SAMR-RB 27 November 2017 MEMORANDUM FOR Office of the Surgeon General, ATTN: DASG-HSZ-PAD, 7700 Arlington Blvd., Suite 3SW328B, Falls Church, VA 22042 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for, AR20160000403 1. Reference the attached Army Board for Correction of Military Records of Proceedings, dated 19 October 2017, in which the Board members unanimously recommended partial relief of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant additional relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that the applicant's case be referred to the Office of the Surgeon General to determine if he should have been retired or discharged by reason of physical disability through the Integrated Disability Evaluation System (IDES). a. In the event that a formal physical evaluation board (PEB) becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. b. Should a determination be made that the applicant should have been separated under the IDES, these proceedings will serve as the authority to void his administrative separation and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 27 March 2018. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: Deputy Assistant Secretary of the Army (Review Boards) BOARD DATE: 19 October 2017 DOCKET NUMBER: AR20160000403 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ____x____ ___x_____ ____x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 19 October 2017 DOCKET NUMBER: AR20160000403 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 to show: a. he was credited with 6 months of foreign service; b. he was awarded or authorized the Iraq Campaign Medal with one bronze service star, the National Defense Service Medal, and Global War on Terrorism Service Medal; c. he completed the Military Police Course (11 weeks) in 2003; and d. he was credited with "SERVICE IN KUWAIT/IRAQ FROM 20031001-20040331." 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to: a. amending his DD Form 214 to show: (1) he was awarded or authorized the Global War on Terrorism Expeditionary Medal and the Overseas Service Ribbon; (2) he completed the Combat Lifesaver Course, Personal Security Detail Training, Special Reaction Team Training, or the Fort Hood Military Police Orientation Course; (3) an upgraded service characterization to honorable; (4) a different authority and narrative reason for separation; b. correcting his records by removing all documents related to his court-martial proceedings; c. processing his record through the Physical Disability Evaluation System; and/or d. granting a personal appearance before the Board. _____________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: 19 October 2017 DOCKET NUMBER: AR20160000403 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: a. correction of his records by removing all documents related to his court-martial proceedings; b. correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show: * he was retired due to physical disability * his service characterization was upgraded from general, under honorable conditions to honorable * restoration of his rank/grade to specialist four (SPC)/E-4 * all awards he is authorized * all military education he completed * his period of foreign service in Iraq c. a personal appearance before the Board. 2. The applicant defers to counsel for further arguments and the submission of evidence. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests: a. The applicant be granted a retroactive medical retirement and retroactive retirement pay. In the alternative, the Board should modify his Army separation documents by removing all documents related to his court-martial. b. The applicant's characterization of service should be upgraded to honorable and his rank and pay grade restored to SPC/E-4. In the alternative, his rank and pay grade should be restored to private first class (PFC)/E-3. c. Correction of the applicant's DD Form 214 to show he was awarded or authorized the: * National Defense Service Medal (NDSM) * Iraq Campaign Medal (ICM) * Global War on Terrorism Service Medal (GWOTSM) * Global War on Terrorism Expeditionary (GWOTEM) * Overseas Service Ribbon (OSR) d. Correction of his DD Form 214 to show he completed the following military education courses: * Military Police One Station Unit Training * Combat Lifesaver Course * Personal Security Detail Training * Special Reaction Team Training * Fort Hood Military Police Orientation Course e. Correction of his DD Form 214 to show his foreign service in Iraq. 2. Counsel states: a. The applicant suffered a traumatic brain injury (TBI) and developed chronic migraine syndrome, post-traumatic stress disorder (PTSD), and depression during his 2003 through 2004 combat tour in Iraq. Although he repeatedly sought help from his superiors and the Fort Hood, TX, Mental Health Clinic, his disabilities were not properly diagnosed or treated while he was still in the service. b. In 2005, his condition worsened to a point where, after a period of emergency leave, he could not bring himself to return for his impending redeployment and he went absent without leave (AWOL) for several months. After he voluntarily returned to base, he was court-martialed and given a bad conduct discharge (BCD). c. Within the last 3 years, several medical professionals have diagnosed his service-connected disabilities. Furthermore, both the Department of Veterans Affairs (VA) and the Army Discharge Review Board (ADRB) have recognized the honorable character of his service by, respectively, granting him a favorable character of service determination and a discharge upgrade to general, under honorable conditions. If the applicant had been properly evaluated he would have been medically retired by reason of permanent disability. Instead, due to the errors of those responsible for his well- being, he suffered a disproportionately harsh sentence that prevented him from receiving proper medical treatment for years and continues to negatively impact him. d. The applicant respectfully requests a retroactive medical retirement and a remedy of his disproportionately harsh punishment by restoring his rank and upgrading his character of service to honorable. This will remove the stigmatizing aspects of his DD Form 214 that indicate he was court-martialed. e. The applicant grew up in Rocky Hill, CT. In high school, he excelled as a three-sport athlete, had many good friends, was a leader among his peers, and was close with his parents. He dreamed of becoming a police officer like his father, who served in the Wethersfield, CT, Police Department for 27 years. Around November 2002, at age 18, he enlisted for 5 years as Military Police (MP). As an MP, he felt he could fulfill his dream of becoming a police officer while serving his country and continuing a family tradition of military service. In November 2002, a military medical examiner assessed his psychological condition as normal and cleared him for "full duty and training. At Fort Leonard Wood, MO, he excelled in one station unit training, becoming a squad leader, representing his unit as the guidon bearer, and carrying the phase banner at his graduation. He was transferred to Fort Hood, TX. f. In September 2003, after just 1 month at Fort Hood, the applicant deployed to Tikrit, Iraq, where he joined the rest of his unit. Throughout his combat deployment, he primarily worked convoy security and as added security on patrols as a turret gunner on unarmored Humvees. He also served as a prison guard at a containment facility. As a turret gunner, his unit frequently came into contact with enemy forces, encountering improvised explosive devices, taking small arms fire, and engaging in firefights with insurgents. As a prison guard, he and his unit manned the guard towers and guarded enemy prisoners of war. Insurgents mortared his unit’s containment facility about four times a week and attacked it with small arms fire and rockets. g. The applicant performed well during his deployment. His fellow Soldiers respected him, recognized him as a skilled gunner and team player, and recommended that he go into the Special Forces. A fellow Soldier, Sergeant M__, said the applicant "was an outstanding Soldier, definitely one of the best in our platoon." On 26 January 2004, his superiors chose him for a personal security detail. As his deployment continued, his combat experiences caused him to become increasingly disturbed. On 6 February 2004, near the end of his deployment, he fell from a 30-foot guard tower. He has no memory of what caused the fall. His friend and fellow MP, Mr. D__ found him face