DEPARTMENT OF THE ARMY ARMY REVIEW BOARDS AGENCY 251 18TH STREET SOUTH, SUITE 385 ARLINGTON, VA 22202·3531 SAMR-RB 17 April 2017 MEMORANDUM FOR Office of the Surgeon General, ATTN: DASG-HSZ-PAD, 7700 Arlington Blvd., Suite 3SW328B, Falls Church, VA 22042 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for AR20160011751 1. Reference the attached Army Board for Correction of Military Records of Proceedings, dated 16 March 2017, in which the Board members unanimously recommended denial of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant partial relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that the applicant's case be referred to the Office of the Surgeon General to determine if he should have been retired or discharged by reason of physical disability through the Integrated Disability Evaluation System (IDES). a. In the event that a formal physical evaluation board (PEB) becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. b. Should a determination be made that the applicant should have been separated under the IDES, these proceedings will serve as the authority to void his administrative separation and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 17 August 2017. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown Printed on $Recycled Paper SAMR-RB SUBJECT: Army Board for Correction of Military Records Record of Proceedings for AR20160011751 interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: Encl had . d .&ut..-- Deputy Assistant Secretary of the Army (Review Boards) CF: ( ) OMPF BOARD DATE: 16 March 2017 DOCKET NUMBER: AR20160011751 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: 16 March 2017 DOCKET NUMBER: AR20160011751 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that 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: 16 March 201799999 DOCKET NUMBER: AR20160011751 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, correction of his records by setting aside his general, under honorable conditions discharge that was based on misconduct (serious offense), referral of his records to the Integrated Disability Evaluation System (IDES), and placement on the Temporary Disability Retired List (TDRL) or the Permanent Disability Retired List (PDRL) with retired back pay effective the date following the date of his discharge. He also requests a personal appearance before the Board. 2. The applicant defers to his counsel. 3. The applicant provides copies of documents as identified by his counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests, in effect, correction of the applicant's records by setting aside his general, under honorable conditions discharge that was based on misconduct (serious offense), referral of the applicant's records to the IDES, and placement of the applicant on the TDRL or the PDRL with retired back pay effective the date following the date of his discharge. 2. Counsel states the applicant's misconduct that resulted in his discharge was based on his combat-induced post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI). Consequently, the applicant's discharge falls under the purview of the Secretary of Defense policy that provides for consideration of applications from former service members administratively discharged and who have been diagnosed with PTSD by a competent mental health professional. a. He states the applicant served in the U.S. Army in military occupational specialty (MOS) 91B (Wheeled Vehicle Mechanic). He served one overseas tour in Kosovo, three in Iraq, and one in Afghanistan. He showed signs of PTSD after serving in Kosovo, which worsened with each subsequent deployment. b. He was referred to the IDES in 2010 and discharged on 21 April 2011. The applicant's Medical Evaluation Board (MEB) Narrative Summary (NARSUM) was initiated on 9 August 2010 and finalized on 11 March 2011. (1) Counsel states the applicant was unfit for duty due to his diagnosed PTSD and TBI. His PULHES, issued on 17 March 2011, was "333213" with all functional activities designated "No," except for wearing a military uniform and boots. (2) The applicant's PTSD was confirmed in February 2011. At the time, the applicant was self-medicating with alcohol. His PTSD was further confirmed (i.e., "chronic" PTSD) by the Office of The Surgeon General (OTSG), Health and Policy Services Directorate, in March 2011. c. The applicant's processing through the IDES was terminated because of his admitted misconduct. (1) He received a General Officer Memorandum of Reprimand (GOMOR) on 14 December 2009 for driving under the influence (DUI) on 3 November 2009. (2) On 4 November 2010, he was arrested for domestic violence and resisting arrest. (3) Administrative separation proceedings were initiated. He appeared before an Administrative Separation Board (ASB) and was recommended for separation with a general, under honorable conditions discharge. The separation authority approved his separation with a general, under honorable conditions discharge. d. Counsel states the applicant was being processed simultaneously by the IDES and for administrative separation. He questions which procedure should take precedence. He asserts the applicant's PTSD and TBI were causative of the