BOARD DATE: 9 May 2017 DOCKET NUMBER: AR20150018685 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: 9 May 2017 DOCKET NUMBER: AR20150018685 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: 9 May 2017 DOCKET NUMBER: AR20150018685 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 bad conduct discharge. 2. The applicant states: * he was an accomplished Soldier * his behavioral problems and post-traumatic stress disorder (PTSD) symptoms started after he was run-over by a M1114 Up-Armored Highly Mobile Multi-Wheeled Vehicle while deployed to Iraq in 2004 * upon returning to the states he began to have night terrors and exhibited violent behavior causing his family to be fearful * he asked for help but his unit was being reorganized so no one was willing to assist him * he attempted to walk-in at the Fort Hood, TX, Mental Health Clinic, but there were no immediate or near term appointments due to so many Soldiers requesting help * he took matters into his own hands and decided that an addiction to methamphetamine was better than scaring his family * he was addicted for a little over a year before testing positive during a urinalysis at Fort Carson, CO * he received an Article 15, was seen by a psychiatrist, and enrolled in the Army Substance Abuse Program * he was diagnosed with PTSD and prescribed medications, one of which was Ambien, on his initial mental health visit * he had been on Ambien for a month when he experienced the unfortunate side effect of sleep walking which lead to his court-martial charges * he contends his defense counsel failed to argue that the side effects of the medication had something to do with his misconduct * he takes responsibility for using methamphetamines but feels the Army failed to provide him adequate treatment for his drug addiction * he had a mental health diagnosis yet his commander informed him he was not allowed to receive the treatment prescribed * since 2013 he enrolled in college and has attended several Addiction Disorder Services and PTSD therapy cohorts * he is finally at a point in his life where he is stable and having a bad conduct discharge on his record will significantly impact his ability to obtain successful employment * he asks that the Board consider not only the questionable events surrounding his discharge but more so, consider his hard fight toward a better life 3. The applicant provides: * various service records * discharge narrative with allied documents * Congressional correspondence addressing PTSD related negative discharges, dated 2006 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 6 November 2006. The highest rank attained was staff sergeant and he served in Iraq from 2 March 2004 to 4 March 2005. 3. On 8 May 2007, the applicant was convicted by a general court-martial at Fort Carson, CO, and found guilty of the following charges: * failing to go to his appointed place of duty * disrespecting a commissioned officer * wrongfully using of methamphetamines * unlawfully choking a civilian by the throat * communicating a threat to a noncommissioned officer (NCO) * disorderly conduct * breaking restriction * wrongfully having sexual intercourse with a married woman not his wife 4. His sentence included confinement for 6 months and a bad conduct discharge. The convening authority approved the sentence except for the part of the sentence extending to the bad conduct discharge. 5. The applicant completed his sentence and was released from confinement on 21 May 2007. 6. On 30 July 2007, the applicant’s defense counsel requested the General Court-Martial Convening Authority consider granting the applicant clemency by approving a post-trial request for discharge in lieu of court-martial. a. On 8 May 2007, the applicant pled guilty and was found guilty of failing to repair, wrongful use of a controlled substance, assault consummated by a battery, communicating a threat, disorderly conduct, breaking restriction, and adultery. b. While deployed to Iraq, the applicant was injured when an American Humvee ran over him. He sustained a ruptured bladder, nerve damage to his hand, a fracture to his left hip, and a compound fracture to his left leg. During his recovery, he began having mental health issues and symptoms of PTSD. All his misconduct occurred after his deployment and injury. c. The applicant has acknowledged his guilt and apologized to his chain of command for the disturbance his conduct caused the unit. He contends that his PTSD led to his addiction to methamphetamines and his misconduct. 7. On 9 August 2007 the separation authority disapproved his request. 8. On an unknown date, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence. 9. General Court-Martial Order Number 178, issued by Headquarters, U.S. Army Field Artillery Center, Fort Sill, OK, on 21 August 2008, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge executed. 10. Accordingly, the applicant was discharged on 16 June 2009. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations) with a bad conduct discharge. He completed 7 years and 6 months of active service and he had lost time from 1 to 28 December 2006 and 8 to 20 May 2007. Additional time lost due to excess leave from 14 June 2007 to 16 June 2009. 11. He provides: * his service records noting his achievements and awards including two Army Commendation Medals * congressional correspondence describing the lack of available and sufficient treatment at Fort Carson, CO, for Soldiers suffering from PTSD and the pattern of improperly discharging these Soldiers for misconduct 12. In the processing of this case the Army Review Board Agency’s psychiatrist rendered an advisory opinion on 13 February 2017 regarding a nexus between the applicant’s misconduct and his PTSD. a. The advisory official reviewed his application, personal statement, court-martial proceedings, separation documents, electronic service medical records, and Department of Veterans Affairs medical records. She confirmed the applicant suffered from PTSD, depression and methamphetamine abuse. b. The official opined that there was a likely nexus between his PTSD and the offenses relating to the use of methamphetamines, failing to report to his assigned place of duty, and being disrespectful to a commissioned officer. However, there is no documentation to support that a behavioral health condition, including PTSD, contributed to choking an individual, communicating a threat, disorderly conduct, making a false statement, or having sexual intercourse with a women other than his spouse. 13. The advisory opinion was provided to the applicant for comment. He did not respond by the suspense date. REFERENCES: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. It states in: a. Paragraph 3-7a, 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. Paragraph 3-7b, 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. c. Paragraph 3-7c, a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of service in selected circumstances. d. Paragraph 3-11, a member 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 ordered duly executed. 2. Court-martial convictions stand as adjudged or 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. 3. 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." 4. 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. 5. 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. 6. 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 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. 7. In view of the foregoing, on 3 September 2014 the Secretary of Defense directed the Service 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 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. 8. BCM/NRs are not courts, nor are they investigative agencies. Therefore, the determinations is 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? 9. Although the DOD 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 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 under other than honorable conditions 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 under other than honorable conditions. Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. DISCUSSION: 1. The evidence of record shows the applicant's trial by a general court-martial was warranted by the gravity of the offenses charged. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted. 2. The issue here is not whether he has or does not have PTSD. The issue is whether there is a nexus between his PTSD diagnosis and the misconduct that led to his trial and court-martial conviction. 3. The ARBA psychiatrist found after carefully weighing the evidence in the applicant’s case that his PTSD symptoms were not a mitigating factor in the assault, disorderly conduct, making a false official statement, and adultery. Thus it appears that PTSD was not a causative factor for some of the misconduct that led to his court-martial conviction and sentence. PTSD could potentially be related to his use of methamphetamines (use of illicit drugs to self-medicate), failing to report to his assigned place of duty (avoidance behavior), and being disrespectful to a commissioned officer (anger and oppositional behavior). 4. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. By law, any redress by this Board of the finality of a court-martial conviction is prohibited. This 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) AR20150018685 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018685 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2