IN THE CASE OF: BOARD DATE: 9 June 2016 DOCKET NUMBER: AR20150001318 BOARD VOTE: _________ _______ ________ 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: 9 June 2016 DOCKET NUMBER: AR20150001318 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. IN THE CASE OF BOARD DATE: 9 June 2016 DOCKET NUMBER: AR20150001318 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 an upgrade of his general discharge to an honorable discharge and a change of his narrative reason for separation. 2. The applicant states, in effect, the Department of Veterans Affairs (VA) diagnosed his condition and awarded him compensation for post-traumatic stress disorder (PTSD), which was incurred as a result of his father's death and his experiences during his Iraq combat deployment. 3. The applicant provides a copy of his VA Compensation and Pension (C&P) Examination Report. 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 the cases 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. 2. The applicant enlisted in the Regular Army, in pay grade E-2, on 26 February 2007. He held military occupational specialty 19D (Cavalry Scout). He served in Iraq from 1 September 2008 through 18 August 2009. 3. He received counseling on/for: * 8 August 2008 – failing bag and ruck sack inspection * 24 March 2009 – failing to obey a lawful order to remain at his appointed place of duty * 26 March 2009 – failing to comply with corrective training * 18 April 2009 – being late for a detail * 22 and 23 June 2009 – insubordinate conduct, willfully disobeying the lawful order of, and treating with contempt, a warrant officer, noncommissioned officer (NCO), or petty officer 4. He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, on/for: * 28 June 2009 – being disrespectful in language toward an NCO on or about 22 June 2009 and disobeying a lawful order on or about 23 June 2009; his punishment consisted of a reduction to pay grade E-1, a suspended forfeiture of $326.00 pay, and 14 days of extra duty and restriction; he did not appeal the punishment * 19 November 2009 – making a false statement with intent to deceive; his punishment consisted of a suspended forfeiture of $326.00 pay and 14 days of extra duty and restriction; he did not appeal the punishment 5. He received counseling on/for: * 24 November 2009 – duty performance * 2 December 2009 – failing to comply with height/weight standards * 9 December 2009 – professional growth * 9 January 2010 – running a stop sign and his subsequent arrest on an outstanding 2007 warrant * 11 January 2010 – failing physical training (PT) and being over weight * 12, 13, 14, and 29 January 2010 – driving violations, summons complaint due to a deferred violation sentence, arrest for an outstanding warrant for two prior street racing tickets, failing PT, and an off duty infraction with street racing 6. On 5 May 2010, the applicant’s company commander notified the applicant that he intended to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), paragraph 14-12b, for a pattern of misconduct. He stated the reasons for the proposed action were the applicant's numerous failures to report, false official statements, disrespect toward an NCO, failure to obey an order of an NCO, civil charges for a speed contest, failure to appeal, and speed exhibition. He recommended the applicant receive a general discharge and advised the applicant of his rights. 7. On 6 May 2010, the applicant acknowledged receipt of the proposed separation under Army Regulation 635-200, paragraph 14-12b. He also acknowledged he could receive a general discharge and the results of the issuance of such a discharge. He waived his right to counsel and elected not to submit a statement in his own behalf. 8. On 7 May 2010, the applicant's company and battalion commanders recommended approval of the applicant's general discharge. The battalion commander stated the applicant had no potential for useful service under the conditions of full mobilization. 9. On 25 May 2010, the separation authority approved the applicant’s discharge. 10. He was discharged accordingly, in pay grade E-1, on 18 June 2010. He was credited with completing 3 years, 3 months, and 23 days of net active service. His service was characterized as under honorable conditions, general. Item 28 (Narrative Reason for Separation) of his DD Form 214 contains the entry "Pattern of Misconduct." 11. On 23 August 2013, the Army Discharge Review Board denied his request for an upgrade of his discharge. 12. He provides a copy of his VA C&P Examination Record, dated 15 May 2015, in which the VA concluded his PTSD and depressive disorder both had their onset during military service. 13. In an advisory opinion, dated 2 May 2016, the Clinical Psychologist, Army Review Boards Agency (ARBA), reiterated the applicant's record of service and misconduct. The ARBA official stated: a. The applicant submitted an application to the ABCMR alleging that he was unjustly removed from military service for seeking behavioral health care and he was discharged approximately 2 1/2 weeks prior to his expiration of term of service (ETS). Based on available information, the VA diagnosed him with PTSD and depressive disorder on or about 21 March 2012, approximately 21 months following his discharge. b. On 15 May 2015, the VA conducted a C&P examination concluding that the applicant's PTSD and depressive disorder both had their onset during military service. Those behavioral health conditions were deemed to have caused occupational and social impairment in most areas of his functioning, such as work, school, family relations, judgment, thinking, and/or mood. c. During his time in the military on 9 March 2010, the applicant received a command-directed behavioral health evaluation for chapter 14-12b. The evaluating provider diagnosed the applicant with major depressive disorder and indicated he was unsure whether the applicant failed medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. The applicant was not psychiatrically cleared for administrative separation. The provider noted that 3 months of treatment was needed before the applicant was reassessed. d. A