BOARD DATE: 14 September 2017 DOCKET NUMBER: AR20160001418 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: 14 September 2017 DOCKET NUMBER: AR20160001418 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: 14 September 2017 DOCKET NUMBER: AR20160001418 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 general discharge and correction of his records to show he was medically retired based on unfitting medical conditions. 2. The applicant states he was diagnosed with post-traumatic stress disorder (PTSD) and an anxiety disorder, not otherwise specified (NOS). His medical conditions worsened and directly contributed to an off-post incident (an altercation) for which he was discharged for misconduct rather than being processed through the Integrated Disability Evaluation System (IDES). He states he entered active service in 2005 and served honorably during two continuous periods of active service (i.e., an enlistment and a reenlistment). However, the characterization of his service forces him to fight with the Department of Veterans Affairs (VA) for medical care. He adds that a correction of his records will allow him to receive the medical care he deserves. 3. The applicant provides copies of his: * Medical Evaluation Board (MEB) proceedings * DA Form 3822 (Report of Mental Status Evaluation) * Informal Physical Evaluation Board (PEB) Proceedings (last page) * memorandum for the Administrative Separation Authority * Summary of Administrative Separation Board (ASB) proceedings * DD Form 214 (Certificate of Release or Discharge from Active Duty) * VA Disability Evaluation System rating and statement in support of claim CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army (RA) on 1 November 2006 for a period of 3 years. He was awarded military occupational specialty 88N (Transportation Management Coordinator). His records also show he: * served in Iraq from 11 April 2007 to 5 July 2008 * reenlisted in the RA on 2 July 2008 for a period of 5 years * served in Korea from December 2008 to December 2010 * was promoted to sergeant/pay grade E-5 on 1 October 2009 * was reduced to specialist/pay grade E-4 on 20 August 2010 * served in Afghanistan from 1 August 2011 to 1 July 2012 * reenlisted in the RA on 28 September 2012 for a period of 3 years * was reduced to private first class/pay grade E-3 on 9 October 2014 2. On 19 December 2014, the applicant was reprimanded by the Commanding General (CG), Headquarters, 310th Sustainment Command (Expeditionary), Fort Hood, TX, for assault on a public servant, resisting arrest, and public intoxication on 3 December 2014. a. The applicant acknowledged receipt of the written reprimand. He did not submit matters for consideration within the allotted 10-day calendar period. b. On 8 January 2015, after reviewing the facts and circumstances pertaining to the applicant's case, the CG directed the reprimand be filed permanently in the applicant's Official Military Personnel File. 3. The applicant’s complete administrative separation packet is not in his available military personnel record. 4. Headquarters, III Corps, Fort Hood, TX, memorandum, dated 31 July 2015, subject: Separation Under Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), Chapter 14 (Separation for Misconduct), paragraph 14-12c (Commission of a Serious Offense) [pertaining to the applicant], shows Lieutenant General S__ B. M____, CG, considered the applicant's separation packet, including the recommendations of the chain of command and the recommendations of the MEB to have the applicant's case referred to a PEB. a. The CG disapproved the MEB’s recommendation and approved the findings and recommendation of the ASB. He found the applicant's medical condition was not the direct or substantial contributing cause of the misconduct. Further, he found no other circumstances of the applicant's case warrant disability processing instead of administrative separation. b. He directed the applicant be discharged under the provisions of (UP) AR 635-200, chapter 14, paragraph 14-12c, based on commission of a serious offense, and the issuance of a general, under honorable conditions characterization of service. 5. The applicant's DD Form 214 shows he was discharged on 19 August 2015 UP AR 635-200, paragraph 14-12c, based on misconduct (serious offense) with service characterized as under honorable conditions (general). He completed 8 years, 9 months, and 19 days of net active service this period. Item 18 (Remarks), show he had continuous honorable active service from 1 November 2006 through 27 September 2012 and “Member Completed First Full Term of Service.” 6. In support of his application the applicant provides the following documents: a. MEB Narrative Summary pertaining to the applicant that was prepared based on an appointment on 20 August 2014. It shows the following conditions did not meet medical retention standards: chronic left shoulder impingement; bilateral ankle sprain, recurrent; allergic rhinitis; lower back strain, chronic; left great toe contusion; right patellofemoral syndrome with left knee strain when right knee flairs; migraine headaches; and insomnia. b. DA Form 3822 (Report of Mental Status Evaluation), dated 3 September 2014, pertaining to the applicant that shows the following diagnoses: Axis I: Mood Disorder NOS; Axis II: Deferred; Axis III: Shoulder Impingement. It also shows in the "Behavioral Health Provider's Signature" block the entry, "Invalid approval." c. Last page of a DA Form 199 (Informal PEB Proceedings), dated 16 December 2014, that shows "70% [percent] combined with 10% equals 73% which rounds to 70%." The PEB recommended placement on the temporary disability retired list. d. A memorandum, from Headquarters, Carl R. Darnall Army Medical Center, Fort Hood, TX, subject: Administrative Separation Authority, Fort Hood TX, dated 16 July 2015, shows the Psychiatrist, Embedded Behavioral Health, confirmed the applicant had been diagnosed with PTSD, mood disorders NOS (with prominent elements of anger