioning for relief when the application for relief is based in whole or in part on PTSD, TBI or sexual trauma/harassment. 7. A review of the applicant’s records and his DD Form 214 failed to show any lost time. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170003132 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170003132 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2