BOARD DATE: 31 August 2017 DOCKET NUMBER: AR20160001848 BOARD VOTE: ___x______ __x_____ ___x__ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 31 August 2017 DOCKET NUMBER: AR20160001848 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant's DD Form 214 for the period ending 9 December 2005 to show the characterization of service as "General, Under Honorable Conditions" and his rank/grade as specialist/E-4 with an effective date of 18 March 2005. ___________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: 31 August 2017 DOCKET NUMBER: AR20160001848 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 characterization of his service from under other than honorable conditions (UOTHC) to under honorable conditions (general). 2. The applicant states he served in a combat zone with honor and earned the Combat Infantryman Badge. He has Post-Traumatic Stress Disorder (PTSD) and requires an upgrade of his discharge be to receive help from the Department of Veterans Affairs (VA). 3. The applicant provides a medical statement. 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 18 March 2003. He completed training and he was awarded military occupational specialty (MOS) 11B (Infantryman). 3. Evidence shows he served in Kuwait and Iraq for the period 15 August 2004 through 22 July 2005 and he was promoted to the rank/grade of specialist/E-4 on 18 March 2005. 4. Two DA Forms 4197 (Personnel Action) show he was absent without leave (AWOL) from 7 September 2005 through 3 October 2005. 5. Four DA Forms 2823 (Sworn Statement), dated 4 October 2005 from the applicant, his company commander, and two sergeants (SGT), which show: a. The applicant states he used cocaine several times while on leave, from 1 August 2005 through 29 September 2005. b. The company commander states, on 29 September 2005, the applicant commander admitted to him that he used cocaine while on leave. The applicant was considered a flight risk and the commander confined him to the company area. c. The SGTs stated the applicant admitted to them that he used drugs several times while on leave and also while AWOL. The applicant told the SGTs the last time he used drugs was the morning of 29 September 2005. The applicant also informed the SGTs that while he was on leave and during his AWOL status he used cocaine and marijuana on a regular basis. 6. A memorandum, dated 13 October 2005, subject: Confirmed Urinalysis Test Results informed the applicant's commander the applicant's urine tested positive for cocaine on 30 September 2005. 7. Three DA Forms 4856 (Developmental Counseling Form) dated from 21-31 October 2005 show the applicant's chain of command counseled him for the below: * Signing back in off leave late * Disobeying a lawful and direct order * Being AWOL * Missing formation on numerous occasions * Failing a urinalysis * Not being at his place of duty * Leaving the installation for two days when his pass was revoked * Using drugs, possession of drug paraphernalia 8. Two DA Forms 4197 show he was absent without leave (AWOL) from 1 November 2005 through 10 November 2005. 9. On 15 November 2005, charges were preferred against the applicant for: a. on or about 7 September 2005, without authority, absenting himself from his unit at Fort Carson, CO, until on or about 29 September 2005; b. on or about 1 November 2005, without authority, absenting himself from his unit at Fort Carson, CO, until on or about 10 November 2005; c. on or about 27 September 2005 and 30 September 2005, wrongfully use cocaine; and d. on or about 31 October 2005, violate a lawful general regulation by wrongfully possessing drug paraphernalia. 10. On 18 November 2005, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ). He was also advised of the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations). In his request for discharge, he indicated: a. He understood he was being charged with violating the UCMJ and he fully understood the elements of the offense and he was making this request of his own free will and had not been coerced by any person whatsoever. He understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or a dishonorable discharge. b. He acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA. He also acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State law he elected to submit a statement on his own behalf. c. He stated his problems started upon his redeployment from Iraq. He contracted Methicillin-resistant Staphylococcus aureus disease (MRSA) while in Iraq and upon returning and going to the hospital, he was told that he was not going to live and would be quarantined, so, he ran. He stated he knew going AWOL was wrong but he was frightened. He turned himself in and stayed out of trouble until he began having problems with his first sergeant, and he left again. When he turned himself in, he asked to go to the hospital for help with his drug problem. 11. His immediate and intermediate commanders recommended approval of his discharge action with the issuance of an UOTHC characterization of service. 12. On 5 December 2005, subsequent to a legal review for legal sufficiency and consistent with the chain of command recommendations, the separation authority approved the applicant's request for voluntary discharge and directed that he be given an UOTHC discharge and be reduced to the lowest enlisted grade. On 9 December 2005, he was discharged accordingly. 13. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of court-martial with an UOTHC characterization of service. His DD Form 214 also shows he accumulated lost time under Title 10, U.S. Code, section 972, for the period(s) 7 September through 3 October and 1 November through 10 November 2005. 14. On 1 February 2010, the Army Discharge Review Board reviewed his discharge and determined it was both proper and equitable. The ADRB voted to deny his request for an upgrade. 15. The applicant provided a medical statement from psychiatrist, Dr. K_____, which indicated the applicant has received psychiatric care since 5 September 2007 for major depressive disorder, generalized anxiety disorder, panic disorder, and PTSD. The applicant’s AWOL period and subsequent discharge was attributed to traumatic combat events experienced in Ramadi, Iraq that caused him to "run" from the base shortly after returning from deployment. Since separating from the Army, he has experienced significant interpersonal and occupational difficulties to include drug and alcohol use, physical confrontations, petty theft, and social isolation. 