BOARD DATE: 4 May 2017 DOCKET NUMBER: AR20150016644 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 BOARD DATE: 4 May 2017 DOCKET NUMBER: AR20150016644 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: 4 May 2017 DOCKET NUMBER: AR20150016644 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, in effect, his bad conduct discharge be upgraded and his reason for separation be changed to medical. 2. The applicant states, in effect, his undiagnosed combat-related post-traumatic stress disorder (PTSD) was the catalyst for his misconduct. 3. The applicant provides a self-authored statement, numerous medical documents, character references, numerous awards and achievements, and his DD Form 214 (Certificate of Release or Discharge from Active Duty). 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 12 November 2003 and he served in Afghanistan from 23 February 2005 to 26 February 2006 and then in Iraq from 20 October 2006 to 20 January 2008 as a cable system installation/maintenance specialist. He was awarded the Combat Action Badge. 3. General Court-Martial Order Number 1 (Corrected Copy), issued by U.S. Army Intelligence Center of Excellence and Fort Huachuca, Fort Huachuca, AZ, dated 3 March 2010, shows he was convicted of: a. one specification of violating a lawful general regulation by failing to register a 12 gauge shotgun with the installation Provost Marshall; b. six specifications of possessing various Schedule I, II, and IV controlled substances with intent to distribute; and c. six specifications of wrongfully introducing some amount of a Schedule I, II, and IV controlled substance onto Fort Huachuca, an installation used by the Armed Forces. 4. The court-martial sentenced him to confinement for 24 months, reduction to the lowest grade, forfeiture of all pay and allowances, and a bad conduct discharge. Only so much of the sentence that provided for reduction to the lowest grade, forfeiture of all pay and allowances, confinement of 12 months, and a bad conduct discharge was approved and, except for the bad conduct discharge, ordered executed. 5. Article 71(c) having been complied with General Court-Martial Order Number 183, issued by Headquarters, U.S. Army Fires Center of Excellence and Fort Sill, Fort Sill, OK, on 8 July 2010, ordered the bad conduct discharge executed. 6. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged with a bad conduct discharge on 31 December 2010. He was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of court-martial. He completed 6 years, 4 months, and 3 days of creditable active service with the period 17 December 2009 to 2 October 2010 shown as lost time. 7. The applicant's record is void of any evidence showing he was diagnosed with PTSD during his military service. 8. He provides: a. A personal statement detailing his family history and the events leading up to his discharge. He states he was found in possession of various drugs as the result of a force protection search on 21 February 2009 at the Fort Huachuca, AZ gate. He later enrolled in and completed the Army Substance Abuse Program and did so because no one in his chain of command sought to provide him any type of rehabilitation assistance. On 17 December 2009, he pled guilty to reduced charges and was sentenced to a BCD and 24 months confinement. He served 12 months of his 24-month sentence before being released on 4 October 2010 due to good behavior. He contends that during his second deployment to Afghanistan he sought assistance from the Combat Stress Counselor but discontinued his visits because they were not helpful. He cites PTSD studies, which found that controlled substances are used by individuals to self-medicate. He contends that he has not repeated his mistake and he has had no further legal encounters. Finally, he lists his service and post-service accomplishments, to include academic achievements. b. Medical treatment records for the period 6-7 December 2007 which show that while deployed to Afghanistan he reported anxiety and dysphoric mood at being away from his family since the death of his grandmother 2 months ago, and his aunt prior to that. He also expressed concern that his parents might die without him being able to spend more time with them, and an irritable mood in response to his leadership not giving him time off to get back to California to be with them. After a follow up examination, the applicant was diagnosed with mood disorder due to general medical condition and placed on weapons restriction and buddy watch pending further evaluation and work up at the Bagram Combat Stress Center. c. Three character references attesting to his military leadership skills, community service work, academic achievements, and his personal growth. d. His VA Form 21-0960P-3 (Review PTSD Disability Benefits Questionnaire) showing the applicant has a diagnosis of PTSD and recurrent major depressive disorder. 9. An Army Review Boards Agency Clinical Psychologist rendered an advisory opinion in the processing of this case on 11 April 2017. The advisory official stated, in part: a. This opinion is based on the information provided by the Board and records available in the DOD electronic medical record (AHLTA). Based on a thorough review of available medical records, there is no evidence that the diagnosis of depression or PTSD existed during the period of misconduct. Although the applicant received treatment for bereavement while deployed, there is no evidence of continued symptomatology or that he did not meet medical retention standards throughout his period of service. b. Although the applicant received a diagnosis of PTSD in 2014, the VA conducts evaluations based on different standards and regulations. Furthermore, the presence of PTSD can be associated with the use of controlled substances to self-medicate, but is not associated with nor does it explain possessing controlled substances with the intent to distribute. This observation does not negate the applicant's deployment history, in-service behavioral health treatment, or post-service accomplishments; however, there is no basis for the applicant's contention that his discontinued visits with the Combat Stress Counselor led to legal issues or that his transgressions occurred due to an overlooked diagnosis of PTSD. 10. The applicant was provided with a copy of this advisory opinion to give him an opportunity to comment and/or submit a rebuttal. On 19 April 2017, the applicant submitted a letter explaining that he discontinued his mental health treatments on advice of his noncommissioned officer because the stigma could potentially have had an adverse effect on his career because PTSD was not fully acknowledged at the time. He contends that he was an upcoming Soldier, ready to adapt and change with the Army, not a Soldier intending to make a "dirty living." He provided his VA Rating decision assigning him a 100-percent evaluation for PTSD and a printout of his VA appointments and current medications. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 3 establishes policy and procedures for separating members with a dishonorable discharge or bad conduct discharge. It provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence must be ordered duly executed. b. 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. c. 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. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army physical disability evaluation system as required by law. In part, it states that a Soldier who is charged with offense(s) under the Uniform Code of Military of Justice (UCMJ) or who is under investigation for an offense chargeable under the UCMJ which could result in dismissal or a punitive discharge, may not be referred for or continue medical disability processing unless the investigation ends without charges or the charges are dismissed by the appropriate authority. 3. Court-martial convictions stand as adjudged or as modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 4. 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." 5. 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. 6. 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. 7. 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 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. 8. 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 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. 9. 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? 10. 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. 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. 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. In 2014 the Secretary of Defense directed DRBs and BCMRs to carefully consider the revised PTSD criteria and mitigating factors when taking action on applications from former service members administratively discharged UOTHC. The evidence of record confirms the applicant was not administratively discharged. He received a punitive discharge by sentence of a general court-martial. Consequently, the Defense Secretary's 2014 directive is not controlling in the applicant's case. 2. By regulation, once the applicant was under investigation for offenses punishable by a punitive discharge, he could not be referred for, or continue, medical disability processing. 3. The applicant's two deployments and award of the Combat Action Badge are acknowledged. His PTSD diagnosis is also acknowledged. The medical advisory official considered the facts and circumstances of this case and could not find a nexus between his PTSD and his misconduct. 4. His trial by a general court-martial was warranted by the gravity of the offenses charged, which included the possession of controlled substances with intent to distribute. As a result, he received a bad conduct discharge. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout. 5. By law, any redress by the ABCMR of the finality of a court-martial conviction is prohibited. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016644 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016644 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2