and depression), and chronic insomnia. All of his diagnoses were deployment related. e. Summary of Proceedings of the ASB that convened on 21 July 2015 shows the applicant was advised of his rights, declined counsel, and was present during all open sessions of the board. He described financial and family problems with his wife and also with the mother of his first child. He testified that, while serving in Korea, he was called to the commander's office. After being chastised about smiling he states he "blacked out" and did not remember what happened after that. He also described the incident on 3 December 2014. The ASB found the circumstances outlined in the notification of separation for misconduct (serious offense) that occurred on 3 December 2014 in which the applicant got into an altercation with police officers and a civilian and resisted arrest were supported by a preponderance of the evidence. The ASB recommended the applicant be separated with a characterization of service of general, under honorable conditions. f. VA Disability Evaluation System Proposed Rating, dated 25 November 2014, that shows the VA proposed the following disability ratings: * PTSD with unspecified depressive disorder and insomnia – 70% * left shoulder (non-dominant), impingement with injury to tendons of the rotator cuff – 10% * chronic low back strain – 10% * right knee patellofemoral syndrome – 10% * left knee strain – 10% * right ankle, recurrent sprain – 10% * left ankle, recurrent sprain – 0% * left great toe contusion – 0% * allergic rhinitis – 0% * migraine headaches – 0% 7. In the processing of this case, an advisory opinion was obtained from the medical staff, Army Review Boards Agency (ARBA), dated 24 January 2017. a. The staff psychologist reviewed the records submitted by the applicant as evidence in support of his application. The ARBA medical advisor stated the existence of the applicant's PTSD and depression is not in dispute because, around the time of his discharge, an MEB recommended he be placed on the temporary disability retired list. Additionally, the VA rated his PTSD at 70% and granted him a combined service-connected disability rating of 80% as of 25 November 2014. b. Clinical medical records show the applicant received inpatient treatment for PTSD. He was discharged with chronic PTSD, alcohol use disorder, and cannabis use disorder on 2 June 2015. c. The ARBA medical advisor found the available records demonstrate the applicant had a boardable behavioral health condition at the time of his military service; he did not meet medical retention standards; and the available records support the existence of a mitigating mental health condition. He added there is a mitigating mental-health condition; however, it did not fully mitigate the misconduct in question. d. He concluded the applicant did not met medical retention standards in accordance with AR 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), and following the provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant's era of service. (1) The applicant's medical condition was considered at the time of his discharge. (2) A review of available documentation did discover evidence of mental health considerations that may be relevant to the question of medical retirement. A causal nexus between PTSD and other behavioral health conditions (depression) was discovered, but it did not fully mitigate the applicant's violent behavior. 8. On 24 January 2017, the applicant was provided a copy of the ARBA advisory opinion to allow him the opportunity to submit comments or a rebuttal. The applicant stated he agrees with the findings in the second paragraph in item 5 (Brief Summary) of the ARBA medical advisory. a. He disagreed with the medical advisor's "ill" description of the incident on 7 July 2010 involving him and his commander as being inaccurate. He states he did not assault the commander; he lunged at him (with a pair of scissors). b. He also disagreed with the medical advisor's "shallow" description of the incident on 3 December 2014 which led to his arrest. He offers information to provide context to the situation. c. He invites the Board to consider the additional information he provides. He states he served in the U.S. Army for almost 9 years. Two noncommissioned officers who testified at the ASB responded affirmatively when asked if they would retain the applicant as a Soldier. He asks the Board for justice in his case. REFERENCES: 1. PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster. The Diagnostic and Statistical Manual of Mental Disorders (DSM) is published by the American Psychiatric Association (APA) and it provides standard criteria and common language for the classification of mental disorders. In 1980, the APA added PTSD to the third edition of its DSM-III nosologic classification scheme. Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice. From an historical perspective, the significant change ushered in by the PTSD concept was the stipulation that the etiological agent was outside the individual (i.e., a traumatic event) rather than an inherent individual weakness (i.e., a traumatic neurosis). The key to understanding the scientific basis and clinical expression of PTSD is the concept of "trauma." 2. PTSD is unique among psychiatric diagnoses because of the great importance placed upon the etiological agent, the traumatic stressor. In fact, one cannot make a PTSD diagnosis unless the patient has actually met the "stressor criterion," which means that he or she has been exposed to an event that is considered traumatic. Clinical experience with the PTSD diagnosis has shown, however, that there are individual differences regarding the capacity to cope with catastrophic stress. Therefore, while most people exposed to traumatic events do not develop PTSD, others go on to develop the full-blown syndrome. Such observations have prompted the recognition that trauma, like pain, is not an external phenomenon that can be completely objectified. Like pain, the traumatic experience is filtered through cognitive and emotional processes before it can be appraised as an extreme threat. Because of individual differences in this appraisal process, different people appear to have different trauma thresholds, some more protected from and some more vulnerable to developing clinical symptoms after exposure to extremely stressful situations. 