misconduct. (1) The applicant's DUI was due to his use of alcohol to self-medicate his PTSD symptoms. Counsel adds the military Operations Report based on his arrest for domestic violence shows his commander offered, "while [the applicant] did not resist [counsel's emphasis], he was not completely cooperative." Thus, it is not clear if the applicant did resist arrest. The Offense Report actually shows, "Deputy Sheriff Detective F____ was able to establish telephone contact with [applicant] and convinced him to exit through the garage door." (2) The domestic assault occurred when the applicant restrained his daughter against a door jam, which met the definition of an assault, but his daughter was not harmed. Alcohol was a factor in the episode and the applicant had a rifle in the home. However, he did not use it to threaten anyone, except himself when he suggested suicide to his wife who had given birth to their child two days prior. (His wife delivered a baby and had complications. The applicant consumed alcohol to calm down while his wife remained in the hospital. He was having nightmares, hypervigilance, and depression.) e. Counsel states that assault is not a specific intent crime and the applicant was not tried for any crime by either civilian or military authorities. He contends they recognized that PTSD caused the applicant's conduct. He adds, prior to the PTSD, the applicant had no prior history of aberrant behavior. He concludes, the fact that the applicant was issued an under honorable conditions discharge shows the command tacitly acknowledged that his PTSD was a causative factor for the misconduct. 3. Counsel provides a 5-page supplemental statement (summarized above) and copies of: * the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) * Secretary of Defense memorandum, dated 3 September 2014 * MEB NARSUM * DA Form 3349 (Physical Profile) * Psychological Evaluation Report * Psychiatry Addendum for PTSD and Other Psychiatric Disorders * GOMOR and allied documents * Operations Report, dated 4 November 2010 * administrative separation memorandum with (some) allied documents CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army (RA) on 24 April 1999 for a period of 3 years. He was awarded MOS 91B. 2. Through a series of reenlistments, he continued to serve on active duty. a. He served overseas in: * Kosovo: 1 April 2002 to 8 August 2002 * Iraq – * 14 March 2003 to 18 July 2003 * 17 November 2004 to 14 July 2005 * 15 January 2006 to 30 August 2006 * Afghanistan: 15 May 2008 to 1 July 2008 b. He was promoted to staff sergeant/pay grade E-6 on 20 February 2006. c. He last reenlisted in the RA on 19 August 2009 for a period of 2 years. 3. A review of the applicant's military service records, in pertinent part, shows: a. On 24 November 2008, he was assigned to Fort Carson, CO. He was enrolled in the Alcohol and Substance Abuse Program, in addition to an alcohol inpatient treatment facility. b. On 13 October 2009, he was assigned to Headquarters and Headquarters Company (HHC), 6th Ranger Training Battalion (RTB), Elgin Air Force Base, FL, for a compassionate reassignment in order to attend to the needs of his stepdaughter. He was counseled for failing to report to his initial Alcohol and Drug Abuse Prevention and Control meeting on 29 October 2009. c. On 3 November 2009, the applicant was arrested and charged with DUI. 4. On 14 December 2009, the applicant was reprimanded by Major General (MG) M__ F___, Commanding General (CG), Headquarters, U.S. Army Maneuver Center of Excellence, Fort Benning, GA, for being arrested by civilian police for DUI, on 3 November 2009, as determined by a properly conducted test. a. The reprimand was imposed as an administrative measure and not as punishment pursuant to the Uniform Code of Military Justice (UCMJ). In accordance with Army Regulation (AR) 600-37 (Unfavorable Information), paragraph 3-6, the CG advised the applicant that he was considering filing the reprimand permanently in his Official Military Personnel File (OMPF), but he would consider written matters the applicant wished to submit before making his filing decision. b. The applicant acknowledged receipt of the reprimand. He subsequently elected not to submit any written matters in his behalf. c. On 4 May 2010, after reviewing the facts and circumstances pertaining to the applicant's case, the acting commander directed the GOMOR be filed permanently in the applicant's OMPF. d. A review of the applicant's OMPF shows the GOMOR, dated 14 December 2009, along with the allied documents, is filed in his OMPF. 5. An HHC, 6th RTB, Operations Report Number (Initial), dated 4 November 2010, along with an Okaloosa County Sheriff's Office, FL, Offense Report, dated 4 November 2010, show the applicant was arrested and charged with battery (touch or strike, domestic violence) and resisting officer (obstruct without violence). 