down, unconscious near the base of the tower. His head was in a pool of blood and he had a large gash on his forehead. Mr. D__, a trained medic, used a sternal rub to rouse the applicant. Shortly afterwards, he began rambling incoherently. He received stitches at the aid station, but no other medical treatment. His military records contain no documentation of his fall or treatment at the aid station. h. Following his head injury, he became markedly more depressed and anxious. He began experiencing "constant nightmares," and he often "woke up throughout the night panicking." His parents worried about their son, especially while he was deployed, noticing that he called home less frequently and seemed like a different person. As a result of his fall, he also began to experience back pain and severe headaches. Army medics provided him over-the-counter painkillers, and he began taking 16 to 20 painkillers daily, which he has continued to do to this day to treat his headaches. He continued to deal with these symptoms as his combat tour ended on 5 April 2004. i. Between April and June 2004, after he had returned to Fort Hood, the applicant repeatedly told his chain of command about the symptoms he was experiencing and explained that he felt both physically and mentally unable to continue serving. He spoke with his company commander, with his platoon sergeant, and with several other noncommissioned officers (NCO). His parents also called his platoon sergeant and the other members of his chain of command several times to explain their son needed help. His chain of command told him to toughen up and tell his parents to stop calling. Instead of referring him for an evaluation and treatment, his chain of command sent him to speak with a chaplain. The applicant explained to the chaplain that he did not feel he was able to serve any longer, but the chaplain also failed to refer/recommend him for medical care. j. After returning from deployment, the applicant continued to become more aggressive, anxious, and depressed. When he was at home on leave, his parents noticed his deterioration with alarm. His father immediately observed when he met him at the airport, his only child with whom he was once extremely close, could barely embrace him; he seemed absent. When his parents surprised him with a Ford Mustang upon his return, he had no reaction to the car he always wanted. His parents also noticed he woke up throughout the night to check outside his windows. In September 2004, after he returned to Fort Hood, he married his high school girlfriend without telling either of their families. His parents noted this sort of impulsive behavior was out of his character. When the marriage ultimately broke down, his ex-wife told the applicant's parents he was "not the person she knew." His fellow Soldiers also observed that he was more easily angered, hot-tempered, and snappy after returning from the war. k. On two separate occasions, in June 2004, at Fort Hood, the applicant drove off base a few hours because he felt he could not handle life in the Army any longer. The second time he missed formation and an NCO called him and promised that he would receive help if he returned. However, when he returned the commander placed him on barracks restriction and threatened him for going AWOL. l. On 30 June 2004, shortly after his barracks restriction ended, the applicant sought help at the Fort Hood Mental Health Clinic during walk-in hours. On the clinic's intake form, he noted he was experiencing poor disrupted sleep, excessive anxiety, rapid breathing, rapid heartbeat, decreased appetite, crying, racing thoughts, and difficulty controlling worry. He indicated he felt sadness, rage, anxiety, and hopelessness, loneliness, loss of all close friends, and separation from his girlfriend and family were stressors for him at the time. He stated he was seeking help because he was "depressed" and could not "take military life away from home." He answered the question "[w]hat result do you desire from this clinic today" by writing: "my chain of command to realize I need to be chapterd [sic] out of the Army ASAP [as soon as possible]." m. SPC K__, an enlisted mental health specialist, evaluated the applicant. SPC K__'s notes indicate the applicant was feeling anxious, was only getting 5 hours of restless sleep, had a decreased appetite, and felt hopeless about his situation in the military and "trapped." SPC K__ noted his anxiety symptoms included excess worrying, palpitations, and shortness of breath. SPC K__ military occupational specialty (MOS) did not qualify him to make a medical diagnosis. The applicant was misdiagnosed with Axis I adjustment disorder. SPC K__ did not inform the applicant of this diagnosis, schedule any follow-up evaluations or confer with his chain of command. SPC K__ merely informed the applicant of the clinic's walk-in hours and emergency services and advised him to speak with a Judge Advocate General (JAG) about his discharge options. Upon learning of this advice, the applicant's chain of command told him not to talk to JAG. n. In 2004, the applicant's unit was dissolved, he joined a new unit and learned the unit would deploy to Iraq. He immediately told his new chain of command he did not feel physically or mentally ready to deploy. Undergoing training scenarios with his new unit reminded him of his experiences in Iraq and triggered panic attacks that rendered him unable to function and forced him to excuse himself from the training. His new chain of command also did not refer him for evaluation, instead he was told he had to redeploy. Immediately before his unit scheduled deployment in November 2005, he went home to Connecticut for his grandfather's funeral on emergency leave. When he arrived at the airport to board his flight back to Texas, he found himself unable to return to his impending deployment. He remained at his parents' home for about 6 months. o. In May 2006, after he was finally able to bring himself to return to the base, he sought help from the new chain of command that had rotated into at Fort Hood. However, like his previous two chains of command, this chain of command did not refer him for evaluation or treatment. Instead, on 9 June 2006, he received an Article 15 for going AWOL, he was reduced to the rank of PFC, and was given instructions to prepare for deployment. Based on his superiors' insistence that he was indeed fit to serve and to deploy, and the message he had received from his previous two chains of command and the Fort Hood Mental Health Clinic, he thought he could continue to serve and that he was medically sound. For the next several months he provided building security on base. During this period, he continued to exhibit irritable behavior, at one point engaging in a fist fight with a fellow Soldier. p. On 11 September 2006, more than 3 months after he had returned to base, Major W__ charged him with desertion. His court-martial took place on 23 October 2006. At the time, he continued to suffer from symptoms of undiagnosed and untreated PTSD, depression, and TBI. Under the advice of defense counsel, he voluntarily pled guilty to the charge and highlighted marital problems as the main source of his stress. He was sentenced to a forfeiture of $849 pay for 4 months, reduction to pay grade E-1, confinement at Fort Sill, OK, for 4 months, and a BCD. q. At the time of the applicant's discharge, he had earned several medals and ribbons and had completed multiple military education courses. His service records only notes he received the Army Service Ribbon. No other medals, awards, ribbons, military education courses, or his combat tour in Iraq between September 2003 and April 2004 are reflected. r. Several doctors have diagnosed the applicant with service-connected disabilities and the VA and ADRB have recognized his service as honorable. s. Many years after his discharge, the applicant was reluctant to seek help. After repeatedly doing so while he was in the Army, and consistently being told nothing was wrong with him, he convinced himself that nothing was medically wrong. He felt ashamed that others had been able to cope with their deployment and believed he was weak for being unable to do so. He continued to spiral downhill and in December 2012, his father convinced him to see Dr. H__, a clinical psychologist. In December 2012, Dr. H__ diagnosed him with service-connected PTSD. Dr. H__ also evaluated the applicant’s intake form and notes from his visit to the Fort Hood Mental Health Clinic. Dr. H__, concluded at the time of this visit, the applicant was "a