IN THE CASE OF: BOARD DATE: 12 July 2016 DOCKET NUMBER: AR20150002469 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: 12 July 2016 DOCKET NUMBER: AR20150002469 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 to amend the decision of the ABCMR set forth in Docket Number AR20130021602 on 5 August 2014. __________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: 12 July 2016 DOCKET NUMBER: AR20150002469 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 reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20130021602 on 5 August 2014. In effect, he requests his under other than honorable conditions (UOTHC) discharge be upgraded to an under honorable conditions (general) discharge. 2. The applicant states he is requesting reconsideration of his case based upon new evidence not previously available for review by the Board. He enclosed a Department of Veterans Affairs (VA) decision regarding his post-traumatic stress disorder (PTSD) diagnosis, which was grated at 70 percent based upon his service prior to the incident on 23 June 2011. It shows he was misdiagnosed while in the Army during 2011. He served in the Army for approximately 20 years with a spotless record, until he had a PTSD-related mental break. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 24 September 2012 * VA Rating Decision, dated 11 January 2014 * 28 pages of VA progress notes, dated between October 2012 and October 2014 CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records that were summarized by the ABCMR in the previous consideration of the applicant's case, in Docket Number AR20130021602, on 5 August 2014. 2. The applicant provides a VA Rating Decision and 28 pages of progress notes as new evidence. The Board did not previously consider these documents; therefore, they now warrant consideration by the Board. 3. Following prior service in the U.S. Air Force and Army National Guard (ARNG), the applicant enlisted in the U.S. Army Reserve (USAR) on 10 July 1999. 4. A DD Form 214 for the period ending 31 October 2007, shows the applicant served in Kuwait and Iraq from 28 September 2006 to 3 March 2007. 5. Orders 11-037-00106, issued by the 330th Medical Brigade on 6 February 2011, ordered the applicant to active duty as a member of his USAR troop program unit. He was mobilized in support of Operation New Dawn and ordered to report to Fort Sheridan, Illinois, on 28 February 2011. The period of active duty was 400 days. 6. On 31 January 2012, court-martial charges were preferred against the applicant for the following violations of the Uniform Code of Military Justice (UCMJ): * Article 115, feigning suicidal ideation for the purpose of avoiding an equal opportunity investigation * Article 128, by kicking his boot off and causing it to strike another member in the chest * Article 133, by claiming a false allergy to sedatives administered by the hospital staff * three specifications of Article 93, by making deliberate and repeated comments of a degrading nature, lewd acts and gestures * Article 107, by wrongfully counseling a Soldier with intent to deceive by writing passing scores on his Army Physical Fitness Test scorecard * Article 134, by fraternizing with an enlisted person 7. On 6 February 2012, the applicant submitted his resignation for the good of the service in lieu of general court-martial. He acknowledged: * he had not been subject to coercion with respect to his resignation * he had been fully advised and counseled in this matter * he had been afforded an opportunity to present matters in explanation, mitigation, or defense of his case * he could receive an UOTHC discharge 8. On 13 February 2012, the Commander, 18th Airborne Corps and Fort Bragg, North Carolina, reviewed, recommended approval, and forwarded the applicant's request for resignation in lieu of general court-martial to the Deputy Assistant Secretary of the Army (DASA) (Review Boards (RB)) 9. On 19 July 2012, the Acting DASA (RB) reviewed the applicant's resignation for the good of the service in lieu of a general court-martial. His resignation was accepted. The Secretary directed his discharge with an UOTHC characterization of service. 10. On 29 August 2012, the DASA (RB) reviewed the request for a grade determination pertaining to the applicant. The Secretary directed that at the time of eligibility and application for retirement, the applicant would be placed on the Retired List in the rank/grade of captain/O-3E. 11. The applicant was discharged on 24 September 2012, under the authority of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraphs 4-2B and 4-24A(1), by reason of resignation in lieu of trail by court-martial for unacceptable conduct. His service was characterized as UOTHC. 12. He was issued a DD Form 215 (Correction to DD Form 214) that shows he served in Iraq from 2 April 2012 to 30 June 2012. It also shows prior active duty service from 28 February 2011 through 2 April 2012. 13. There are no available records indicating behavioral health issues prior to the applicant's entry on active duty in February 2011. 