IN THE CASE OF: BOARD DATE: 2 August 2016 DOCKET NUMBER: AR20150006560 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: 2 August 2016 DOCKET NUMBER: AR20150006560 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: 2 August 2016 DOCKET NUMBER: AR20150006560 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 honorable. 2. The applicant states he has post-traumatic stress disorder (PTSD) and a traumatic brain injury (TBI) that were incurred during his tours to Iraq. 3. The applicant provides: * self-authored letter, dated 18 March 2015 * Department of Veterans Affairs (VA) documentation * service medical records * correspondence between his aunt and Members of Congress * DA Forms 2823 (Sworn Statement) * memoranda * undated letter from a major * request for legal action * counseling form * reassignment orders, dated 26 March 2008 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. The applicant enlisted in the Regular Army on 16 May 2002 for a period of 3 years. He completed his training and was awarded military occupational specialty 19D (cavalry scout). 3. A DD Form 616 (Report of Return Absentee), dated 13 October 2004, shows he was absent without leave (AWOL) from 22 October 2002 to 12 October 2004 (total of 721 days). 4. His records contain an undated memorandum of reprimand showing he was reprimanded for: * the offense of desertion for his absence from his unit from November 2003 to October 2004 * dereliction of his duty as a Soldier and abandoning his fellow comrades prior to deploying with them to Iraq 5. He served in Iraq from 27 March 2005 to 30 December 2005. 6. The available records do not contain a reenlistment contract. 7. He deployed to Iraq again on 14 January 2007. 8. In May 2007, while in Iraq, nonjudicial punishment (NJP) was imposed against him for: * leaving his appointed place of duty without authority * being disrespectful in deportment towards a noncommissioned officer * being derelict in the performance of his duties 9. On 22 September 2007, he underwent a mental status evaluation and was found to be mentally responsible. He was psychiatrically cleared for any administrative action deemed appropriate by the chain of command. 10. On 9 October 2007, he underwent a physical separation examination and was found qualified for separation with a physical profile of 111111. Item 34 (Lower Extremities) of his DD Form 2808 (Report of Medical Examination) shows he was rated abnormal with minor swelling noted in his knees. 11. On 6 January 2008, he was notified of his pending separation action for misconduct (commission of a serious offense) under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c. The unit commander cited the following reasons for his recommendation for separation: * disrespect to a commissioned officer on 11 August 2007 * leaving appointed place of duty on 15 December 2006 * disrespect to a noncommissioned officer on 15 December 2006 * dereliction of duty on 15 December 2006 * desertion for 333 days from 21 November 2003 until October 2004 12. On 8 January 2008, he consulted with counsel. He acknowledged that he might encounter substantial prejudice in civilian life if he were issued a general discharge. He elected not to submit a statement in his own behalf. 13. On 19 February 2008, the separation authority approved the recommendation for discharge and directed the issuance of a general discharge. 14. He departed Iraq on 29 February 2008. 15. He was discharged under honorable conditions on 2 April 2008 for misconduct (serious offense) under the provisions of Army Regulation 635-200, paragraph 14-12c. He completed a total of 5 years, 10 months, and 17 days of creditable active service. He did not receive the Combat Action Badge. 16. There is no evidence of record showing he was diagnosed with PTSD or a TBI prior to his discharge. 17. On 2 September 2009, the Army Discharge Review Board denied his request for an honorable discharge. 18. He provided a letter from the Department of Veterans Affairs, dated 20 January 2016, showing the following service-connected disabilities: * migraine headaches without aura – 50 percent * PTSD – 50 percent * lumbar strain – 10 percent * post-traumatic degenerative joint disease, right knee – 10 percent * post-traumatic degenerative joint disease, left knee – 10 percent * scar, left knee, status post meniscectomy – 0 percent * leg length discrepancy, left lower extremity – 0 percent 19. He provided a self-authored letter, dated 18 March 2015, which states: a. He served for nearly 6 years in the Army and completed several tours in Iraq. He followed military standards and accepted all punishment for his actions under military law. In March 2005, he was sent to join his unit in Iraq. He advised his chain of command of his medical conditions (torn ligament, patellofemoral dysfunction). He received orders for another tour in Iraq in November 2006. He did not receive any treatment or surgery to correct his patella. His aunt wrote several letters to Members of Congress on his behalf. He has a medical condition and the only alternative is surgery. He was targeted by his unit and he filed several discrimination complaints against his unit. b. He had several doctor appointments in Iraq though he never received the care he needed. He filed another discrimination complaint to the military. His unit was in fire fights with insurgents in Iraq. His medical condition endangered other Soldiers’ lives. He could not run without his knee