BOARD DATE: 10 May 2018 DOCKET NUMBER: AR20160007149 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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: 10 May 2018 DOCKET NUMBER: AR20160007149 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 under other than honorable conditions (UOTHC) discharge to an honorable discharge. 2. The applicant states that his request is submitted under the Department of Defense (DoD) policy change, dated 3 September 2014, that provides for review of a discharge based on a diagnosis of post-traumatic stress disorder (PTSD). a. He states that he enlisted in the U.S. Army in 1991. He received three honorable discharge certificates from the three times he reenlisted. He also received numerous awards and decorations for his professionalism. b. He states that he deployed twice to Iraq in support of Operation Iraqi Freedom: from May 2003 to August 2004 and from July 2005 to August 2006. He experienced most of the traumatic events during his first deployment, which included seeing burning bodies and conducting post-blast, crater analysis from rocket and mortar attacks. He also conducted patrols throughout Baghdad and the surrounding towns distributing hand bills explaining the Coalition's presence in Iraq. The things he saw and experienced remain in his mind today. c. He states he never received any punishment during his military service until allegations were lodged against him in 2006, which led to his discharge. (1) He deployed (from Germany) and in-processed at Camp Arifjan, Kuwait, on or about 20 March 2006. He was apprehended by two agents of the U.S. Army Criminal Investigation Division (CID) Command. The female agent searched him and the male agent went to recover his personal bags. He was not told the reason he was being detained. He was transported to Camp Buehring, Kuwait, where he arrived about 45 minutes later. (2) He was placed in an interrogation room alone with the female CID agent who had searched him. She questioned him for about 30 minutes. (The applicant questions why a female agent was allowed to search and interrogate him without another agent being present.) He states that he was not aware of any recording devices being present. He was instructed to type his statement. After the CID agent read his statement she made changes to his statement. Also, when she asked him questions, she changed his answers, as well. He told the agent he would not sign the statement because he did not write it. The agent told him it did not matter whether he signed the statement or not because it would hold up in court. (3) During the questioning he was coerced into admitting he had downloaded some images of child pornography onto his home computer and then brought them with him to Kuwait. (His wife is a Germany national and their home was located in the German community.) He was asked for consent for CID agents to search his home in Germany. He states the Status of Forces Agreement requires the German police to be present anytime the military police arrive at a house in the German community. He asserts no German police were present when the CID agents arrived at his house. The CID agents conducted a search of his residence and began looking at pornographic images while his wife and 12 year old son were both present. d. He was discharged from the U.S. Army on 25 August 2006. After returning to the United States he was diagnosed with PTSD and placed on medication to assist with the symptoms of depression. 3. The applicant provides two self-authored statements (summarized above), two Reports of Mental Status Evaluation, and two letters. 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 (RA) on 27 March 1991 for a period of 4 years. Upon completion of training he was awarded military occupational specialty 13F (Fire Support Specialist). 3. Through three reenlistments (on 27 July 1994, 12 August 1997, and 4 March 2000), he continued to serve on active duty in the RA. a. He was promoted to sergeant/pay grade E-5 on 4 June 1999. b. He deployed to – * Iraq – 1 May 2003 to 29 July 2004 * Kuwait – 17 November 2005 to 23 May 2006 * Iraq – 24 May 2006 to 19 August 2006 4. A review of the applicant's military personnel records failed to reveal a copy of a DD Form 458 (Charge Sheet). 5. On 31 July 2006, the applicant consulted with legal counsel, who informed him that he was pending trial by court-martial. He was also informed of the charges against him for violating the Uniform Code of Military Justice (UCMJ) – * Article 92 – Failure to Obey a Lawful Order * Article 197 – False Official Statement * Article 134 (General Article) – Commission of an Offense to the Prejudice of Good Order and Discipline in the Armed Forces or of a Nature to Bring Discredit Upon the Armed Forces a. He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial. b. He voluntarily requested discharge for the good of the service in lieu of trial by court-martial. He also acknowledged he understood that, if his request for discharge was accepted, he might be discharged UOTHC. c. By submitting his request for discharge he acknowledged that he was guilty of the charges against him or of (a) lesser included offense(s) therein