highly compromised individual" who "should [have been] referred for treatment... as well as an evaluation for psychiatric medication." t. In March 2014, Dr. L__, Assistant Clinical Professor of Psychiatry at Yale University School of Medicine and Director of the Violence and Health Study Group at Yale University, evaluated the applicant and diagnosed him with service-connected PTSD. Having analyzed the intake form he notes the applicant's visit to the Fort Hood Mental Health Clinic, Dr. L__ found the applicant "experienced severe symptoms that debilitated him in his daily functioning following his deployment to Iraq," and that "it is highly likely he had both [PTSD and major depressive disorder] when he presented to the chaplain and the Fort Hood Mental Health Clinic in 2004." These illnesses were not addressed. According to Dr. L__, the applicant "received inappropriate treatment at the time of presentation," and the failure to properly evaluate, refer, and treat him may likely have allowed his symptoms and the overall course of his disorders to worsen. u. Dr. L__ reported that prior to going AWOL in 2005, the applicant suffered from the most severe case of PTSD she has ever seen, and his symptoms "likely did not allow him full control over his behavior. Furthermore, as she explained: "It was probably not possible for him to return to Iraq without extreme distress. In this context, his actions of AWOL are entirely consistent with PTSD and to be expected. " v. In August 2015, Dr. R__, who completed his residency in neurology at Yale-New Haven Hospital and has been in practice for over 25 years, evaluated the applicant and diagnosed him with TBI. Dr. R__ concluded he suffered at least a moderate TBI when he fell from the guard tower. Dr. R__ diagnosed him with chronic migraine syndrome, and stated all of his headaches are manifestations of this disorder. He explained the applicant's left hemisphere shows subtle signs of damage from a TBI, and his headaches are causally related to the original TBI. Dr. R__ noted the applicant suffers from intermittent blurred or double vision, intermittent dizziness, constant hypersensitivity to light, constant tinnitus, and motor activity that is moderately slowed due to apraxia. He also found that the applicant has difficulty tracking moving objects, reading, and focusing on objects appropriately, as well as a mildly dysconjugate gaze (at least from time to time) when focusing on objects, and these symptoms were at least more likely than not the result of his TBI. Furthermore, according to Dr. R__, the applicant's injury may have "contributed to the cognitive and behavioral difficulties that he has. w. In January 2014, a VA Character of Service Determination concluded the applicant's service was "honorable and ... not a bar to VA benefits under the provisions of Title 38 Code of Federal Regulations 3.12(c)(6)(i-ii)," relying in part on the symptoms he reported during his visit to the Fort Hood Mental Health Clinic. Ultimately, the VA service-connected him for PTSD, TBI, depression, headaches, back pain, tinnitus, a painful scar, and ulcers. x. In September 2014, the ADRB upgraded his discharge to general, under honorable conditions. The ADRB concluded the "overall length and quality of [the applicant's] service," his combat tour in Iraq, and PTSD were mitigating factors for his misconduct. The ADRB further stated if the applicant had received a firm diagnosis of PTSD and TBI, this would have been mitigating at his trial and may have led to a more lenient sentence. y. Since his discharge, his service-connected disabilities have continued to plague him, and his excessive court-martial punishment has stigmatized him, hurt his employment prospects, and prevented him from looking back on his service with pride. Since his deployment, he has exhibited uncharacteristically impulsive behavior and impaired judgment. For example, he was fiscally responsible before deployment; after deployment he has built up a $15,000 balance on his credit card and one of his cars was repossessed. z. The applicant has also become prone to violent, aggressive behavior, which is similarly at odds with his behavior before he deployed. In 2007, he was arrested for disorderly conduct during a traffic stop. He has engaged in physical fights since returning from deployment and once injured himself in the process by breaking a car window. Due to his anger, he has also physically damaged objects, walls, and doors. At one point during a family gathering, his parents became so concerned they left his house. aa. The applicant also suffers from a host of physical symptoms that began after his fall, including: tinnitus, ulcers, low back pain, various eye problems, chronic migraine syndrome, and its associated symptoms. According to Dr. R__, The applicant suffers from severe daily headaches that are "often debilitating" and "often associated with photophobia, phonophobia, nausea, and sometimes vomiting." Each month he experiences "at least eight headaches" that are "throbbing, lasting for hours at a time." He has "dizziness and blurred vision when his headaches are severe," and "about twice a month he experiences episodes of blurred or double vision and dizziness even when he does not have a headache." He also frequently experiences prostrating headaches that "last all day and are so debilitating he is unable to do any activities whatsoever." Since his discharge, he has continued to take 16 to 20 painkillers daily to treat the symptoms of chronic migraine syndrome. Since 2014, he has also used several prescription medications, none of which has successfully controlled these symptoms. bb. The applicant's personal relationships have suffered greatly since his deployment. In 2008, a few years after his first marriage ended, he had a child with a woman he had known in high school. In 2011, after having a second child together, they were married. This marriage lasted only until 2013. He began his third marriage in 2015 after a brief, unstable relationship, and filed for a divorce 4 months later. He has one remaining friend and his parents have difficulty maintaining a relationship with him. cc. The applicant's disabilities have also interfered with his ability to maintain employment. He has held a job for a total of only three out of the last ten years. In 2012, he lost a job because his employer required him to make overnight trips, which triggered his PTSD and caused anxiety attacks, as they reminded him of trips he took in Iraq. He frequently had to take time off from his job, often because of his severe migraine headaches. He recently secured a new job, but because of his headaches, he regularly has to lie down in the darkened room where he works alone, which his co-workers refer to as the applicant's "dungeon." Working in this room also helps with his hypersensitivity to light, and allows him to largely avoid interacting with others. As a result of his trouble maintaining employment, his parents have financially supported him and his children since his discharge. dd. The applicant returned from war a changed man. Multiple doctors have concluded he suffered from PTSD, depression, and a TBI during his service. These disabilities made him unable to serve and particularly to return to Iraq, as he was nearly forced to do. The ADRB has recognized these mitigating circumstances and upgraded his discharge status, but the separation authority, separation code, reentry code, and narrative reason for separation on his DD Form 214 continue to indicate he was court-martialed. In addition, his reduction in rank to pay grade E-1 remains in effect. ee. Due to the errors of those responsible for him, the applicant never received the medical retirement he needs and deserves. Instead, he received a disproportionately harsh sentence that prevented him from receiving proper medical treatment for many years and continues to negatively impact him. He requests the Board, which is empowered to correct military records when "necessary to correct an error or remove an injustice," use that power to grant his petition. ff. He learned that he should have been medically retired when the ADRB recognized his BCD was disproportionately harsh, or alternatively when Dr. H__ diagnosed him with service-connected PTSD in December 2012. Thus, his requests are timely. gg. While he repeatedly sought help after returning from deployment, Army personnel eventually convinced him that he was healthy enough to serve. As Dr. L__ has explained, he suffers from "a lack of insight, which is an impaired awareness of the severity of