IN THE CASE OF: BOARD DATE: 5 January 2017 DOCKET NUMBER: AR20150017997 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: 5 January 2017 DOCKET NUMBER: AR20150017997 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: 5 January 2017 DOCKET NUMBER: AR20150017997 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 upgrade of his under honorable conditions discharge and correction of his records to show he was diagnosed with post-traumatic stress disorder (PTSD), as well as bipolar disorder, and placed on the Permanent Disability Retired List. 2. The applicant states he enlisted in the Regular Army (RA) on 27 July 2001. He deployed overseas three times in support of Operation Joint Endeavor and Operation Iraqi Freedom in 2002, 2004, and 2007. He was promoted to staff sergeant (SSG)/pay grade E-6 on 1 August 2005. a. While serving in Alaska, a chaplain told him that he had combat stress and mood swings. During his last deployment, a chaplain told the applicant's commander that he had PTSD. b. His expiration term of service was 4 October 2007; however, the Army's "Stop Loss" policy precluded his separation. He was a young noncommissioned officer (NCO) and his situation was difficult and stressful. c. He states that his behavior clearly showed signs of PTSD. When he got into trouble, he asked for help and a rehabilitative transfer. He was told he did not need help and that it would hinder his career. He adds, "I was told on [sic] my discharge or retention board that [I] was too incompetent and mentally unstable to progress. If I would have received counseling and help as asked for at the time, then my diagnoses could have been caught and I would have been able to sustain until the boards started recognizing PTSD as a medical retirement." He adds the separation board took precedence over his Medical Evaluation Board. d. After he was discharged, things got worse. He experienced insomnia, nightmares, flashbacks, paranoia, job losses, and several incidents with law enforcement. He has been a resident of a behavioral health (BH) center in Alexandria, VA. The Department of Veterans Affairs (VA) diagnosed him with PTSD and bipolar disorder several years after he was discharged from the Army. He concludes that the Army did not consider his PTSD when he was discharged. 3. The applicant provides: * three self-authored letters (summarized above) * DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) * SSG (E-6) promotion order * DD Form 214 (Certificate of Release or Discharge from Active Duty) * VA medical records and letters CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the RA on 27 July 2001 for a period of 3 years. He was awarded military occupational specialty 74D (Chemical Operations Specialist). He reenlisted in the RA on 5 October 2003 for a period of 4 years. 2. He served in Qatar from 25 January to 26 November 2003 and in Kuwait from 27 December 2004 to 22 November 2005. He was promoted to SSG (E-6) on 1 August 2005. 3. On 11 December 2006, he accepted nonjudicial punishment (NJP) for wrongfully carrying a loaded firearm in his vehicle at Fort Polk, LA. He was reduced to sergeant/pay grade E-5. 4. He deployed to Kuwait on 4 June 2007. 5. On 20 July 2007, a commander's inquiry was conducted after the applicant was removed from his gun truck for allegedly falling asleep and then threatening the truck commander with his life after he was told to wake up and stay alert. a. The findings were based on sworn statements from a specialist/pay grade E-4, three NCO's, and a commissioned officer. b. The commander recommended that the applicant not be authorized to possess a weapon or ammunition and that he receive punishment under the Uniform Code of Military Justice (UCMJ). 6. On 5 August 2007, his commander issued him a letter of concern. It shows, in June 2007, the applicant had altercations with NCO's on three occasions, showing a lack of discipline and failure to obey lawful orders. The last incident resulted in a verbal altercation wherein he threatened the NCO with physical violence. The commander advised him the letter of concern was imposed as an administrative measure and not as punishment pursuant to the UCMJ. 7. On 29 August 2007, he accepted NJP for wrongfully communicating a threat to do violence to an NCO and being derelict in the performance of his duties by negligently failing to stay awake while pulling rear security while conducting a sustainment mission. He was reduced to specialist/pay grade E-4. 8. On 15 November 2007, the applicant was evaluated by a Medical Service Corps captain, a psychologist at the Bayne-Jones Army Community Hospital, Fort Polk, LA. The psychologist determined the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings. The applicant was psychiatrically cleared for any administrative action deemed appropriate by command. 9. On 11 February 2008, the applicant was notified by his commander that action was being initiated to separate him under the provisions of (UP) Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 14, for misconduct based on commission of a serious offense with an under other than honorable conditions (UOTHC) character of service. a. The reasons for the proposed action were the applicant wrongfully tried to enter Fort Polk with a loaded weapon on 26 August 2006 and he wrongfully communicated a threat to an NCO on 17 July 2007. The commander advised the applicant of his right to: * consult with counsel * request a hearing before an administrative separation board (ASB) * submit statements in his own behalf * be represented by counsel * waive any of these rights * withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge b. The commander noted that the applicant had completed a medical examination and a mental status evaluation. 10. On 12 February 2008, the applicant acknowledged he had been advised by counsel of the basis for the contemplated separation action for misconduct (commission of a serious offense). He also acknowledged he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. He further acknowledged that as a result of a discharge UOTHC he might be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life. He did not submit statements in his own behalf. He requested: * consideration of his case by an ASB * personal appearance before the ASB * consulting counsel and representation by military counsel or civilian counsel at no expense to the Government 11. On 13 February 2008, the commander recommended the applicant be separated for commission of a serious offense with issuance of an UOTHC discharge. He noted that rehabilitative efforts had been tried and failed, and additional efforts would not be deemed appropriate. He recommended the rehabilitative transfer requirement be waived. 