3. The DSM Fifth Revision (DSM-5) was released in May 2013. This revision includes changes to the diagnostic criteria for PTSD and Acute Stress Disorder. The PTSD diagnostic criteria were revised to take into account things that have been learned from scientific research and clinical experience. The revised diagnostic criteria for PTSD include a history of exposure to a traumatic event that meets specific stipulations, along with symptoms from each of four symptom clusters: intrusion, avoidance, negative alterations in cognitions and mood, and alterations in arousal and reactivity. The sixth criterion concerns duration of symptoms; the seventh assesses functioning; and the eighth criterion clarifies symptoms as not attributable to a substance or co-occurring medical condition. 4. As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis, and treatment of PTSD the Department of Defense (DOD) acknowledges that some Soldiers who were administratively discharged under other than honorable conditions (UOTHC) may have had an undiagnosed condition of PTSD at the time of their discharge. It is also acknowledged that in some cases this undiagnosed condition of PTSD may have been a mitigating factor in the Soldier's misconduct which served as a catalyst for their discharge. Research has also shown that misconduct stemming from PTSD is typically based upon a spur of the moment decision resulting from temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues for an extended period of time. 5. In view of the foregoing, on 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 6. BCM/NRs are not courts, nor are they investigative agencies. Therefore, the determinations will be based upon a thorough review of the available military records and the evidence provided by each applicant on a case-by-case basis. When determining if PTSD was the causative factor for an applicant's misconduct and whether an upgrade is warranted, the following factors must be carefully considered: * Is it reasonable to determine that PTSD or PTSD-related conditions existed at the time of discharge? * Does the applicant's record contain documentation of the occurrence of a traumatic event during the period of service? * Does the applicant's military record contain documentation of a diagnosis of PTSD or PTSD-related symptoms? * Did the applicant provide documentation of a diagnosis of PTSD or PTSD-related symptoms rendered by a competent mental health professional representing a civilian healthcare provider? * Was the applicant's condition determined to have existed prior to military service? * Was the applicant's condition determined to be incurred during or aggravated by military service? * Do mitigating factors exist in the applicant's case? * Did the applicant have a history of misconduct prior to the occurrence of the traumatic event? * Was the applicant's misconduct premeditated? * How serious was the misconduct? 7. Although DOD acknowledges that some Soldiers who were administratively discharged UOTHC may have had an undiagnosed condition of PTSD at the time of their discharge, it is presumed that they were properly discharged based upon the evidence that was available at the time. Conditions documented in the record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which PTSD or PTSD-related conditions may be reasonably determined to have existed at the time of discharge; those conditions will be considered potential mitigating factors in the misconduct that caused the UOTHC characterization of service. Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of UOTHC. Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. 8. AR 635-40 sets forth policies, responsibilities, and procedures in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Separation by reason of disability requires processing through IDES. a. Chapter 3 (Policies), paragraph 3-5 (Use of the VA Schedule for Rating Disabilities), shows that only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. b. Chapter 4 (Procedures), paragraph 4-10, shows that MEBs are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualification for retention based on criteria in AR 40-501, chapter 3. If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB. 9. Title 10, United States Code, shows: * section 1201 provides for the physical disability retirement of a member who has a disability rated at least 30 percent * section 1203 provides for the physical disability separation with severance pay of a member who has less than 20 years of service and a disability rated at less than 30 percent 10. Manual for Courts-Martial (MCM), United States (2012 Edition), Part IV (Punitive Articles), lists Article 92 (Resistance, flight, breach of arrest, and escape) and Article 128 (Assault) as serious offenses punishable by court-martial. 11. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 1 (General Provisions), paragraph 1-33 (Disposition through medical channels), except in separation actions under chapter 10 (For the Good of the Service) and as provided (below), disposition through medical channels takes precedence over administrative separation processing. (1) When the medical treatment facility (MTF) commander or attending medical officer determines that a Soldier being processed for administrative separation under chapter 14 does not meet the medical fitness standards for retention, he/she will refer the Soldier to an MEB. The administrative separation proceedings will continue, but final action by the separation authority will not be taken pending the results of the MEB. (2) If the MEB findings indicate that referral of the case to a PEB is warranted for disability processing under the provisions of AR 635-40, the MTF commander will furnish copies of the approved MEB proceedings to the Soldier's General Court-Martial Convening Authority (GCMCA) and unit commander. The GCMCA may direct, in writing, that the Soldier be processed through the physical disability system when action under the Uniform Code of Military Justice has not been initiated, and one of the following has been determined: (a) The Soldier's medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative elimination. (b) Other circumstances of the individual case warrant disability processing instead of further processing for administrative separation. (3) The authority of the GCMCA to determine whether a case is to be processed through medical disability channels or under administrative separation provisions will not be delegated. (4) The GCMCA's signed decision to process a Soldier through the physical disability system will be transmitted to the MTF commander as authority for referral of the case to a PEB. b. Chapter 3, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. c. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. The conditions that subject Soldiers to discharge include the commission of a serious military or civil offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the MCM. (Resisting arrest and assault are considered serious offenses under the MCM.) (1) Action will be taken to separate a Soldier for misconduct when it is clearly established that: * despite attempts to rehabilitate or develop him/her as a satisfactory Soldier, further effort is unlikely to succeed * rehabilitation is impracticable or the Soldier is not amenable to rehabilitation (as indicated by the medical or personal history record) (2) A discharge UOTHC is normally considered appropriate. However, the separation authority may direct a general discharge if such is merited by the member's overall record. 12. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant contends his general discharge should be upgraded to honorable and corrected to show he was medically retired based on unfitting medical conditions, including PTSD. 2. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards and BCM/NRs to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional. a. This policy provides for the upgrade of an UOTHC characterization of service consistent with the overall character of service during the period under review as mitigated by the (then) undiagnosed medical condition. An upgrade of the characterization of service to general, under honorable conditions offers the former Soldier eligibility for veterans' benefits. b. The applicant was not discharged UOTHC; he was administratively discharged under honorable conditions. 3. Records show the applicant was diagnosed with PTSD while on active duty and his case was referred to an MEB. a. The ARBA staff psychologist concluded the applicant did not met medical retention standards that were applicable to the applicant's era of service. b. The ARBA staff psychologist discovered a causal nexus between PTSD and other behavioral health conditions (depression); however, he found it did not fully mitigate the applicant's violent behavior related to the offenses which led to his separation from the Army for misconduct. c. He also noted the applicant's medical condition was considered at the time of discharge. 4. The evidence of record shows the applicant continued to process through the IDES when administrative separation proceedings were initiated and he continued processing through the IDES in accordance with the governing Army regulation. a. The separation authority did not take action on the applicant's administrative separation until after the results of the MEB were finalized. b. The GCMCA disapproved the recommendation of the MEB and approved the findings and recommendation of the ASB. The GCMCA directed the applicant be discharged UP AR 635-200, chapter 14, paragraph 14-12c, for misconduct based on commission of a serious offense, and that he be issued a general, under honorable conditions characterization of service. 5. The applicant's discharge for misconduct (serious offense) UP AR 635-200 was administratively correct. All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. 6. A UOTHC discharge is normally considered appropriate for a discharge due to misconduct based on commission of a serious offense. a. The applicant’s chain of command recommended approval of the general discharge. In addition, the ASB recommended the applicant be discharged under honorable conditions. The evidence of record shows the chain of command and the ASB considered all the evidence presented, including the applicant's complete record of service and his MEB proceedings, in mitigation of his misconduct. b. The separation authority approved the discharge with the recommended characterization of service. In addition, item 18 of the applicant's DD Form 214 shows the period of his continuous honorable active service (from 1 November 2006 through 27 September 2012). c. The evidence of record shows the characterization of the applicant's service was carefully considered. During the period under review (i.e., from the date of his last reenlistment in the RA on 28 September 2012), the applicant committed serious offenses that involved resisting arrest, and assault on police officers, and a civilian. In addition, he was reduced in rank/grade. 7. The evidence of record shows the VA has granted the applicant disability compensation for several service-connected medical conditions. The VA provides compensation for disabilities which it determines were incurred in or aggravated by active military service, including those that are detected after discharge, and which impair the individual's industrial or social functioning. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001418 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001418 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2