6. The applicant was notified by his commander that action was being initiated to separate him under the provisions of (UP) Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 14, for misconduct based on commission of a serious offense with a recommendation that he receive a general, under honorable conditions characterization of service. a. The reasons for the proposed action were the applicant was charged with domestic violence, resisting arrest, DUI, and drunk on duty. The commander advised the applicant of his right to: * consult with counsel * request a hearing before an ASB * submit statements in his own behalf * be represented by counsel * waive any of these rights * withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge b. He also informed him the separation authority could direct that his service be characterized as honorable, under honorable conditions, or under other than honorable conditions (UOTHC). However, the separation authority may not direct the issuance of a character of service less favorable than that recommend by the ASB should the applicant request a hearing before an ASB. c. The commander also informed the applicant he was required to undergo a medical examination. 7. On 24 November 2010, the applicant acknowledged he had been advised by counsel of the basis for the contemplated separation action for misconduct (commission of a serious offense). He also acknowledged he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. He further acknowledged that as a result of a discharge UOTHC he might be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life. He did not submit statements in his own behalf. He requested consideration of his case by an ASB and personal appearance before the ASB. 8. The commander recommended the applicant be separated for commission of a serious offense. He noted that rehabilitative efforts had been tried and failed, and additional efforts would not be deemed appropriate. He noted a copy of the applicant's mental status evaluation or psychiatric report and his report of medical examination were attached. 9. The chain of command recommended approval of the applicant's separation UP AR 635-200, chapter 14, and that his service be characterized as general, under honorable conditions. 10. On 3 February 2011, the applicant and his counsel appeared before an ASB. A review of the ASB proceedings, in pertinent part, shows: a. In response to a question by a board member, his commander stated, "I wanted to [sic] for him to go through the MEB process with a chance to get out. I explained to [the chain of command] what my thoughts were. I asked the mental [health] counselor what he can do or not do. So, we transferred [the applicant] to the S-4. b. In an unsworn statement the applicant stated, "I have had three deployments. I went once to Afghanistan and two to Iraq. [Later, he stated, "I deployed three times to Iraq, once to Afghanistan, and once to Kosovo."] * "I had to pry a buddy off a burned seat. That incident has affected me where I have had some nightmares about it. I felt like the Soldier should have had better training. I came back and I started to drink real heavily. The treatment facility was different than the ones I went to in the past. This one was mostly civilian. There was an area in the hospital that was mostly military. It provided me comfort to see others going through the same thing." * "Since I started having PTSD and started drinking, I hit rock bottom. I am seeing Doctor R___ and Commander T___. I feel like I am getting better seeing them." c. The board found the applicant had committed a serious offense UP AR 635-200, paragraph 14-12c. The board recommended his separation from military service with the issuance of a general discharge, under honorable conditions. 11. A DA Form 3349, issued to the applicant on 17 March 2011, shows a PULHES of "333213." It references a DD Form 2807/2806 (MEB Proceedings) and shows it was referred to the Physical Evaluation Board (PEB) Liaison Officer (PEBLO) for MEB/PEB. 12. On 5 April 2011, the separation authority approved the recommendation for discharge of the applicant UP AR 635-200, paragraph 14-12c, with a general, under honorable conditions discharge. 13. The applicant's DD Form 214 shows he entered active duty this period on 24 August 1999 and he was discharged on 21 April 2011, UP AR 635-200, paragraph 14-12c, based on misconduct (serious offense) with service characterized as under honorable conditions (general). He had completed 11 years, 7 months, and 28 days of total active service during this period. a. It also shows in item 18 (Remarks), in pertinent part, "Immediate Reenlistments This Period – – 20010928–20090818, 20090819–20110421." b. Item 18 shows his service in Iraq and Afghanistan; however, it does not show his service in Kosovo. 14. In support of the application the applicant and his counsel provide the following additional documents pertaining to the applicant: MEB NARSUM, dated 17 March 2011; Psychological Assessment, dated 16 February 2011; and Psychiatry Addendum for PTSD and Other Psychiatric Disorders Report, dated 16 March 2011. The documents, in pertinent part, show the following conditions were found medically unacceptable: PTSD, chronic; narcolepsy following head injury; post-concussion syndrome with post-traumatic headaches; gastrointestinal bleeding with anemia/diarrhea; status post right navicular fracture with chronic right wrist pain; musculoskeletal right shoulder pain; and musculoskeletal upper and lower back pain. Additional information pertaining to the results of a review of the available medical records by a medical professional is provided in paragraph 15, below. 