contained, which authorized the imposition of a bad conduct or dishonorable discharge. The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge. d. He was advised that he might be – * deprived of many or all Army benefits * ineligible for many or all benefits administered by the Veterans Administration * deprived of his rights and benefits as a veteran under both Federal and State laws e. He was also advised that he could submit statements in his own behalf. He submitted a statement with his request for discharge requesting a general, under honorable characterization of service. He expressed his opinion that an UOTHC discharge would not adequately reflect the character and quality of his service. He added that he understood the approval authority was not obliged to approve his request for discharge and his request was not contingent upon the granting of a general, under honorable conditions discharge. f. The applicant and his counsel placed their signatures on the documents. 6. On 11 August 2006, the separation authority approved the applicant's request for discharge, reduced him to the lowest enlisted grade, and directed that he be furnished an UOTHC discharge. 7. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was discharged UOTHC on 25 August 2006 under the provisions of (UP) Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 10 (Discharge for the Good of the Service), in lieu of trial by court-martial. a. He had completed 15 years, 4 months, and 29 days of net/total active service this period. b. Item 18 (Remarks) shows he had continuous honorable active service from 27 March 1991 through 3 March 2000. 8. The applicant submitted an application to the Army Discharge Review Board (ADRB) for review and upgrade of his discharge. On 5 January 2011, the ADRB determined that the applicant's discharge was both proper and equitable and voted to deny relief. 9. A review of the applicant's military service records failed to reveal any evidence that he was referred to the Integrated Disability Evaluation System for any unfitting medical condition(s). 10. In support of his request the applicant provides the following documents: a. A Report of Mental Status Evaluation that shows the applicant underwent a mental status evaluation on 27 December 2000. The psychiatrist found the applicant's behavior was normal; he was fully alert and oriented; and his mood unremarkable, thinking process clear, thought content normal, and memory good. (1) He provided the following diagnoses: Axis I: Dysthymic disorder; Axis II: No diagnosis; Axis III: None. (Dysthymic disorder is a mood disorder consisting of the same cognitive and physical problems as in depression, with less severe, but longer-lasting symptoms.) (2) The psychiatrist also found the applicant was mentally responsible, had the mental capacity to understand and participate in board proceedings, and met medical retention standards. The applicant was psychiatrically cleared for any administrative action deemed appropriate by command. b. A Report of Mental Status Evaluation that shows the applicant underwent a mental status evaluation on 10 January 2001. The same psychiatrist found the applicant's behavior was normal; he was fully alert and oriented; and his mood unremarkable, thinking process clear, thought content normal, and memory good. (1) He provided the following diagnoses: Axis I: Dysthymic disorder; Axis II: No diagnosis; Axis III: None. (2) The psychiatrist also found the applicant was mentally responsible, had the mental capacity to understand and participate in board proceedings, and met medical retention standards. The applicant was psychiatrically cleared for any administrative action deemed appropriate by command. c. Hinesville Family Care Center, Hinesville, GA, letter, dated 21 March 2016, that shows Calin B___, Medical Doctor, Internal Medicine, confirmed the applicant was a patient at the medical center from May 2008 to August 2013. He added, "He was treated for depression (PTSD) and was prescribed medication to treat his condition." d. A letter from Staff Sergeant George B____, undated. He stated that he served as the applicant's Rear Detachment Commander in 2006–2007 while he was assigned to Headquarters and Headquarters Battery, 4th Battalion, 27th Field Artillery, Baumholder, Germany. He attests to the applicant's professionalism and dedication to duty in assisting him in the rear detachment mission. 11. In the processing of this case, an advisory opinion was obtained from the Army Review Boards Agency (ARBA) medical staff, dated 25 August 2017. a. The ARBA clinical psychologist noted that she was asked to determine if the available records reasonably support PTSD, or another boardable behavioral health (BH) condition, existed at the time of the applicant's military service. The advisory opinion was based on the information provided by the ABCMR, the applicant in his application, and records available in the DoD electronic medical record (AHLTA). b. She noted two Mental Health Assessments, dated 27 December 2000 and 10 January 2001, indicate a diagnosis of dysthymic disorder. The applicant was determined to be non-deployable; however, his condition did not warrant medical disposition. The applicant's civilian medical record, dated 21 March 2016, indicates he was a patient at Hinesville Family Care Center from May 2008 to August 2013 for depression. c. The ARBA clinical psychologist noted there is evidence that the applicant met criteria for a depressive disorder during his military service. However, she concluded this condition is not reasonably related to child pornography and not a mitigating factor for the misconduct that led to the applicant's separation action. 