12. On 19 February 2008, the senior defense counsel submitted a memorandum on behalf of the applicant. He requested the separation action be discontinued, the applicant receive an immediate rehabilitative transfer, and that he be sent to anger management. 13. The chain of command recommended approval of the applicant's separation UP AR 635-200, chapter 14, and that his service be characterized as UOTHC. 14. On 2 April 2008, the applicant and his counsel appeared before an ASB. a. A review of the ASB proceedings, in pertinent part, shows: * the matter of a rehabilitative transfer was made known to the board * a witness testified that the applicant "was moved to a new platoon and given a fresh start" b. In response to questions by: * his counsel, he stated, "I have never been studied for PTSD." * the Government, he stated, "I haven't had any testing for PTSD. I have been to an exam; I stopped the exam because I was afraid I would be terminated from service." * ASB members, he stated, "I feel I should be retained in the Army" and "Anger management is my way to regain what I once had" c. A review of the ASB proceedings failed to reveal evidence that the applicant was found unqualified for military service based on any unfitting medical condition(s). d. The board found the applicant had committed a serious offense UP AR 635-200, paragraph 14-12c. The board recommended his separation from military service with the issuance of a general discharge, under honorable conditions. e. The applicant, his senior defense counsel, and his former first sergeant submitted letters to the discharge authority requesting retention of the applicant in the service and a rehabilitative transfer. 15. On 28 April 2008, the separation authority approved the recommendation for discharge of the applicant UP AR 635-200, paragraph 14-12c, with a general, under honorable conditions discharge. 16. The applicant's DD Form 214 shows he entered active duty this period on 27 July 2001 and he was discharged, on 29 April 2008, UP AR 635-200, paragraph 14-12c, based on misconduct (serious offense) with service characterized as under honorable conditions (general). He had completed 6 years, 9 months, and 3 days of total active service during this period. 17. A review of the applicant's military personnel records failed to reveal any evidence that he was referred to a Medical Evaluation Board (MEB) or a Physical Evaluation Board (PEB), or that he had any unfitting medical condition(s). 18. The applicant submitted an application to the Army Discharge Review Board (ADRB) for upgrade of his discharge. On 27 May 2009, the ADRB determined that the reason for his discharge and the character of his service were both proper and equitable. Accordingly, the ADRB denied the relief requested by the applicant. 19. On 17 November 2011, the Army Board for Correction of Military Records (ABCMR) denied the applicant's request for upgrade of his discharge. 20. In support of his application the applicant provides the following documents: a. VAMC, Alexandria, VA, medical records that show, on 13 July 2010, the applicant was diagnosed with PTSD, chronic and bipolar disorder, type II. b. VA Regional Office, New Orleans, LA, rating decision, dated 14 January 2014, that shows he was granted service connection for PTSD and bipolar disorder with psychosis (also claimed as insomnia). c. Iowa City VA Health Care System, Iowa, IA, letter, dated 22 April 2016, that shows the applicant has been in the care of the Iowa City VA since June of 2015 for PTSD, intermittent explosive disorder, and bipolar disorder. 21. In the processing of this case, an advisory opinion was obtained from the medical staff, Army Review Boards Agency (ARBA), dated 4 November 2016. a. The staff psychiatrist stated the applicant is applying for upgrade of his discharge contending that the misconduct which led to his discharge from the Army was due to undiagnosed PTSD. Her review considered the applicant's application and personal statements, VA progress notes and rating decision, military records, and his electronic medical records. b. She noted the VA found the applicant to be 100% service-connected for PTSD, as of 6 April 2010. The progress notes indicate he was diagnosed with PTSD, chronic and bipolar disorder, type II. He has also been diagnosed with intermittent explosive disorder. c. Her review of his electronic medical records indicated he was evaluated by psychology on several occasions while on active duty. On 28 November 2007, he reported that his problems with anger began in 2006; he was diagnosed with Occupational Problem. In April 2008, he was referred to Anger Management. d. The staff psychiatrist noted there is no evidence that the applicant failed to meet medical retention standards that were applicable to the applicant's era of service. He was psychiatrically cleared for any administrative actions deemed appropriate by command. e. The advisory concluded, "[t]he applicant's angry, aggressive presentation offered no obvious clues that the applicant was suffering from PTSD. However, in retrospect, one can see that these behaviors began after his second deployment and worsened after his third deployment. PTSD is associated with irritable behavior and angry outbursts which occur with little or no provocation and are expressed as verbal or physical aggression. PTSD is also associated with reckless, self-destructive behaviors. As such, there is likely a nexus between the misconduct which resulted in the applicant's discharge from the Army (communicating a threat to kill an NCO and trying to enter Fort Polk with a loaded weapon) and the applicant's PTSD. Based on the information available at this time, the applicant has a mitigating condition (PTSD) for the offenses which led to his discharge from the military." 22. On 8 November 2016, the applicant was provided a copy of the ARBA advisory opinion to allow him the opportunity to submit comments or a rebuttal. 