14. The applicant provides a 4-page letter from a clinical psychologist, dated 28 January 2012, which shows: a. The applicant underwent a psychometric assessment resulting in the following findings: * Beck anxiety Inventory: Score of 45. Scores greater than 36 suggest persistent and excessively high levels of anxiety impacting all areas of daily functioning, both mentally and physically * Beck Depression Inventory: Score of 45. This is indicative of extreme clinical depression and need for immediate and intensive psychological intervention * "PCL-M:" Score of 68. Scores greater than 50 are suggestive of a formal diagnosis of PTSD b. The applicant's diagnosis was based on a 3-hour intensive clinical interview and the psychometric assessment summarized above. * AXIS I: PTSD, chronic and severe; 309.81. * AXIS II: No diagnosis * AXIS III: chronic, intractable knee and back pain; three fractured cervical vertebrae left meniscal tear and lateral dislocation of left patella (S/P2 surgical knee repairs), and bilateral tinnitus * AXIS IV: Psychosocial and environmental problems. Trust issues with primary support group; occupational problems with access to adequate healthcare services; problems with interactions with legal system * AXIS V: Global assessment of functioning difficult to assess. Currently 50; serious symptoms in social and occupational functioning c. Based on the findings of the clinical interview, comprehensive history, and a brief psychometric assessment, it was evident the applicant suffered from chronic and severe PTSD and a major depressive disorder, severe and recurrent, with suicidal ideation. He demonstrated a large number of psychological injuries sustained within the wartime theater and precipitated by multiple catastrophic life events, all of which occurred in the line of duty. The psychologist recommended immediate and intensive psychological treatment in the surrounding area of his home of record. Concern remained about the continued exposure to threats of Uniform Code of Military Justice (UCMJ) action that will severely exacerbate his psychological conditions. The psychologist also recommended that when accounting for the applicant's three overseas deployments to wartime theaters and his notable and excellent performance in both command and clinical nursing positions for a duration of 20 years of valiant military service, that he should be granted no less than an honorable discharge. 15. The applicant provides 28 pages of VA progress notes, dated between October 2012 and October 2013, which document his VA mental health appointments and treatment. These documents, in effect, describe his alcohol abuse, nightmares, and events he experienced while deployed. 16. The applicant provides two letters from a VA and Veteran Center physician and psychologist, dated 17 June and 18 June 2016. These letters state: * the PTSD symptoms experienced by the applicant likely predated his discharge from the Army though he may not have sought treatment until after his discharge * he was exposed to multiple close life threatening incidents via improvised explosive device blasts and small arms fire, especially on his first two tours * he continues to experience significant PTSD based symptoms and dysfunctions and he continues to be an active participant in counseling 17. In connection with the processing of this case, an advisory opinion was obtained on 9 June 2016, from the Chief, Behavioral Health Division, Office of the Surgeon General (OTSG), Headquarters, Department of the Army. The medical advisory opinion states: a. The applicant entered the USAR in December 2008. He most recently entered active duly on 03 April 2012 and was discharged UOTHC on 24 September 2012, in accordance with Army Regulation 600-8-24, paragraph 4-28 and paragraph 4·24A (1) (Unacceptable Conduct). He was deployed to Kuwait for six months in 2003 and Iraq in 2006-2007. In February 2011, he was mobilized to Iraq in February 2011 and returned in July 2011 and was probably discharged in January 2012 prior to being reactivated in April 2012. b. In February 2015, the applicant requested the Board reconsider their 2014 denial of his request for a discharge upgrade. The OTSG was asked to determine if there is a nexus between the diagnosis of PTSD and the misconduct that caused the applicant's discharge. This opinion was based on the information provided by the Board and records available in the Department of Defense (DoD) electronic medical record (AHLTA). c. The applicant's March 2007 post-deployment screening revealed no behavioral health (BH) symptoms or diagnoses. The next BH encounter occurred in theater on 23 June 2011, when he presented with suicidal ideation precipitated by accusations of sexual harassment and his commander's refusal to send him home. He was diagnosed with adjustment disorder with disturbance of emotions and conduct and air-evacuated to Landstuhl, Germany, in physical restraints, due to his violent behavior. In July 2011, he was transferred to the Warrior Transition Unit (WTU) at Fort Bragg, North Carolina, where, during his BH intake evaluation, he denied any psychiatric symptoms and requested to be released from active duty (REFRAD). d. The applicant first mentioned PTSD symptoms later on 11 July 2011, when he was told he was going back to Iraq. He requested a fit for duty evaluation and on 18 July 2011, he was found psychologically fit for duty, including deployment. On 21 July 2011, he was deemed non-deployable because of his potential for violent behavior. BH providers who saw him while he was in the WTU are consistent in observing likely symptom exaggeration and maladaptive personality traits. Also of note is the fact that he never engaged in ongoing BH treatment as prescribed and was seen only as a walk-in or command referral. e. The applicant was released from the WTU on 13 September 2011. When his new commander recommended he visit BH on 21 September 2011, after telling a friend his plan to drive his motorcycle off a bridge and make it look like an accident, he was placed on high-risk status with Axis I: Diagnosis Deferred and Axis II: Cluster B traits. His next and final BH encounter was on 24 January 2012, when escorted to BH by his attorney after learning he would face court-martial charges. f. The information provided in the case includes reference to a 28 January 2012 letter from a clinical psychologist that confirms a diagnosis of PTSD but was not included in the file. VA records indicate he was seen for an intake evaluation in October 2013, diagnosed with PTSD, hospitalized on 4 November 2013, and discharged three days later with a diagnosis of depression with suicidal ideation. PTSD diagnosis was ruled out. Hospital records include frequent observations of entitled behavior, such as demanding