IN THE CASE OF: BOARD DATE: 19 December 2017 DOCKET NUMBER: AR20160005199 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 IN THE CASE OF: BOARD DATE: 19 December 2017 DOCKET NUMBER: AR20160005199 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 his DD Form 214 for the period ending 18 May 2006 showing his service was characterized as honorable. ___________x________________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. IN THE CASE OF: BOARD DATE: 19 December 2017 DOCKET NUMBER: AR20160005199 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 his under honorable conditions (general) discharge be upgraded to an honorable discharge. 2. The applicant states, in effect, he suffered from a disease that resulted from his service in Iraq. He suffers from post-traumatic stress disorder (PTSD), substance use disorder, depressive disorder, and adjustment disorder with depressed mood. He kept to himself a lot, in fear that if he talked about his nightmares and flashbacks he would be labeled as weak and would not be promoted. 3. The applicant provides three certificates of training and three letters of support. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 6 November 2003. He completed his initial entry training and was awarded military occupational specialty (MOS) 88M (Motor Transport Operator). The highest rank/grade he attained during his period of active service was specialist (SPC)/E-4. 3. The applicant served in Iraq from on or about 12 September 2004 through on or about 4 October 2005. 4. A DD Form 2329 (Record of Trial by Summary Court-Martial) shows before a summary court-martial at Fort Lewis, WA, the applicant was found guilty on or about 10 February 2006 of the following violations of the Uniform Code of Military Justice (UCMJ): a. Charge I, five specifications of violating Article 86 of the UCMJ; specifically, to wit: without authority failing to go to his prescribed place on duty on or about 18 November 2005, 30 November 2005, 5 December 2005, and 14 December 2005, and being absent without leave (AWOL) from on or about 16 December 2005 until on or about 31 December 2005. b. Charge II, one specification of violating Article 90 of the UCMJ; specifically, to wit: disobeyed the lawful order from a superior commissioned officer on or about 6 December 2005. c. Charge III, two specifications of violating Article 91 of the UCMJ; specifically, to wit: disobeying a lawful order from a superior noncommissioned officer on or about 2 December 2005 and on or about 14 December 2005. 5. His sentence was adjudged on 10 February 2006, consisting of reduction to the rank/grade of private (PV1)/E-1, confinement for 30 days, and forfeiture of $849.00 pay for one month suspended for 180 days. 6. A DA Form 3822-R (Report of Mental Status Evaluation) shows the applicant underwent a mental status evaluation by a licensed clinical psychologist on 27 March 2006. He was determined to be fully alert and oriented. His affect and mood were unremarkable, with clear thought in process and content. He had the mental capacity to understand and participate in proceedings deemed appropriate by his command. He was mentally responsible and met medical retention requirements. 7. The applicant's immediate commander notified him on 18 April 2006 that she was initiating action to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, by reason of misconduct – commission of a serious offense. His commander cited as the reason for her proposed action his failing to go at the time prescribed to his appointed place of duty on several occasions and his AWOL period that resulted in his conviction by a summary court-martial. She recommended the applicant receive an under honorable conditions (general) discharge. The applicant acknowledged receipt of the notification memorandum the same day. 8. After consulting with counsel on 26 April 2006, the applicant requested representation by counsel and elected to provide statements in his own behalf; however, these statements were not available for review. He further acknowledged that he may encounter substantial prejudice in civilian life if he received a general discharge. 9. The applicant's immediate commander recommended on 2 May 2006 that he be separated from the service under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct - commission of a serious offense. She cited his failure to go to his appointed place of duty and his AWOL resulting in a summary court-martial as the reasons for recommending separation. 10. The separation authority approved the recommendation for the applicant's separation on 2 May 2006, under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of his commission of a serious offense. The separation authority directed the applicant be separated with a general discharge. 11. The applicant was discharged on 18 May 2006. His DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – serious offense. His service was characterized as under honorable conditions (general). His DD Form 214 further confirms he completed 2 years, 5 months, and 28 days of net active service and he had lost time from 16 December 2005 through 30 December 2005, a period of 15 days. 12. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. The ADRB determined that his discharge was both proper and equitable and denied his request for an upgrade on 7 February 2013. 13. The Director, Case Management Division (CMD), Army Review Boards Agency (ARBA), sent a letter to the applicant on 10 July 2017, requesting medical documentation in support of his contention that he suffers from PTSD and other medical conditions. He did not respond to this request. 