23. On 15 November 2016, the applicant stated he was not afforded counseling until he was notified that he was being administratively separated from the Army. He refused to talk about his other problems because he did not believe the counselor could help him. He states that his anger issues started during his deployment in 2005. He adds, "[m]y retention board was not mention[ed], that's who decided that I was unfit for duty mentally." He also provides information he previously presented in his self-authored statements. REFERENCES: 1. 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." 2. 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. 3. 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, along with 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. 4. 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 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. 5. 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 (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. 6. 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? 7. 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 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. 8. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), sets forth policies, responsibilities, and procedures in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Separation by reason of disability requires processing through Integrated Disability Evaluations System. a. Chapter 3 (Policies), paragraph 3-5 (Use of the VA Schedule for Rating Disabilities), shows that only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. b. Chapter 4 (Procedures), paragraph 4-10, shows that MEBs are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualification for retention based on criteria in AR 40-501 (Standards of Medical Fitness), chapter 3. If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB. 9. Title 10, United States Code, shows: * section 1201 provides for the physical disability retirement of a member who has a disability rated at least 30 percent * section 1203 provides for the physical disability separation with severance pay of a member who has less than 20 years of service and a disability rated at less than 30 percent 10. Manual for Courts-Martial (MCM), United States (2012 Edition), Part IV (Punitive Articles), lists Article 134 (Weapon, concealed, carrying) and Article 134 (Threat, communicating) as serious offenses punishable by court-martial. 11. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 3, 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. The conditions that subject Soldiers to discharge include the commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the MCM. (The offenses of carrying/transporting a concealed weapon and communicating a threat both are considered serious offenses.) (1) Action will be taken to separate a Soldier for misconduct when it is clearly established that: * despite attempts to rehabilitate or develop him/her as a satisfactory Soldier, further effort is unlikely to succeed * rehabilitation is impracticable or the Soldier is not amenable to rehabilitation (as indicated by the medical or personal history record) (2) A discharge UOTHC is normally considered appropriate. However, the separation authority may direct a general discharge if such is merited by the member's overall record. DISCUSSION: 1. The applicant contends that his general, under honorable conditions discharge should be upgraded based on a post-service diagnosis of PTSD and bipolar disorder, and his discharge corrected to show he was medically retired based on the unfitting medical conditions. 2. The applicant's discharge for misconduct UP AR 635-200 based on misconduct (serious offense) was administratively correct. All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. This included a mental status evaluation by a psychologist who found the applicant to be mentally responsible for his actions and psychiatrically cleared him for any administrative action. a. The ARBA staff psychiatrist opined that the applicant has a mitigating condition (PTSD) for offenses which led to his separation from the Army. b. An UOTHC discharge is normally considered appropriate for a discharge due to misconduct based on commission of a serious offense. c. The chain of command at the time recommended approval of the applicant's discharge with an UOTHC discharge. However, the ASB recommended the applicant be discharged under honorable conditions. It is reasonable to conclude that the ASB considered all the evidence presented, including the applicant's complete record of service, in mitigation of his misconduct. In addition, the separation authority approved the discharge with the recommended characterization of service. d. The evidence of record shows the characterization of the applicant's service was carefully considered. During the period under review, it is clear his service did not meet the standards of acceptable conduct and performance of duty for Army personnel to merit an honorable discharge. 3. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards and 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. a. This policy provides for upgrade of an UOTHC characterization of service consistent with the overall character of service during the period under review as mitigated by the (then) undiagnosed medical condition. An upgrade of the characterization of service to general, under honorable conditions offers the former Soldier eligibility for veterans' benefits. b. The applicant was not discharged UOTHC; he was administratively discharged under honorable conditions. 4. There is no evidence of record to show that the applicant's medical conditions were found to be medically unfitting by an MEB or a PEB UP AR 40-501. 5. The evidence of record shows the VA has granted the applicant disability compensation for several service-connected medical conditions. 6. Both the statutory and regulatory guidance provide that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service. Furthermore, the condition(s) can only be rated to the extent that the condition(s) limit(s) the performance of duty. The VA on the other hand, provides compensation for disabilities which it determines were incurred in or aggravated by active military service, including those that are detected after discharge, and which impair the individual's industrial or social functioning. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017997 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017997 13 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2