a Compensation & Pension (C&P) examination immediately upon discharge so he would not have to take additional time off work. The applicant refused follow-up therapy at the VA but did continue with medication management, a service not available at the Vet Center where he received individual counseling from October 2012 to September 2014. g. In January 2014, the VA granted service connection for PTSD and major depressive disorder with alcohol dependence with a rating of 70 percent effective 15 October 2012. h. The preponderance of evidence suggests that the applicant did not meet criteria for PTSD during his military service and that his BH symptoms were related to situational stressors, specifically the accusation of sexual harassment and the subsequent decision by senior commanders to press court-martial charges. Therefore, there is no finding of a connection between PTSD and any other BH disorder that might mitigate the alleged misconduct that precipitated his separation. 18. The advisory opinion was forwarded to the applicant on 11 June 2016, for comment and/or rebuttal. He replied and stated: a. The advisory opinion incorrectly states that he was "probably" discharged in January 2012 prior to being reactivated in April 2012. In actuality, he was discharged from a mobilized reserve status in April of 2012 and issued active duty orders effective the day after the reserve discharge orders. b. He has enclosed three different letters from psychologists and a staff physician. One evaluation was conducted while he was stationed at Fort Bragg, which clearly shows the issues that he had several years prior. He did not seek help for his PTSD issues for fear of being discharged from the Army. He has been in constant therapy since his discharge. REFERENCES: 1. Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes the officer transfers from active duty to the Reserve Component (RC) and discharge functions for all officers on active duty for 30 days or more. a. Paragraph 4-2 provides reasons for elimination. Elimination action may be or will be initiated for misconduct, moral or professional dereliction. b. Paragraph 4-3 provides that an officer referred or recommended for elimination under this chapter who does not meet medical retention standards will be processed through both the provisions of this regulation and through the medical evaluation board/physical evaluation board (MEB/PEB) process c. Paragraph 4-24 provides that an officer identified for elimination may, at any time during or prior to the final action in the elimination case, elect to submit a resignation in lieu of elimination. When an officer submits a resignation in lieu of elimination, the officer waives the right to a hearing before a Board of Inquiry, and the case will be processed without convening a Board of Inquiry. 2. PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster. The Diagnostic and Statistical Manual of Mental Disorders (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. From an 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." 3. 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. 4. The DSM fifth revision (DSM-5) 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 assesses functioning; and the eighth criterion clarifies symptoms as not attributable to a substance or co-occurring medical condition. 5. 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, 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 also acknowledged that in some cases this undiagnosed condition of PTSD may have been a mitigating factor in the Soldier's 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 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. 6. In view of the foregoing, 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, 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 (emphasis added). 7. 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? 8. Although the 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 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 UOTHC characterization of service (emphasis added). Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of UOTHC (emphasis added). 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. 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. DISCUSSION: 1. The applicant's request for an upgrade of his under other than honorable conditions discharge was carefully considered. 2. The applicant contends he began having symptoms of PTSD after his second deployment but did not seek help for fear of being discharged. The veracity of his claim that he was exposed to combat is not in question. The evidence shows he served three tours of duty in Iraq and Kuwait; however, the advisory opinion and the available evidence suggests he did not meet the criteria for PTSD during his military service and his BH symptoms were related to situational stressors. 3. The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time. There is no indication of procedural errors that would have jeopardized his rights. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 4. The applicant has not provided evidence that shows the Army erred in the processing of his discharge. The Board starts its consideration with a presumption of regularity that what the Army did was correct. The burden of proving otherwise is the responsibility of the applicant. 5. Based on the applicant's multiple violations of the UCMJ that resulted in court-martial charges, and in view of the fact that he voluntarily submitted his resignation in lieu of elimination, his record of service during the period of service under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, in the absence of evidence to the contrary, it is presumed the Army was correct in separating him. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150002469 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150002469 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2