one's symptoms and disabilities indicative of severe mental illness." Because of this manifestation of his disabilities, he "seems incapable of appreciating how serious his medical conditions are." Furthermore, while he was in the Army, he did not know about medical retirement; he simply thought the Army could honorably discharge Soldiers with severe medical issues. Thus, it was not until the ADRB recognized, in September, 2014, that the characterization of his service was "too harsh and as a result inequitable" in light of his PTSD and possible TBI that he "discovered the error or injustice for which [he] seeks relief." Alternatively, and at the earliest, he discovered this in December 2012 when Dr. H__ diagnosed him with service-connected PTSD. hh. The applicant should have been found unfit for service and rated 90 percent disabled; therefore, the Board should retroactively medically retire him. Were it not for the errors of those responsible for him, he would have been medically retired from the Army. Under Federal law the Secretary of the Army may separate service members when they are found "unfit to perform the duties of the member's office, grade, rank, or rating because of physical disability incurred while entitled to basic pay. Fitness for military service is based on a preponderance of the evidence. If he had received an adequate medical evaluation, Army physicians would have deemed him unfit to continue serving under Army Regulation 40-501, "Standards of Medical Fitness." Because he satisfies the requirements for a medical retirement with disability benefits laid out in Army Regulation 635-40 governing "Physical Evaluation for Retention, Retirement, or Separation"-including that he would have been rated over 30 percent disabled-he would have been medically retired. Therefore, the Board should now grant him a retroactive medical retirement. ii. Because of the symptoms he was exhibiting and his repeated requests for help, those responsible for him should have referred him for an evaluation to determine whether he was fit for service. The Army Physical Disability Evaluation System (PDES) is the process through which medical separation determinations are made. Army Regulation 635-40 states: "When a commander believes a Soldier is unable to perform the duties of their office, grade, rank, or rating because of physical disability, the commander will refer the Solder to the responsible [Medical Treatment Facility] for evaluation." jj. The applicant asked his first chain of command for help numerous times. His chain of command knew he suffered from anxiety attacks, debilitating headaches, and other physical and mental symptoms. Thus, one of his commanding officers should have referred him to the PDES because his symptoms and actions indicated he was "unable to perform the duties of [his] office, grade, rank, or rating." By failing to refer him, his first chain of command violated Army Regulation 635-40. kk. The applicant's second and third chains of command had even more evidence that he was unable "perform the duties of [his] office, grade, rank, or rating." He told his second and third chains of command about the symptoms he was experiencing and the difficulties he was having, and he asked them for help. His second chain of command witnessed him experiencing anxiety attacks during Special Reaction T (SRT) and "PSD" training. Similarly, his third chain of command knew he had been unable to return to the Army for several months and that he had engaged in a fist fight with a Soldier after he returned. By failing to refer him for an evaluation despite this evidence and his pleas for help, his second and third chains of command also violated Army Regulation 635-40. ll. Once his chain of command referred him to the PDES, he would have been found unfit for service. When Soldiers are referred to the PDES, they undergo several rounds of evaluation, culminating in the convening of a Physical Evaluation Board. This Board determines whether the Soldier is fit to continue serving and whether the Soldier is eligible for medical retirement. In determining whether a Service member is unfit to perform his or her duties, "it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating." Additionally, "[t]he overall effect of all disabilities present in a Soldier whose physical fitness is under evaluation must be considered. A Soldier may be unfit because of a physical disability caused by a single impairment or physical disabilities resulting from the overall effect of two or more impairments even though each of them, alone, would not cause unfitness." mm. Army Regulation 40-501 states that a Soldier may be found unfit for military service if his medical conditions "individually or in combination": (1) significantly limit or interfere with the Soldier's performance of their duties; and (2) may compromise or aggravate the Soldier's health or well-being if they were to remain in the military Service; (3) may compromise the health or well-being of other Soldiers; (4) may prejudice the best interests of the Government if the individual were to remain in the military service. nn. If the applicant had undergone the PDES, the Army would have concluded his PTSD, TBI, and TBI-related chronic migraine syndrome made him unfit to perform his duties. According to him, the duties of an enlisted MP include: (1) working convoy security; (2) serving as added security on patrols; (3) serving as a containment facility guard; (4) working security on base in the United States; (5) working patrols on base in the United States; and (6) fighting in combat. The primary duty of Personal Security Detail (PSD) MPs is to ensure the safety of a commander or the very important person (VIP), a job that typically involves immense amounts of traveling. The key duty of an SRT MP is to respond to high-risk situations within a military base or compound. oo. PTSD has caused the applicant to suffer and he continues to suffer from frequent incapacitating anxiety attacks. The main and most intense trigger of his PTSD is being reminded of his combat experiences, and he experienced anxiety attacks during PSD and SRT training simply because these scenarios reminded him of what he had gone through in Iraq. Whether he was working convoy security, serving as added security on patrols, serving as a containment facility guard, guarding a VIP as a PSD MP, or dealing with a high-risk situation as an SRT MP, his panic attacks would severely disrupt his duties. pp. The applicant's physical symptoms such as headaches, hypersensitivity to light, tinnitus, and intermittent blurred or double vision would also have interfered with his ability to perform his duties. Even now, in an office job, he frequently misses work because of headaches. He is only comfortable working in a solitary, dark, environment and he lies down at work when his headaches are especially severe. During his more severe headaches, which occur approximately eight times per month, and especially during his completely prostrating attacks a few times per month, he is unable to function, and often must lie down for the remainder of the day. Because he would be incapacitated, he would not be able to fulfill his duties. qq. In addition to making the applicant unfit to serve as an MP at home, PTSD made him particularly unfit to deploy overseas. His anxiety attacks are triggered when he is merely reminded of his deployment to Iraq. If he had redeployed to a war zone he would have been paralyzed by anxiety. These panic attacks, in addition to his frequent debilitating headaches, would have put him and his fellow Soldiers in danger by rendering him suddenly unable to function. For all these reasons, if those responsible for him had referred him to the PDES pursuant to Regulation 635-40, he would have been deemed unfit to "reasonably perform the duties of his office, grade, rank, or rating. rr. According to Army regulations, once a Soldier is determined to be physically unfit for further military service, percentage ratings are applied to the unfitting conditions. Army regulations state disabilities that "contribute to the finding of unfitness" may be considered in "determining the compensable disability rating." Service members who are found to be unfit to perform their duties may be medically retired with disability benefits when three requirements are satisfied. First, the disability must be "of a permanent nature and stable." Second, the disability must not be the result of the member's intentional misconduct or willful neglect, and must not have been incurred during a period