14. In connection with the processing of this case, an advisory opinion was obtained on 18 August 2017 from an ARBA Clinical Psychologist, who opined: a. A review of the applicant's electronic medical record (AHLTA) revealed diagnoses of adjustment disorder, insomnia, and psychoactive substance abuse dependence, with the diagnoses being obtained after the applicant's deployment to Iraq. b. The applicant's paper service treatment record was not available for review from the National Personnel Records Center (NPRC) at the National Achieves and Records Administration (NARA). c. The applicant's interactive Personnel Electronic Records Management System (iPERMS) records were available. The separation file in iPERMS contained a physical exam dated 15 March 2006 that assigned a profile of "111111" but also referenced nightmares, depression, worry, and PTSD. A Mental Status Exam dated 27 March 2006 found him fit for duty, to be able to understand and participate in administrative proceedings and also judged him to meet Army medical retention requirements. d. Limited review of VA (Veteran's Administration) records through the JLV (Joint Legacy Viewer) shows the VA has rated the applicant as 100 percent service-connected disabled. His VA diagnoses include other stimulant use, unspecified, with stimulant induced mood disorder; PTSD; antisocial personality disorder; major depressive disorder, recurrent; homelessness; other stimulant abuse; alcoholism; cocaine dependence; cannabis abuse; depression not otherwise specified; polysubstance dependence; and insomnia. e. The applicant has his first VA diagnosis of PTSD on his VA problem list on 12 April 2007. References to PTSD symptoms occur during his Army service and after his deployment to Iraq (12 September 2004 to 4 October 2005). As early as 9 January 2006, the applicant endorsed that he had PTSD symptoms, but they were at that point described as a "minor concern." The misconduct that led to most of the applicant's difficulties occurred in November and December 2005 when he had instances of disobeying senior officers and noncommissioned officers and being AWOL that culminated in a Summary Court-Martial that found him guilty on three specifications. f. His post-service diagnosis by VA, with PTSD symptoms expressed during Army service, reasonably support PTSD or another boardable behavioral health condition existed at the time of his military service. g. The applicant met medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, and following the provisions set forth in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) per his separation physical. h. The applicant's medical conditions were duly considered during medical separation processing. A review of the available documentation found evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. i. Based on the information available for review at the time, the applicant had mitigating medical or behavioral health condition(s) for the offenses which led to his separation from the Army. 14. A copy of the advisory opinion was forwarded to the applicant on or about 18 August 2017, for information and to allow him the opportunity to submit comments or a rebuttal. He did not respond. 15. The applicant provides: a. Three Certificates of Completion from "New Directions for Veterans" in the areas of Wellness Recovery Action Plan, Seeking Safety, and Inclusive Recovery. b. Three letters of support: (1) A letter from his Case Manager, New Directions for Veterans, Los Angeles, CA, undated, states the applicant is a member of the facility which is a residential treatment and transitional housing provider for homeless veterans. He additionally participates in self and group classes and sessions to improve his emotional, spiritual, and physical health. (2) A letter of support from Pastor M.J., dated 15 January 2016, who states the applicant is an active participant in his church and a person of good moral character. (3) A letter of support from a Mr. D.W., dated 12 February 2016, who attests to his adjustment and working at his 12-step recovery plan at the VA. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions (UOTHC) is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. 2. 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." 3. 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. 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 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 (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 6. The acting Under Secretary of Defense for Personnel and Readiness provided clarifying guidance on 25 August 2017, which expanded the 2014 Secretary of Defense memorandum, that directed the BCM/NRs and DRBs to give liberal consideration to veterans looking to upgrade their less-than-honorable discharges by expanding review of discharges involving diagnosed, undiagnosed, or misdiagnosed mental health conditions, including PTSD; traumatic brain injury; or who reported sexual assault or sexual harassment. DISCUSSION: 1. The applicant requests that his under honorable conditions (general) discharge be upgraded to an honorable discharge. 2. The evidence of record shows he was charged with violations of the UCMJ and was found guilty by a summary court-martial for failure to go to his appointed place of duty on numerous occasions, a 15-day period of AWOL, and two specifications of disobeying lawful orders of both non-commissioned and commissioned officers. Following a period of confinement, his chain of command initiated separation actions in accordance with Army Regulation 635-200, by reason of misconduct - commission of a serious offense. 3. The available evidence shows the applicant was properly and equitably discharged in accordance with applicable regulations. There is no indication of procedural errors that would have jeopardized his rights. All requirements of law and regulation were met, and his rights were fully protected throughout the separation process. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority directed a general discharge based on the Soldier's overall record. 4. As noted by the ARBA Psychologist, based on the available medical documentation and evidence, the applicant's PTSD was diagnosed by the VA after his separation from the service; however, PTSD symptoms were also noted as a "minor concern" during his evaluation after his deployment to Iraq. 5. Therefore, following an assessment of the applicant's case and evidence, and considering that his misconduct occurred after his deployment to Iraq, the ARBA Psychologist opined the applicant had a medical or mental health condition(s) that mitigated the misconduct for which he was discharged. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005199 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160005199 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2