16. On 30 November 2016, an advisory opinion was obtained from the Army Review Boards Agency Clinical Psychologist, who stated the totality of evidence supported mitigation of his misconduct. The advisory official reviewed the applicant's available service records and concluded that there was a nexus between the behavioral health condition and offenses, which led to the applicant’s separation from the Army. The applicant was diagnosed with depression during his time in service and supporting medical documentation was provided by a civilian psychiatrist indicating the applicant has been diagnosed and in treatment for his combat related behavioral health conditions. PTSD, anxiety, and depression are conditions, which can cause avoidant behaviors such as being AWOL and the use of substances for self-medication. Despite the use of behavioral health services since 2007, PTSD symptoms have continued to negatively impact his mood and functioning, to include social and occupational impairments. Given his impairment and need for continued supportive services, it is likely that PTSD mitigated the misconduct that led to his separation from active duty. 17. The applicant was provided a copy of the advisory opinion for review and comment. He did not respond. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 2. Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. The Diagnostic and Statistical Manual of Mental Disorders (DSM) is published by the American Psychiatric Association (APA) and it provides standard criteria and common language for the classification of mental disorders. In 1980, the APA added PTSD to the third edition of its DSM-III nosologic classification scheme. Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice. From an historical perspective, the significant change ushered in by the PTSD concept was the stipulation that the etiological agent was outside the individual (i.e., a traumatic event) rather than an inherent individual weakness (i.e., a traumatic neurosis). The key to understanding the scientific basis and clinical expression of PTSD is the concept of "trauma." 4. PTSD is unique among psychiatric diagnoses because of the great importance placed upon the etiological agent, the traumatic stressor. In fact, one cannot make a PTSD diagnosis unless the patient has actually met the "stressor criterion," which means that he or she has been exposed to an event that is considered traumatic. Clinical experience with the PTSD diagnosis has shown, however, that there are individual differences regarding the capacity to cope with catastrophic stress. Therefore, while most people exposed to traumatic events do not develop PTSD, others go on to develop the full-blown syndrome. Such observations have prompted the recognition that trauma, like pain, is not an external phenomenon that can be completely objectified. Like pain, the traumatic experience is filtered through cognitive and emotional processes before it can be appraised as an extreme threat. Because of individual differences in this appraisal process, different people appear to have different trauma thresholds, some more protected from and some more vulnerable to developing clinical symptoms after exposure to extremely stressful situations. 5. The DSM Fifth Revision (DSM-V) was released in May 2013. This revision includes changes to the diagnostic criteria for PTSD and acute stress disorder. The PTSD diagnostic criteria were revised to take into account things that have been learned from scientific research and clinical experience. The revised diagnostic criteria for PTSD include a history of exposure to a traumatic event that meets specific stipulations and symptoms from each of four symptom clusters: intrusion, avoidance, negative alterations in cognitions and mood, and alterations in arousal and reactivity. The sixth criterion concerns duration of symptoms; the seventh assesses functioning; and the eighth criterion clarifies symptoms as not attributable to a substance or co-occurring medical condition. 6. As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis and treatment of PTSD the Department of Defense (DOD) acknowledges that some Soldiers who were administratively issued an UOTHC discharge 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. 7. In view of the foregoing, on 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged 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. 8. 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? 9. Although the DOD acknowledges that some Soldiers who were administratively issued an UOTHC discharge may have had an undiagnosed condition of PTSD at the time of their discharge, it is presumed that they were properly discharged based upon the evidence that was available at the time. Conditions documented in the record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which PTSD or PTSD-related conditions may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the under other than honorable conditions characterization of service. Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of 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. DISCUSSION: 1. The applicant contends, in effect, that he should receive an upgrade of the characterization of his service to under honorable conditions (general) due to suffering from the effects of PTSD after deploying to a combat zone in Iraq while on active duty. He claims that PTSD was a mitigating factor for his misconduct, which resulted in his discharge UOTHC. 2. The applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial. The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. In doing so, he admitted guilt and waived his opportunity to appear before a court-martial. The characterization of service he received was commensurate with the reason for his discharge. 3. The applicant's record confirms he served in Iraq in MOS 11B. Upon his return to the United States, he twice decided to go AWOL and use illegal drugs on at least one occasion. The applicant's AWOL and drug and alcohol use is consistent with avoidance, one of the symptoms of PTSD. The presence of PTSD is often viewed as a causative factor in the misconduct leading to discharge. 4. The applicant provided a diagnosis of PTSD from a civilian psychiatrist who stated the applicant has received psychiatric care since September 2007 for major depressive disorder, generalized anxiety disorder, panic disorder, and PTSD. 5. Both the medical community and DOD now have a more thorough understanding of PTSD and its potential to serve as a causative factor in a Soldier's misconduct when the condition is not diagnosed and treated in a timely fashion. Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible recharacterization of their overall service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001848 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001848 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2