dislocating. He felt like he was being set up to die or get hurt. c. In August 2007, he threw his water bottle at a can and was asked to pick it up by a major in the U.S. Marine Corps and he complied. He answered the major's questions and left to go to his unit. Later that day, he was given NJP under the provisions of Article 15 of the Uniform Code of Military Justice for lying to the major. He did not sign the NJP because he did not agree with it. d. He wants his discharge upgraded to honorable. His general discharge was a form of retaliation by his unit. He has several medical conditions he received from his combat service the military. His medical needs were not taken care of during his period of active service. He was diagnosed with PTSD and TBI along with other physical ailments. He received several awards including the Army Good Conduct Medal. He served and fought for his country. He should have been treated better by his chain of command. 20. In the processing of this case, an advisory opinion was obtained from the Chief Psychiatrist, Winn Army Community Hospital, Fort Stewart, Georgia. The opinion stated: a. After a detailed review of the medical records provided, the psychiatrist concluded there is no nexus between the applicant's PTSD and TBI and the misconduct that led to his discharge. b. As part of the applicant's application, he explains the reason for his request is based solely on his physical condition. He describes his medical condition while deployed to Iraq. His explanation for going absent without leave was due to his belief his medical needs were not addressed. Documents explained the context of his misconduct and the recommended legal action. He also included VA documentation showing he was rated at 50 percent for PTSD. c. There are no behavioral health encounters while he was on active duty. While the VA has determined he has significant behavioral health symptoms, currently there is no evidence he experienced behavior health symptoms while on active duty. It is not uncommon for individuals to seek treatment or be diagnosed years after separation from the military. Also, the VA examination has a different emphasis from the military's evaluations. The VA evaluates the impact on global functioning, while the military evaluation is specific to the Soldier's ability to complete military occupational requirements. d. Based on the above history, it appears the applicant's discharge was in the context of misconduct. There is no information provided that suggests there existed a significant behavioral health condition that contributed to his misconduct while on active duty. 21. A copy of the advisory opinion was forwarded to the applicant for comment and/or rebuttal. He did not respond. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense. The issuance of a discharge under other than honorable conditions is normally considered appropriate. b. 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. 2. Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition that was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. 3. Army Regulation 40-501 (Standards of Medical Fitness), chapter 7 (Physical Profiling), provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted. Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): * P – physical capacity or stamina * U – upper extremities * L – lower extremities * H – hearing and ears * E – eyes * S – psychiatric 4. A physical profile rating of "1" under all factors indicates an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment. 5. 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 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 nosologic classification scheme. Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice. 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." 6. 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. 7. The fifth edition of the DSM 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 criterion assesses functioning, and the eighth criterion clarifies symptoms as not attributable to a substance or co-occurring medical condition. a. Criterion A – Stressor: The person was exposed to: death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence, as follows (one required): (1) direct exposure; (2) witnessing, in person; (3) indirectly, by learning that a close relative or close friend was exposed to trauma. If the event involved actual or threatened death, it must have been violent or accidental; or (4) repeated or extreme indirect exposure to aversive details of the event(s), usually in the course of professional duties (e.g., first responders collecting body parts, professionals repeatedly exposed to details of child abuse). This does not include indirect non-professional exposure through electronic media, television, movies, or pictures. b. Criterion B – Intrusion Symptoms: The traumatic event is persistently re-experienced in the following way(s) (one required): (1) recurrent, involuntary, and intrusive memories; (2) traumatic nightmares; (3) dissociative reactions (e.g., flashbacks) which may occur on a continuum from brief episodes to complete loss of consciousness; (4) intense or prolonged distress after exposure to traumatic reminders; or (5) marked physiologic reactivity after exposure to trauma-related stimuli. c. Criterion C – Avoidance: Persistent effortful avoidance of distressing trauma-related stimuli after the event (one required): (1) trauma-related thoughts or feelings or (2) trauma-related external reminders (e.g., people, places, conversations, activities, objects, or situations). d. Criterion D – Negative Alterations in Cognitions and Mood: Negative alterations in cognitions and mood that began or worsened after the traumatic event (two required): (1) inability to recall key features of the traumatic event (usually dissociative amnesia; not due to head injury, alcohol, or drugs); (2) persistent (and often distorted) negative beliefs and expectations about oneself or the world (e.g., "I am bad," "The world is completely dangerous"); (3) persistent distorted blame of self or others for causing the traumatic event or for resulting consequences; (4) persistent negative trauma-related emotions (e.g., fear, horror, anger, guilt, or shame); (5) markedly diminished interest in (pre-traumatic) significant activities, feeling alienated from others (e.g., detachment or estrangement); and (6) constricted affect, persistent inability to experience positive emotions. e. Criterion E – Alterations in Arousal and Reactivity: Trauma-related alterations in arousal and reactivity that began or worsened after the traumatic event (two required): (1) irritable or aggressive behavior, (2) self-destructive or reckless behavior, (3) hypervigilance, (4) exaggerated startle response, (5) problems in concentration, and (6) sleep disturbance. f. Criterion F – Duration: Persistence of symptoms (in Criteria B, C, D, and E) for more than 1 month. g. Criterion G – Functional Significance: Significant symptom-related distress or functional impairment (e.g., social, occupational). h. Criterion H – Exclusion: Disturbance is not due to medication, substance use, or other illness. 8. 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, the Department of Defense (DOD) acknowledges that some Soldiers who were administratively discharged under other than honorable conditions (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 Soldiers' 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 a 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. 9. On 3 September 2014 in view of the foregoing information, 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 applicants' service. 10. 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? 11. Although 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 records 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. 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 UOTHC. 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. BCM/NRs 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. 12. The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ. The maximum punishment for AWOL is a punitive discharge (dishonorable discharge or bad conduct discharge), confinement for 12 to 18 months, reduction to grade E-1, and a total forfeiture of all pay and allowances. DISCUSSION: 1. Although the applicant contends he incurred PTSD and a TBI while serving two tours in Iraq, there is no evidence of record and he provided no evidence showing he was diagnosed with PTSD or a TBI prior to his discharge. There is no evidence of any behavioral health encounters while he was serving on active duty. It is noted that his extensive period of AWOL occurred prior to his first deployment to Iraq. In fact, the commander’s memorandum of reprimand that admonished him pointed out he had knowingly deserted his unit prior to its deployment. 2. His contention that he was rated 50-percent disabled for PTSD by the VA is noted. He served in Iraq during two separate deployments. Post service the VA rates veterans and awards compensation based on a veteran’s social or industrial inability to adapt after military service. The rating decision by the VA does not demonstrate an error or injustice on the part of the Army. The VA, operating under its own policies and regulations, assigns service-connected disability ratings based on specific criteria. 3. His contention that his general discharge was a form of retaliation by his unit was noted. However, he did not provide evidence to support his contention. A discharge under other than honorable conditions is normally appropriate for the authority and reason for his discharge (chapter 14 – misconduct). The fact that he received a general discharge under honorable conditions indicates his commander carefully considered his entire record of service to include his deployment history. The commander had the option to prefer court-martial charges for the applicant’s AWOL was in excess of 30 days. A court-martial is empowered to direct a punitive discharge (dishonorable or bad conduct discharge) which would have precluded receipt of certain VA benefits. Based on the decision of the separation authority, it is evident he exhibited leniency. 4. His administrative separation for misconduct was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. A medical doctor reviewed his record and determined there was no nexus between PTSD and TBI that could explain his misconduct. 5. His record of service included one NJP for numerous disciplinary infractions and a significant amount of lost time. His conduct and duty performance did not conform to established standards of conduct. As a result, his record of service did not and now does not meet the regulatory criteria for an honorable discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150006560 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150006560 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2