second command-directed behavioral health evaluation for chapter 14-12b was conducted on 29 April 2010, approximately 5 weeks earlier than recommended by behavioral health. The applicant was deemed fit for full duty and psychiatrically cleared for administrative separation. However, weapons restrictions were also indicated at the time and documentation did not sufficiently justify the reasoning for the change in status to psychiatrically cleared (e.g., no indication of improvement in symptoms, etc.). e. Taking into consideration the documents available for review at this time, the applicant's records reasonably support a depressive disorder existed during his military service. Having been placed on weapons restriction as a cavalry scout, it would be reasonable to conclude that his condition failed medical retention standards in accordance with Army Regulation 40-501. The available record at this time, however, does not reasonably support PTSD existed during military service. Medical records support negative screening for PTSD. That did not preclude the possibility that the applicant could have developed PTSD following discharge. 14. The advisory opinion was provided to the applicant on 2 May 2016 for acknowledgement/rebuttal. In his rebuttal, dated 2 May 2016, the applicant stated: a. His pattern of misconduct began prior to and during his deployment to Iraq. It may be noted that he did not receive any negative counseling while at his first duty station. His patterns of behavior were in direct response to his unit's handling of the death of his father figure. Multiple times he requested the opportunity to seek mental health care after his father's death in May 2008. His requests were repeatedly denied by the unit leadership from the team leader to company commander levels. He was told on numerous occasions that he was only seeking to go to mental health to "skirt out of a deployment" and to be deemed "un-deployable." He was also referred to as "a piece of sxxt Soldier" that was attempting to miss the upcoming deployment. That was not his intention. He did in fact deploy with his unit later that year. b. Due to constant harassment of what could be expected in the military, he began to act out against those NCOs directly in charge of him. He specifically remembers being told a heinous thing about his dead father by a junior NCO. Instead of arguing with the NCO he simply walked away. There were many other times such as that and it only served to exacerbate his behavior even further. c. While deployed, he attempted suicide and had ideations for about 3 to 4 months. While attempting to speak to the unit medical health chaplain or anyone who could help, he was again excoriated by both senior and junior NCOs within his chain of command. He was told that he was attempting to be sent home and that he was a worthless Soldier. Additionally, he was told he was the "unit bxxxh" since he was placed on weapons restriction due to the suicide attempt. He was continually denied mental health care outside of the suicide attempt. d. Upon return from deployment in August 2009 his unit was specifically and repeatedly told by their leadership to falsify their Post-Deployment Health Reassessments (PDHR) if they wished to remain in the Army. Therefore, his record PDHRs were answered incorrectly on purpose as not to raise any red flags or to be further excoriated by unit leadership. That further exacerbated his "screw this" attitude and resulted in even further problems. The help he attempted to receive was not given and was not viewed as even remotely necessary. e. His command-directed behavioral health evaluation was hastily performed on a whim. The unit leadership had previously decided to allow him to stay in the service with no further issues until his ETS. When he was sent for a mental health evaluation it was the first time he had ever been allowed to be seen by mental health care providers. He was not cleared for an administration separation at the time. Everything that had been building up until that point was brought forth; all the grief, anger, hatred, angst, and discontentment due to being refused care for so long. The mental health care providers stated that he needed more treatment before they would clear him for separation. f. A mere 5 weeks later he returned to behavioral health for another evaluation. At the time, he expressed to behavioral heath that he no longer desired to fight the unit's wish to separate him. He requested separation as soon as possible because he refused to miss the birth of his daughter. There was zero improvement in his condition and symptoms. He was separated on 18 June 2010. His ETS date would have been in July 2010. g. His administrative separation was done out of spite. He was separated for absolutely no reason at all, other than the simple fact that he was acting out because of the abuse and harassment of his unit due to seeking mental health care and treatment. Had he received the requested care and treatment he is positive that things could and would have happened differently. The death of his father and his combat tour weighed heavily on his body and mind and was too much to bear. h. He was diagnosed with PTSD in May 2015 after 5 years, he finally opened up to someone. He sought help from a private doctor and was advised to seek an official PTSD diagnosis from the VA for compensation purposes. The reason there are zero medical records prior to his ETS is because he was consistently and repeatedly denied a chance to speak with mental health to have a record created. He largely agrees with the ARBA psychologist and believes he should not have been allowed to reenlist due to placement on weapons restriction as a cavalry scout. It would be reasonable to conclude that his condition failed medical retention standards. In his opinion, his administrative separation, a mere 2 weeks before his actual ETS was unjust and should be corrected. 15. A review of his military records located in the integrated Personnel Electronic Records Management System and the Soldier Management System located on the U.S. Army Human Resources Command Integrated Web Service failed to reveal copies of the Behavioral Health Evaluation memoranda dated 9 March and 29 April 2010. REFERENCES: 1. Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. The regulation stated in: a. Chapter 14 – action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. An honorable discharge or a general discharge could be awarded by the separation authority if warranted by the member's overall record of service; however, a discharge under other than honorable conditions was normally considered appropriate for members separated under those provisions. b. Paragraph 3-7a – an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. 2. Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, release from active service, or control of the Active Army. It also established standardized policy for preparing and distributing the DD Form 214. In accordance with this regulation item 28 would list the reason for separation based on the regulatory or statutory authority. 3. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, set forth policies, responsibilities, and procedures that apply in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. Paragraph 2-1 (Standards of unfitness by reason of physical disability) of the regulation stated that the mere presence of impairment did not, of itself, justify a finding of unfitness because of physical disability. 4. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards and Service Board for Correction of Military/Naval Records to carefully considered the revised PTSD criteria, detailed medical consideration, and mitigating factors when taking actions on applications from former service members administratively discharged and who had 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. In these cases, PTSD was not recognized as a diagnosis at the time of service and, in many cases, diagnoses were not made until decades after service was completed. Quite often, however, the records of service members who served before PTSD was recognized, including those who served in the Vietnam theater, do not contain substantive information concerning medical conditions in either Service treatment records or personnel records. Liberal consideration would also be given in cases where civilian providers confer diagnoses of PTSD or PTSD-related conditions, when case records contained narratives that supported symptomatology at the time of service, or when any other evidence which could reasonably indicate PTSD or a PTSD-related disorder existed at the time of discharge which might had mitigated the misconduct that caused the under other than honorable condition characterization of service. DISCUSSION: 1. With respect to an upgrade of the applicant's discharge: a. The evidence shows he received over 16 negative counseling statements for various infractions during his period of active service. He was punished twice under Article 15 for misconduct resulting in a grade reduction. During a command-directed behavioral health evaluation he was diagnosed with major depressive disorder. At the time, the evaluating provider did not psychiatrically clear the applicant for an administrative separation. The evaluating provided indicated the applicant needed 3 months of treatment before being reassessed. b. A second evaluation found him fit and psychiatrically cleared him for administrative separation. His company commander initiated action to separate him for a pattern of misconduct with a general discharge. The applicant acknowledged receipt of the proposed separation action and indicated that he understood he could receive a general discharge and its effect. He waived his rights and elected not to submit a statement in his own behalf. The separation authority approved his discharge and he was discharged accordingly. c. His record is void of evidence showing he was diagnosed with PTSD during his period of active service. There is also insufficient evidence to support his contention that PTSD prevented him from satisfactorily completing his enlistment. Given his characterization of service was under honorable conditions, it appears his chain of command took mitigating circumstances into consideration. Discharges under the provisions of paragraph 14-12b typically results in an under other than honorable conditions characterization of service. d. His administrative discharge was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights. He was properly discharged in accordance with pertinent regulations with due process. His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel for an honorable discharge. Any current medical reasons and/or conditions are not sufficiently mitigating to warrant an upgrade of his general discharge. e. Current standards provide for liberal consideration in cases where civilian providers confer diagnoses of PTSD or PTSD-related conditions, when case records contained narratives that supported symptomatology at the time of service, or when any other evidence which could reasonably indicate PTSD or a PTSD-related disorder existed at the time of discharge which might have mitigated the misconduct. f. By regulation, a Soldier must be found unfit to reasonably perform the duties of his or her office, grade, rank, or rating because of physical disability in order to be considered for processing through the Army Physical Disability Evaluation System. There is insufficient evidence to conclude that the applicant qualified for a PTSD diagnosis and warranted referral into the Integrated Disability Evaluation System at the time of his discharge. 2. With respect to a change of the narrative reason for discharge: action was initiated and the separation authority approved his discharge under the provisions of Army Regulation 635-200, paragraph 14-12b, for a pattern of misconduct. The current entry in item 28 of his DD Form 214 is appropriate considering all of the facts and circumstances of his discharge. There is no evidence of error or injustice. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150001318 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150001318 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2