of unauthorized absence. Finally, service members with less than 20 years of service must meet a third set of criteria: that the disability is at least 30 percent under the standard schedule of rating disabilities in use by the VA at the time of determination and either: (i) the disability was not noted at the time of the member's entrance on active duty; (ii) the disability is the proximate result of performing active duty; (iii) the disability was incurred in the line of duty in time of war or national emergency; or (iv) the disability was incurred in line of duty after 14 September 1978. Because his disabilities were permanent and stable, incurred through his combat experiences in Iraq, and 90 percent disabling, he should have been medically retired. ss. First, prior to the applicant's discharge, his mental disorders and the effects of his TBI were both permanent and stable. The documents from the Fort Hood Mental Health Clinic indicate he suffered from overlapping and compounding symptoms of PTSD, depression, and TBI in June 2004. Dr. H__'s and Dr. L__'s reports confirm the applicant has continued to suffer from these symptoms for over a decade, indicating these disabilities are permanent and stable. Similarly, Dr. R__'s report concludes he has consistently suffered from the separate and distinct manifestations of TBI since his fall, demonstrating these manifestations are also permanent and stable. Second, he developed PTSD and depression and suffered a TBI as a result of his combat experiences in Iraq, not from any intentional misconduct or willful neglect. Finally, none of these disabilities were incurred during a period of unauthorized absence. tt. The applicant's disabilities should have been rated 90 percent disabling. He should be rated under the VA Schedule of Rating Disabilities (VASRD), which the Board applies to service members discharged on or after 11 September 2001. The Board has stated "[t]his approach is adopted as a matter of policy and equity." While the military was not required by statute to apply the VASRD until 28 January 2008, courts have long held that service branches may not diverge from the VA Schedule except to assign a higher disability rating than the rating required by the VA Schedule. Dr. L__'s expert reports indicate in 2004, the Army would have rated the applicant's PTSD, associated anxiety, major depressive disorder, and overlapping or compounding TBI symptoms rated at 70 percent. A rating of 70 percent for a mental disorder is appropriate where a veteran experiences occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: Near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence), spatial disorientation, difficulty in adapting to stressful circumstances (including work or a work-like settings), and inability to establish and maintain effective relationships. uu. Dr. L__ has concluded the applicant's symptoms were worse in 2005 and 2004 than they are now. According to Dr. L__, the applicant suffers from: Irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, mood dyscontrol, poor planning, inflexible thinking, depressed mood, diminished interest, insomnia, intrusive thoughts and memories, a lack of insight, poor judgment, self-neglect, disinhibition, anxiety, and panic attacks. Dr. L__ has also concluded he has "significant impairment in social, occupational, and school functioning," and he experiences great difficulty coping with stressful circumstances, and often reacts with violence and threats. She also determined he "suffers from an inability to establish and maintain effective relationships." Because Dr. L__'s conclusions demonstrate he currently fits a 70 percent rating for mental disorders, it follows that he satisfied this rating in 2004 when his symptoms were even more severe. vv. Furthermore, while he would have been rated at least 70 percent for PTSD based on his symptoms that mirror those in the rating criteria, he might have qualified for a 100 percent rating because of the severity of his occupational and social impairment. Dr. L__'s finding that in 2005 he suffered from the worst case of PTSD she has ever seen, coupled with his extremely high “CAPS-I score of 130,” support this possibility. If he had been evaluated, he would have been rated 50 percent disabled for his prostrating headaches. A rating of 50 percent for headaches is appropriate when a veteran experiences "very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability." “BVA” decisions demonstrate a veteran who experiences at least two prostrating headaches per month should be rated 50 percent disabled. His symptomology satisfies the standard for a 50 percent rating because he experiences completely prostrating headaches about 2 to 3 times per month, as well as severe daily headaches, which are particularly severe and accompanied by a host of other symptoms at least eight times per month. These completely prostrating and severe daily headaches are capable of rendering him economically inadaptable, and significantly hamper his ability to work. ww. The applicant would also have been rated 10 percent for his other subjective symptoms of TBI. Since his fall from the guard tower, he has experienced a host of subjective symptoms of TBI aside from his headaches. Because his subjective symptoms would have contributed to his finding of unfitness, they should be considered in determining his overall compensable disability rating. Under the applicable regulations at the time, purely subjective complaints such as headaches, dizziness, insomnia, etc., are recognized as symptomatic of brain trauma, will be rated 10 percent and no more under diagnostic code 9304. Both Dr. R__ and Dr. L__ have recognized that as a result of his TBI, he suffers from intermittent blurred vision, intermittent dizziness, and constant hypersensitivity to light and tinnitus, all of which at times occur separate and apart from his headaches. Thus, he should have been assigned a 10 percent rating for these subjective symptoms. In addition, he should also receive a 40 percent rating for the separate and distinct manifestations of TBI as of October 2008. The VA instituted new TBI regulations and allowed all veterans with TBI to be rerated under this new system in October 2008. Under this new system, he would have received a 40 percent disability rating because, as Dr. R__ has concluded, his motor activity was moderate slowing due to apraxia. Finally, his disabilities were not noted at the time of entry on active duty, and these disabilities were caused by his military service. In addition, these disabilities are the direct result of his deployment to Iraq, they were "incurred in line of duty in time of war or national emergency," and were also "incurred in line of duty after 14 September 1978." Therefore, he meets the standard for medical retirement by reason of permanent disability. xx. The Board should award the applicant $104,818.14 in back retirement pay. When correcting medical records, the Board has the power to grant back retirement pay. As 10 U.S.C. § 1552 states, "[t]he Secretary concerned may pay...a claim for the loss of pay, allowances, compensation, emoluments, or other pecuniary benefits, or for the repayment of fine or forfeiture." At the latest, his retroactive medical retirement should take effect as of 30 June 2004, the date he sought help at the Fort Hood Mental Health Clinic. By this point, his PTSD, TBI, and headaches, individually and in combination, had made him unfit to perform the duties required of him. In addition, it was clear by 30 June 2004, and before, that he should have been medically retired. Therefore, he is entitled to back retirement pay from 30 June 2004 through 20 November 2012, the point at which he submitted an informal claim for VA benefits at the request of his father. yy. If the Board awards the applicant a retroactive medical retirement, it should further grant him a discharge upgrade to honorable. He would have received this discharge if he had been medically retired on 30 June 2004. At this point, his sole instance of misconduct was missing a morning formation, misconduct that was driven by PTSD and other disabilities. He had a history of honorable service in Iraq. More generally, by granting him a medical retirement, the Board would be recognizing his disabilities are a significant mitigating factor in his misconduct; in light of this, his service should be deemed honorable. In the alternative, the Board should change the applicant's narrative reason for separation to "Secretarial Authority." The Secretary of the Army may discharge Soldiers