12. On 30 August 2017, the applicant was provided a copy of the advisory opinion in order to allow him the opportunity to submit comments or a rebuttal. 13. On 27 September 2017, the applicant provided a response. He stated that he disagreed with the ARBA clinical psychologist. He acknowledged that he was subject to UCMJ for his actions; however, the DoD policy requires consideration of his conditions of PTSD, as well as major depressive disorder (MDD). a. He stated the actions leading to his discharge would not have occurred had he not been suffering from MDD and/or PTSD. He was not in the "right frame of mind" at the time when he did what he did and "that is the definition of a person who suffers from MDD and/or PTSD." b. He added, "During my research on signs, symptoms, and treatments of MDD, I discovered that individuals diagnosed with MDD are more likely to resort to pornography, to include child pornography, than individuals not diagnosed. This is because the individual who suffers from MDD is not able to make sound decisions or use proper judgement at the time." c. He concluded that the ARBA clinical psychologist's conclusion is absurd because there was only an isolated incident and there was no previous behavior of this sort. He added that his diagnoses of MDD and/or PTSD were mitigating factors in the misconduct and his discharge should be upgraded. 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. 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 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 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 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. 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; 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 on 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. 9. 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 the Integrated Disability Evaluation System. 10. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. A medical examination is not required. Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate. 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 3, paragraph 3-7b, provides that 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. 11. AR 15-185 (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 that his UOTHC discharge should be upgraded to an honorable discharge based on improper/illegal procedures and because he was diagnosed with PTSD and MDD, which mitigates the behavior for which he was discharged and falls under the DoD policy for liberal consideration of upgrade of his discharge. 2. The issues the applicant raises in his statements to this Board (i.e., regarding improper search and interrogation procedures, unauthorized/unlawful alterations to his typed statement, and improper search and seizure of personal property in Kuwait and at his home) are noted. a. The evidence of record shows the applicant voluntarily submitted a request for discharge in lieu of court-martial. b. In doing so, he voluntarily and willingly forfeited his right to present evidence and challenge the legality of those matters at a court-martial. 3. The regulations governing the Board's operation require that the discharge process be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption. By submitting his request for discharge he acknowledged he was guilty of the charges against him or of a lesser included offense therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge. 4. In the absence of evidence to the contrary, the discharge process, the type of discharge, and the characterization of service directed are presumed to have been appropriate. 5. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on mental health conditions, including PTSD. a. The evidence of record shows the applicant was diagnosed with dysthymic disorder (mood disorder, depression) during his military service. There is no evidence of record that shows the condition was medically unfitting. b. Several years after he was discharged he was treated for depression (a symptom of PTSD). b. There is no evidence that shows he was diagnosed with PTSD (or MDD). c. The ARBA clinical psychologist found the applicant met criteria for a depressive disorder during his military service. However, she concluded that this condition is not reasonably related to child pornography and, therefore, was not a mitigating factor for the misconduct that led to the applicant's separation action. BOARD DATE: 10 May 2018 DOCKET NUMBER: AR20160007149 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160007149 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160007149 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2