BOARD DATE: 18 April 2017 DOCKET NUMBER: AR20150017500 BOARD VOTE: ____x____ ___x_____ ___x_____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 18 April 2017 DOCKET NUMBER: AR20150017500 BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant's DD Form 214 showing he received an honorable discharge in the rank/grade of specialist/E-4 with the applicable date of rank and issuing him an Honorable Discharge Certificate. ____________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: 18 April 2017 DOCKET NUMBER: AR20150017500 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 his under honorable conditions (general) discharge be upgraded to an honorable discharge. He also requests restoration of his rank/grade to specialist (SPC)/E-4. 2. The applicant states he believes his record is incorrect because what he saw in Iraq was life changing. He did not know he had a problem until recently, when he was diagnosed with post-traumatic stress disorder (PTSD) and other serious mental problems. He contends war conditions caused him to make bad decisions. He was diagnosed with PTSD, which affected him mentally. He doesn't believe he was given a fair shot. 3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 16 July 1993 and a letter from the Department of Veterans Affairs (VA). 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 7 July 1989. He served in Southwest Asia in support of Operations Desert Shield and Desert Storm from 14 August 1990 to 10 April 1991. 3. On 12 May 1993, while serving in the rank of specialist (SPC)/E-4, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongful use of cocaine. The punishment consisted of reduction to the rank of private (PVT)/E-2, forfeiture of $456.00 per month for two months, 45 days of extra duty, and 45 days of restriction. 4. On 12 May 1993, the applicant's immediate commander submitted a Commander's Request for Psychiatric Evaluation, in which he indicated the applicant had twice tested positive for illegal drugs. 5. On an unknown date, the applicant's immediate commander informed him of his intent to separate him from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, for commissioned of a serious offense, with a general under honorable conditions discharge. The commander cited the applicant's wrongful use of cocaine as the reason for the proposed separation action. The applicant was also advised of his right to consult with legal counsel, submit statements in his own behalf, and waive his rights in writing. 6. On 17 June 1993, he consulted with legal counsel and he was advised of the basis for the contemplated separation action for misconduct-abuse of illegal drugs. He elected not to submit a statement in his own behalf. He acknowledged he understood he may expect to encounter substantial prejudice in civilian life if a general, under honorable conditions discharge was issued to him. He also acknowledged he understood that if he received a character of service of less than honorable, he may apply to the Army Discharge Review Board (ADRB) or this Board for an upgrade of his discharge; however, he realized that an act of consideration by either board did not imply his discharge would be upgraded. 7. On 25 June 1993, the applicant submitted a statement in which he essentially stated that problems with his wife and child were the reasons for his drug use. 8. On 6 July 1993, the appropriate separation authority approved the recommendation for separation under the provisions of Army Regulation 635-200, paragraph 14-12c(2), with service characterized as general under honorable conditions. 9. On 16 July 1993, he was discharged. His DD Form 214 shows he was discharged in the rank of PVT/E-2 with his service characterized as general under honorable conditions. 10. There is no evidence that indicates he applied to the ADRB for an upgrade of his discharge. 11. He provides a letter from the VA, dated 23 January 2015, which shows he is receiving service-connected disability compensation rated at 80 percent. 12. During the processing of this case, a medical advisory opinion was obtained from the Army Review Boards Agency's (ARBA) Psychiatrist. The advisory opinion states: a. Review of the VA electronic medical record (JLV) indicates that, as of 11 April 2017, the applicant had a total service connection of 60 percent, 30 percent of which is for PTSD. b. In his separation Report of Medical History, dated 25 May 1993, he did not endorse any psychiatric symptoms. In his DA Form 3822-R (Report of Mental Status Evaluation) the applicant was found to have a normal mental status examination. He was mentally able to understand the difference between right and wrong, he was mentally responsible and deemed able to participate in any administrative action deemed appropriate by command. He was diagnosed with cocaine abuse "a condition which does not warrant disposition through medical channels". It was recommended he be referred to the Alcohol and Drug Abuse Prevention and Control Program for further evaluation and treatment of his cocaine abuse. c. There is no documentation in his military personnel records of any symptoms of PTSD. The military record indicates that he met military medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness). d. Review of his military records indicates no symptoms of PTSD per se. The lack of documentation of PTSD symptoms in his military records does not necessarily indicate that he did not have PTSD while in the military. In the era of his service, PTSD was an infrequently recognized diagnosis. Consequently, the diagnosis often has to be inferred from the available documentation. Such is the situation in this case. It appears from reviewing the military record, that he was considered a good Soldier both prior to and during his deployment to SWA. This observation is supported by the fact he received a Combat Infantryman Badge for successfully engaging in active combat while in SWA. However, after returning from SWA, it appears he began using cocaine. This type of behavior is not uncommon in Soldiers who have developed PTSD as a result of combat who begin using substances and alcohol as a way to self-medicate their PTSD symptoms. e. In conclusion, based on the available documentation, it is the medical opinion of the ARBA's Psychiatrist that the applicant had a mitigating behavioral health condition for the offense which led to his discharge from the Army. He has been diagnosed with PTSD by the VA for which he is 30 percent service connected. This fact, in combination with the facts outlined in paragraph d. above, indicate that the applicant likely had undiagnosed PTSD while still on active duty. Because PTSD can be associated with the use of illicit drugs, such as cocaine, for self-medication, there is likely a nexus between his cocaine use and his PTSD. 13. The medical advisory opinion was provided to the applicant to allow him the opportunity to submit additional comments or a rebuttal. He did not respond. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. b. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate for a Soldier discharged under this chapter. 2. Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial. It states: a. A commander should use nonpunitive administrative measures to the fullest extent to further the efficiency of the command before resorting to NJP under the UCMJ. Use of NJP is proper in all cases involving minor offenses in which nonpunitive measures are considered inadequate or inappropriate. If it is clear that NJP will not be sufficient to meet the ends of justice, more stringent measures must be taken. Prompt action is essential for NJP to have the proper corrective effect. NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; to preserve a Soldier's record of service from unnecessary stigma by record of court-martial conviction; and to further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial. b. Paragraph 3-18 contains guidance on notification procedures and explanation of rights. It states the imposing commander will ensure that the Soldier is notified of the commander's intention to dispose of the matter under the provisions of Article 15. It further stipulates that the Soldier will be informed of the following: the right to remain silent, that he/she is not required to make any statement regarding the offense or offenses of which he/she is suspected, and that any statement made may be used against the Soldier in the Article 15 proceedings or in any other proceedings, including a trial by court-martial. It further states the Soldier will be informed of the right to counsel, to demand trial by court-martial, to fully present his/her case in the presence of the imposing commander, to call witnesses, present evidence, to request to be accompanied by a spokesperson, to request an open hearing, and to examine available evidence. c. Paragraph 3-28 provides guidance for setting aside the punishment imposed by NJP and restoration of rights, property and privileges. The setting aside and restoration is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges or property affected by the portion of the punishment set aside are restore. NJP is wholly set aside when the commander who imposed the punishment, a successor-in-command or a superior authority sets aside all punishment imposed upon an individual under Article 15. The basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice. Clear injustice means that there exists an unwaived legal or factual error which clearly and affirmatively injured the substantial rights of the Soldier. An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier. Clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have an adverse effect on the retention or promotion potential of the Soldier. The power to set aside an executed punishment and to mitigate a reduction in grade to a forfeiture of pay, absent unusual circumstances, will be exercised only within four months after the punishment has been executed. When a commander sets aside any portion of the punishment after four months from the date the punishment has been executed, a detailed addendum of the unusual circumstances found to exist will be attached to the form containing the set aside action. 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 Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (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 the Department of Defense acknowledges that some Soldiers who were administratively discharged under other than honorable conditions 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 and Service Boards for Correction of Military/Naval Records to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. DISCUSSION: 1. The evidence of record shows the applicant tested positive for cocaine use and as a result, NJP was imposed against him. The punishment included reduction from the rank of SPC/E-4 to the rank of PVT/E-2. The evidence also shows he had tested positive for cocaine on two occasions. Based on the applicant's serious offense(s), his commander initiated separation action against him. 2. His separation under the provisions of Army Regulation 635-200, paragraph 14-12c, for use of illegal drugs was administratively correct and in conformance with applicable laws and regulations in effect at the time. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. Additionally, his discharge was appropriate because by using illegal drugs, the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel. Therefore, the general under honorable conditions characterization of service appears to be fair and proper. 3. At the time of the applicant's discharge, PTSD was largely unrecognized by the medical community and DOD. However, both the medical community and DOD now have a more thorough understanding of PTSD and its potential to serve as a causative factor in a Soldier's misconduct when the condition is not diagnosed and treated in a timely fashion. Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible re-characterization of their overall service. 4. The available documentation reasonably supports the existence of PTSD at the time of his offenses. However, this should be carefully weighed against the severity of his misconduct. 5. In reference to the restoration of his rank, his reduction was accomplished in accordance with applicable law and regulation. His behavioral health may have contributed to his misconduct; however; the evidence shows he underwent a mental status evaluation and he was found mentally responsible and able to understand the difference between right and wrong. Therefore, the existence of a mental health condition does not automatically negate the misconduct or the punishment. 6. His record does not contain evidence showing his reductions in rank occurred as a result of an administrative error or that he was improperly or unfairly reduced in rank. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017500 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017500 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2