when "early separation is clearly in the best interest of the Army." If this Board denies his request for a retroactive medical retirement, for three reasons, the Board should instead change his narrative reason for separation, reentry code, separation code, and separation authority to reflect that he was discharged under "Secretarial Authority," and remove any indication that he was court-martialed. zz. First, it would have been clearly in the Army's best interest to remove him from the Army, even if he were not medically retired. Had his chain of command or the Fort Hood Mental Health Clinic recognized the extent of his disabilities, they would have determined it was not in the best interest of the applicant, other Soldiers, or the Army as a whole for him to continue to serve, and particularly to deploy. As explained above, many of his symptoms completely disabled him when they presented. Thus, he was a liability to both himself and his fellow Soldiers on and off the battlefield. Second, by instituting the changes discussed above, the Board will help remedy his disproportionately harsh punishment. As the ADRB has recognized, he received this punishment because the court-martial was unaware that he suffered from PTSD and TBI. Before he developed these disabilities, and particularly before his fall from the guard tower, he served honorably and was recognized as a top Soldier in his unit, gearing up to go out for Special Forces on the recommendation of his peers. His separation authority, separation code, reentry code, and narrative reason for separation indicate he was court-martialed; thereby continuing to punish him by branding him as a criminal. Third, if he served today, he would have received proper treatment, evaluation, and ultimately the medical retirement that he was entitled to receive. The Army's own internal evaluations of its procedures regarding PTSD, TBI, and the evaluation and treatment of disabilities more broadly, as well as Congress' evaluations of those procedures indicate Soldiers systematically suffered from poor mental health care in the early stages of Operation Iraqi Freedom (OIF). A 2006 Government Accountability Office report concluded "DOD cannot provide reasonable assurance that OEF [Operation Enduring Freedom]/OIF service members who need referrals [for further evaluation and treatment] receive them." The Army ultimately instituted many mechanisms to screen for PTSD and TBI and programs to prepare Soldiers to deploy or return from deployment. Were they in place when he was serving, these screening measures and programs would likely have prevented him from falling through the cracks. For these three reasons, if the Board denies his request for a retroactive medical retirement, he requests removal of references to the court-martial and correct his record to reflect he was discharged under "Secretarial Authority." 3. The Board should correct the applicant's military records to accurately reflect his honorable service. His separation documents do not accurately reflect his service. As the ADRB recently recognized, he served a combat tour in Iraq. He deployed near the in September 2003 and returned in April 2004. Therefore, item 12f (Foreign Service) of his DD Form 214 and other separation documents should be updated to reflect his combat tour in Iraq. In addition, he earned the medals and ribbons. 4. Counsel further states: a. The Board should restore the applicant's rank to SPC or, in the alternative, PFC. His reduction in rank was a key component of his Article 15 and a major part of his court-martial sentence. However, as discussed, his third chain of command and the court-martial did not know he suffered from PTSD and TBI. By restoring his rank, the Board would remove a punishment that, as other administrative bodies have recognized, is disproportionately harsh in light of mitigating circumstances. It would also ensure that his separation documents accurately reflect his overall character of service. b. The Board should grant the applicant an in-person hearing, which provides additional safeguards and fairness in the adjudication of applications. The opportunity to present his side of the case is of obvious value in reaching an accurate decision. In his case, a hearing would guarantee that he has a meaningful opportunity to be heard and ensure that his claims receive fair consideration based on the complete record. It would further allow the Board to examine and question him, expert witnesses, and lay witnesses in order to supplement the information contained in declarations, expert reports, and other exhibits. More generally, the Board's decision to grant a hearing would be consistent with well-established case law noting the "indispensable" nature of evidentiary hearings in securing procedural due process. Thus, the applicant respectfully requests this Board exercise discretion and grant him an in-person hearing. c. In conclusion, the applicant was not medically retired even though he suffered from severe PTSD and TBI. In addition, he received disproportionately harsh punishment that continues to hurt him. By restoring his rank, removing the aspects of his records that unjustly brand him as a criminal, the Board can ensure a disabled combat veteran receives the benefits, compensation, and discharge status he deserves. 5. Counsel provides the 45 documents that are identified in a List of Exhibits. 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 2 April 2003. He completed his initial entry training and was awarded MOS 31B (MP). 3. The Defense Finance and Accounting Service confirmed he received hostile fire pay/imminent danger pay (HFP/IDP) and combat zone tax exclusion (CZTE) for service in Kuwait from 1 October 2003 to 31 March 2004, a period of 6 months. 4. His Enlisted Record Brief (ERB), dated 7 September 2006, contains hand-written entries showing in Section III (Service Data) he was promoted to PFC on 31 October 2004. His ERB does not show he was promoted to SPC/E-4. His ERB also shows in Section VIII (Awards and Decorations) the NDSM and GWOTSM. 5. A DA Form 4187 (Personnel Action), dated 18 November 2005, shows the applicant departed AWOL on 16 November 2005. This DA Form 4187 shows his rank and grade as PFC/E-3. 6. A second DA Form 4187, dated 5 June 2006, shows the applicant surrendered to military authorities on 5 June 2006. 7. On 13 February 2006, court-martial charges were preferred against the applicant for violation of Article 85 (Desertion) of the Uniform Code of Military Justice (UCMJ). 8. On 23 October 2006, he was found guilty, in accordance with his plea, by a special court-martial of violation of Article 85 of the UCMJ. Specifically, on 16 November 2005, the applicant did, with the intent to avoid or shirk important duty, namely deployment to Iraq, quit his unit and remained absent in a desertion status until 5 June 2006. The sentence consisted of reduction to private/E-1, forfeiture of $849 for 4 months, confinement for 4 months, and a bad conduct discharge. 9. On 20 December 2007, the sentence having been affirmed and the provisions of Article 71(c) having been complied with, the bad conduct discharge was ordered executed. 10. Accordingly, he was discharged on 13 March 2008 as a result of a court-martial with a bad conduct discharge. His DD Form 214 shows in: a. item 12f, no foreign service credit; b. item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized), the Army Service Ribbon; c. item 14 (Military Education), the entry "None"; d. item 18 (Remarks), no entry for service in Iraq; e. item 26 (Separation Code), the entry "JJD"; f. item 27 (Reentry Code), the entry "4"; and g. item 28 (Narrative Reason for Separation), the entry "Court-Martial, Other." 11. The applicant's available military records are void of documentation indicating that a line of duty investigation was conducted to determine the circumstances surrounding the head injury he suffered in Iraq. 12. The applicant's available military records do not show he suffered from an unfitting medical condition during his active service. 13. The applicant’s available military records do not show he completed the following courses: * Combat Lifesaver Course * Personal Security Detail Training * Special Reaction Team Training * Fort Hood Military Police Orientation 14. On 8 September 2014, the applicant personally appeared before the ADRB requesting an upgrade of his bad conduct discharge. The ADRB, after carefully examining the applicant's record of service and hearing his testimony, determined that clemency was warranted based on the quality of his service, his combat service, and the strong indication of PTSD and TBI. Accordingly, the ADRB voted to grant clemency by upgrading the applicant's characterization of service to general, under honorable conditions. The ADRB also determined that a change in the reason for discharge was not authorized under the Federal statute. 