15. In the processing of this case, an advisory opinion was obtained from the medical staff, Army Review Boards Agency (ARBA), dated 13 December 2016. a. The staff psychiatrist stated the applicant is applying for upgrade of his discharge and referral of his record to the IDES to complete the MEB/PEB process that he was undergoing for various medical conditions, to include PTSD and post-concussive syndrome. Her review considered the applicant's request, his counsel's petition and enclosures, and the applicant's military personnel record. The applicant's military medical records in the Department of Defense (DoD) electronic medical record system (AHLTA) and in the Veterans Administration (Joint Legacy Viewer) were also reviewed. b. She noted the applicant was evaluated by Christine H___, PsyD, Psychologist, QTC Medical Group, Columbus GA. The Psychological Assessment, dated 16 February 2011, was performed for the Department of Veterans Affairs (VA). Dr. H___ reported the applicant's PTSD symptoms began in April 2005. His symptoms were reported as re-experiencing, avoidance, depression, hyperarousal, impaired sleep, decreased motivation, irritability, and nightmares. His traumatic stressors were: (1) having to remove the bodies of two of his Soldiers from their vehicle after the vehicle had burned in an explosion; (2) being involved in multiple fire fights in which he feared for his life; (3) seeing a fellow gunner get crushed in a motor vehicle accident; and (4) being involved in multiple improvised explosive device (IED) blasts. The psychologist noted the applicant had a history of suicide attempts (by use of a firearm) in 2006 and in November 2010. She diagnosed the applicant with PTSD; major depressive disorder, recurrent, mild; and alcohol dependence in early remission. c. The ARBA staff psychiatrist noted the applicant was placed in the IDES in 2010. An MEB began on 9 August 2010 and was finalized on 17 March 2011. His PTSD diagnosis was confirmed in February 2011. The MEB found the following diagnoses medically unacceptable: PTSD, chronic; narcolepsy following head injury; post-concussion syndrome with post-traumatic headaches; gastrointestinal bleeding with anemia/diarrhea; status post right navicular fracture with chronic right wrist pain; musculoskeletal right shoulder pain; and musculoskeletal upper and lower back pain. (1) She added the MEB proceedings show, in November 2010, following the domestic assault incident, the applicant was jailed for 2 weeks and then stayed in the barracks for 5 weeks until he started an inpatient alcohol/PTSD treatment program at 12 Oaks Hospital. The IDES process was stopped due to his misconduct and subsequent separation from the Army. (2) The VA (Joint Legacy Viewer) indicates the applicant has remained sober since the November 2010 incident involving his daughter and the police. Additionally, the VA indicates the applicant has been granted service connected disabilities with a combined rating of 90 percent. d. The advisory concluded, "[a]fter thoroughly reviewing the applicant's case, it is clear that the applicant's misconduct is the direct result of his PTSD and his history of head injury. It is well known that Soldiers with PTSD self-medicate with substances such as alcohol to control their symptoms, especially their anxiety and hypervigilance symptoms." She added, "[b]ecause PTSD can be associated with use of alcohol to self-medicate, there is a nexus between the applicant's Behavioral Health condition (PTSD) and the applicant's intoxicated state during the episode of his misconduct." She recommended the applicant's record be referred to IDES for reconsideration of military disability retirement. 16. On 15 December 2016, the applicant was provided a copy of the ARBA advisory opinion to allow him the opportunity to submit comments or a rebuttal. A response was not received from the applicant or his counsel. 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 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 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 (Physical Evaluation for Retention, Retirement, or Separation), 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 (Standards of Medical Fitness), 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 the following as serious offenses punishable by court-martial: * Article 95 – Resistance, flight, breach of arrest, and escape (includes resisting apprehension) * Article 111 – Drunken or reckless operation of vehicle, aircraft, or vessel * Article 112 – Drunk on duty * Article 128 – Assault (includes serious injury, even though unintended or not caused by a means or force likely to produce grievous bodily harm) 11. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. In pertinent part, it shows in: 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 UCMJ 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, DUI, drunk on duty, and assault all 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. AR 635-5 (Personnel Separations – Separation Documents), in effect at the time, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army. It contains item-by-item instructions for completing the DD Form 214. It shows item 18 is used for entries required by Headquarters, Department of the Army, for which a separate block is not available and for completing entries too long for their blocks. a. For enlisted Soldiers with more than one enlistment period during the time covered by the DD Form 214, enter "IMMEDIATE REENLISTMENTS THIS PERIOD (specify dates)." b. However, for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except honorable, enter "CONTINUOUS HONORABLE ACTIVE SERVICE FROM (first day of service which DD Form 214 was not issued) UNTIL (date before commencement of current enlistment)." c. For an active duty Soldier who deployed with his/her unit during their continuous period of active service enter: "SERVICE IN (NAME OF COUNTRY DEPLOYED) FROM (inclusive dates, for example YYYYMMDD – YYYYMMDD)." 13. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. Paragraph 2-11 states that applicants do not have a right to a hearing before the ABCMR. The Director of the ABCMR or the chair of an ABCMR panel may grant a formal hearing whenever justice requires. DISCUSSION: 1. The applicant and his counsel contend they should be granted a personal appearance hearing to present evidence and argument in support of the request for correction of the applicant's records to set aside his general, under honorable conditions discharge based on misconduct (serious offense), referral of his records to the IDES, and his placement on the TDRL or the PDRL with retired back pay effective the date following the date of his discharge. 2. The request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant and his counsel is sufficient to render a fair and equitable decision at this time. 3. The applicant's discharge for misconduct UP AR 635-200 based on misconduct (serious offense) was administratively correct. All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. In addition, the reason for and type of discharge directed were both appropriate and equitable. 4. 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 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. 5. An UOTHC discharge is normally considered appropriate for a discharge due to misconduct based on commission of a serious offense. a. The chain of command at the time recommended approval of the applicant's discharge with a general, under honorable conditions 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. In addition, the separation authority approved the discharge with the recommended characterization of service. b. 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 19 August 2009, the applicant committed four serious offenses. It is clear that his service did not meet the standards of acceptable conduct and performance of duty for Army personnel to merit an honorable discharge. 6. Records show the applicant was diagnosed with, in pertinent part, PTSD while on active duty and his case was referred to an MEB. a. The ARBA staff psychiatrist opined that the applicant has a mitigating condition (PTSD) for offenses which led to his separation from the Army for misconduct. She also recommends referral of the applicant's records to the IDES. However, she fails to recognize or address the validity of the decision to administratively separate the applicant rather than continue his processing through the IDES, which is provided for in the governing Army regulatory guidance and was within the purview of the separation authority as the GCMCA. b. 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. c. The separation authority did not take action on the applicant's administrative separation until after the results of the MEB was finalized on 11 March 2011. d. There is no evidence of record that shows the GCMCA directed, in writing, that the applicant be processed through the physical disability system rather than be administratively separated UP AR 635-200, chapter 14. e. Final authority in cases such as this is a function of command and not a medical decision. 7. The governing regulation states a DD Form 214 will not be prepared for enlisted Soldiers discharged for immediate reenlistment in the RA. a. The applicant enlisted in the RA on 24 August 1999 and he last reenlisted in the RA on 19 August 2009. b. A DD Form 214 was not authorized for issuance when he was discharged on 18 August 2009 to reenlist in the RA on 19 August 2009. c. For Soldiers who have multiple continuous enlistments and are separated with any characterization of service except honorable, an entry will be made in item 18 showing the period of their continuous honorable active service up until the date before commencement of the current enlistment. d. Item 18 of the applicant's DD Form 214 does not contain such an entry. 8. The governing regulation also shows a statement will be entered in item 18 of the DD Form 214 for an active duty Soldier who deployed with his/her unit that shows the country and inclusive dates of such deployment. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160011751 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160011751 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2