15. During the processing of this case, a medical advisory opinion was obtained from the Army Review Boards Agency's Psychiatrist. It states: a. Documentation reviewed include the applicant's ABCMR application, his personal statement, a legal brief outlining his military and medical history, a civilian neurology evaluation, a civilian psychiatric evaluation, copies of his military separation documents, military medical documents, a VA ratings letter, his previous ADRB summary packet, and the military electronic medical record. b. The applicant indicates in his application and legal brief that he developed PTSD during his first deployment to Iraq. During this deployment, he worked as a turret gunner in addition to providing convoy security. He was exposed to multiple IED blasts and mortar attacks. During this deployment, he reports he fell 30 feet from a guard tower and incurred a laceration to his forehead. The applicant reports he was found unconscious lying on the ground after the fall. Upon awakening, he was dazed, confused, and spoke incoherently. He was seen by the unit medic who sutured his wound and gave him the day off. No other medical care was provided. c. The applicant states he has experienced problems with chronic headaches, impulsivity, nightmares, and irritability since the fall. He reports after returning from Iraq, he continued to have significant PTSD and TBI issues. He self-referred to behavioral health where he was evaluated by an enlisted mental health specialist, given the diagnosis of adjustment disorder, and was sent back to duty. His unit was getting ready to go back to Iraq at the time. He told his chain of command that he was not capable physically or mentally of returning to Iraq, but the unit did not listen to him. He went AWOL at this time to avoid returning to Iraq. d. The applicant's VA ratings letter, dated 29 September 2016, indicates he has a 70 percent rating due to PTSD, TBl, and major depressive disorder. His neurology report, dated 29 August 2015, performed by Dr. R__ diagnoses him with chronic migraines due to severe concussive injury with some signs of left hemispheric brain dysfunction. His psychiatric evaluation, dated 17 March 2014, performed by Dr. L__ diagnoses him with PTSD and major depressive disorder. Dr. L__ is of the opinion the applicant suffered from both of these disorders while he was on active duty. e. A review of his military records found no documentation of PTSD symptoms. There is no documentation of the applicant ever requiring psychiatric inpatient hospitalization or psychotropic medications. His medical record indicates he was seen for mental health intake on 30 June 2004. The intake was performed by an enlisted Army behavioral health specialist who diagnosed him with adjustment disorder. There is no evidence the applicant's intake was staffed with a psychologist or psychiatrist. The applicant’s intake documents show he was suffering from the following symptoms: impaired sleep; decreased appetite; decreased energy; increased anxiety and worry; feelings of sadness, rage and hopelessness; racing thoughts; frequent crying spells; increased heart rate; and increased respiratory rate. f. The only documentation available indicating the applicant had behavioral health problems is the mental health intake mentioned in the previous paragraph. There is no documentation of any PTSD symptoms in the applicant's records. The lack of documentation of PTSD symptoms in his military records, however, does not necessarily indicate he did not have PTSD. Per the applicant's report, he was very anxious and distressed after returning from Iraq. These feelings only intensified when he discovered his unit was going to redeploy to Iraq. His mental health evaluation dated 30 June 2004 diagnosed him with adjustment disorder. However, based on the symptoms documented during his mental health intake, it is clear the applicant was suffering from a diagnosis more severe than adjustment disorder, most likely PTSD. g. In conclusion, based on the information available at this time, there is sufficient evidence to state the applicant's PTSD is mitigating for the offenses which led to his discharge from the Army. PTSD is associated with avoidant behaviors such as going AWOL. Additionally, it appears from reviewing the record the applicant's behavioral health conditions were not duly considered during medical separation processing. The ARBA Psychiatrist recommends the applicant's record be referred to the Integrated Disability Evaluation System (IDES) for consideration of medical disability/retirement. 16. The medical advisory opinion was provided to the applicant to allow him the opportunity to provide additional comments or a rebuttal. However, no response was received. 17. The applicant and counsel submitted in support of this application/request several medical documents showing he was diagnosed with PTSD, which is related to his military service. VA documents were also submitted showing he is currently receiving service-connected disability compensation for PTSD, TBI, and major depressive disorder. REFERENCES: 1. Army Regulation 40-501 provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, rank, or rating. Performance of duty despite impairment would be considered presumptive evidence of physical fitness. 2. Army Regulation 635-40 establishes the PDES and sets forth policies, responsibilities, and procedures that apply 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. It provides for an MEB that is 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 qualifications for retention based on the criteria in Army Regulation 40-501, chapter 3. Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. a. Paragraph 2-1 provides that the mere presence of impairment does not of itself justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated. b. Paragraph 2-2b(1) provides that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his or her continued performance of duty (until he or she is referred to the PDES for evaluation for separation for reasons indicated above) creates a presumption that the member is fit for duty. Except for a member who was previously found unfit and retained in a limited assignment duty status in accordance with chapter 6 of this regulation, such a member should not be referred to the PDES unless his or her physical defects raise substantial doubt that he or she is fit to continue to perform the duties of his or her office, grade, rank, or rating. c. Paragraph 2-2b(2) provides that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that the member, in fact, was physically unable to adequately perform the duties of his or her office, grade, rank, or rating even though he or she was improperly retained in that office, grade, rank, or rating for a period of time and/or acute, grave illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability rendered him or her unfit for further duty. d. Paragraph 4-1 provides that the case of a Soldier charged with an offense under the UCMJ or who is under investigation for an offense chargeable under the UCMJ which could result in dismissal or punitive discharge, may not be referred for, or continue, disability processing unless: (1) The investigation ends without charges. (2) The officer exercising proper court-martial jurisdiction dismisses the charges. (3) The officer exercising proper court-martial jurisdiction refers the charge for trial to a court-martial that cannot adjudge such a sentence. e. Paragraph 4-2 provides that a Soldier may not be referred for, or continue, disability processing if under sentence of dismissal or punitive discharge. If the sentence is suspended, the Soldier’s case may then be referred for disability processing. If action to vacate the suspension is started after the case is forwarded for disability processing, the PEB serving the area must be promptly notified to stop disability processing. 3. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent and Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent. 4. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 5. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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. 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 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. 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 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. 9. 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 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. 10. On 25 August 2017 the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; traumatic brain injury (TBI); sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 11. 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. 12. Army Regulation 600-8-22 (Military Awards) states: a. The NDSM is awarded for honorable active service for any period between 27 July 1950 and 27 July 1954, 1 January 1961 and 14 August 1974, 2 August 1990 and 30 November 1995, and 11 September 2001 and a date to be determined. b. The ICM is awarded to members who served in direct support of OIF. The area of eligibility encompasses all the land area of the country of Iraq, the contiguous water area out to 12 nautical miles, and all air spaces above the land area of Iraq and above the contiguous water area out to 12 nautical miles. The ICM period of eligibility is on or after 19 March 2003 to 31 December 2011. A bronze service star is authorized for wear with this medal for participation in each credited campaign. Approved campaigns are: * Liberation of Iraq (19 March 2003-1 May 2003) * Transition of Iraq (2 May 2003-28 June 2004) * Iraqi Governance (29 June 2004-15 December 2005) * National Resolution (16 December 2005-9 January 2007) * Iraqi Surge (10 January 2007-31 December 2008) * Iraqi Sovereignty (1 January 2009-31 August 2010) * New Dawn (1 September 2010-31 December 2011) c. Service members who qualified for the GWOTEM by reason of service between 19 March 2003 and 28 February 2005 in an area for which the ICM was subsequently authorized will remain qualified for that medal. Upon application, any such service member may be awarded the ICM in lieu of the GWOTEM for such service. No service member will be entitled to both medals for the same act, achievement, or period of service. d. The GWOTSM is authorized for award to members of the Armed Forces of the United States who have participated in Global War on Terrorism operations outside of the areas of eligibility designated for award of the GWOTEM, Afghanistan Campaign Medal, or ICM. All Soldiers on active duty, including Reserve Component Soldiers mobilized or National Guard Soldiers activated, on or after 11 September 2001 to a date to be determined having served 30 consecutive days or 60 nonconsecutive days are authorized the GWOTSM. e. The OSR is awarded for successful completion of overseas tours. (1) A Frequently Asked Questions (FAQ) document from the U. S. Army Human Resources Command, Military Awards Branch, dated 22 January 2006, contains examples to show Soldiers' eligibility for awards while deployed to Iraq or Afghanistan. (2) The FAQ document shows that Iraq and Afghanistan are considered isolated areas where tour lengths have not been established by the Department of Defense. Soldiers who serve 11 cumulative months in a 24-month period or 9 months continuous in Iraq or Afghanistan receive credit for a completed short tour. 13. Army Regulation 635-5 (Separation Documents), in effect during the applicant's active duty service, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It provides standardized policy for preparation of the DD Form 214 and states in: a. item 12f, enter the total amount of foreign service completed during the period covered in item12c (Net Service This Period); b. item 13, list awards and decorations for all periods of service in the priority sequence specified in Army Regulation 600-8-22. Each entry will be verified by the Soldier’s records; c. item 14, list formal in-service (full-time attendance) training courses successfully completed during the period of service covered by the DD Form 214. Include title, length in weeks, and year completed. This information is to assist the Soldier in job placement and counseling; and d. item 18, for an active duty Soldier deployed to a foreign country with his or her unit during their continuous period of active service, enter the statement "SERVICE IN (name of country deployed) FROM (inclusive dates for example, YYYYMMDD-YYYYMMDD)." 14. According to the U.S. Army Combined Arms Center (USACAC) website, the MP course is 11 weeks in length. 15. Army Regulation 15-185 (ABCMR) provides that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. DFAS records confirm the applicant received HFP/IDP and CZTE for service in Kuwait from 1 October 2003 to 31 March 2004, a period of 6 months. DFAS records routinely show Kuwait as the country of deployment because it was the primary point of embarkation and debarkation for Soldiers deployed in support of OIF, although, as often was the case, all or a portion of that service was served in Iraq. The applicant's DD Form 214 does not show his foreign service in item 12f or the dates of his service in Iraq in item 18. 2. Based on his service in Iraq from 1 October 2003 to 31 March 2004, he is authorized the ICM with one bronze service star. This award is not shown on his DD Form 214. 3. The applicant is also authorized the GWOTSM for his active duty service outside of the forward deployed area. This award is not shown on his DD Form 214. 4. Based on his service prior to the misconduct that led to his separation, it appears he is authorized the NDSM. This award is not shown on his DD Form 214. 5. With respect to the GWOTEM, although his service in Iraq qualifies for this award, no service member will be entitled to both awards (the ICM and GWOTEM) for the same act, achievement, or period of service. The applicant has the option of requesting the GWOTEM in lieu of the ICM. 6. With respect to the OSR, the applicant did not serve 9 continuous months in Iraq. Therefore, he is not authorized the OSR for his service in Iraq. 7. The evidence shows he completed MP training in 2003. This course, which according to the USACAC website is 11 weeks in length, is not shown on his DD Form 214. 8. There is nothing in the available records that shows he completed the following courses: * Combat Lifesaver Course * Personal Security Detail Training * Special Reaction Team Training * Fort Hood Military Police Orientation 9. With respect to the upgrade of the applicant's discharge from general under honorable conditions to honorable, the evidence shows he was found guilty by a special court-martial of desertion, specifically, in that on 16 November 2005, with the intent to avoid hazardous duty (deployment to Iraq), he quit his unit and remained absent in a desertion status until 5 June 2006. He was sentenced to a bad conduct discharge. The evidence further shows on 8 September 2014, the ADRB granted clemency in the form of an upgrade to the characterization of his service to general under honorable conditions. The narrative reason for separation was not changed. 10. Any redress by this Board of the finality of a court-martial conviction is prohibited by law. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. 11. The available documentation reasonably supports the existence of PTSD at the time of the offense that led to his discharge. However, taking into consideration the length of his unauthorized absence during a period of war, it appears his service did not rise to that level meriting a fully honorable characterization of service. 12. With respect to the portion of the request that pertains to a separation/retirement for medical reasons, based on the available post-service medical evidence, it could be argued the applicant met the criteria for referral to the PDES prior to going AWOL. However, in accordance with Title 10, U.S. Code, section 1552, the ABCMR is not empowered to set aside a conviction. As such, and since his discharge resulted from his court-martial conviction, he is ineligible for processing through the PDES for possible medical retirement. 13. Based on paragraph 12 above, at this time, there is no basis to amend the applicant's DD Form 214 by changing the reason and authority for separation. 14. With respect to the portion of the request that pertains to a personal appearance before the Board. By regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by the Board or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided is sufficient to render a fair and equitable decision at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160000403 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160000403 18 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2