ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 March 2019 DOCKET NUMBER: AR20160015820 APPLICANT REQUESTS: * upgrade of his general discharge under honorable conditions to honorable * change the reason for his discharge and separation program designator (SPD) code to one of the following: * "Disability, Severance Pay," with SPD: "JFL"; or * "Completion of Required Active Service," SPD: "KBK"; or * "Miscellaneous/General Reasons," SPD: "JND"; or * "Secretarial Authority," SPD: "JFF" * have a psychiatrist, trained in evaluating and treating PTSD, provide a determination following a review of his entire medical and service record * in effect, provide a copy of the video recording of his Army Discharge Review Board (ADRB) hearing (Docket Number AR20110022395, conducted in March 2012) * personally appear before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States) * Case Report and Directive, ADRB Docket Number AR20110022395, dated 26 March 2012 * Enlisted Record Brief * 15 letters of support * DA Form 1059 (Service School Academic Evaluation Report), academic rating period 6 June through 21 June 2006 * Standard Forms (SF) 600 (Chronological Record of Medical Care), 27 March to 26 June 2007 * Department of Veterans Affairs (VA) medical records, dated in 2007 * Clinical psychologist's letter, dated 29 May 2009 * Celexa drug description * Deployment orders with by-name list, dated 22 March 2007 * Medical Command (MEDCOM) Form 699-R (Mental Status Evaluation), dated 4 June 2007 * DA Form 2627 (Record of Proceedings Under Article 15, UCMJ (Uniform Code of Military Justice)) (also referred to as nonjudicial punishment (NJP)), dated 5 July 2007 * Separation documents, including commander's notification, applicant's elections, and separation authority action, all dated in August 2007 * Document titled, "Post-Traumatic Stress Disorder (PTSD), Diagnosis and Assessment," undated * DA Form 638 (Recommendation for Award), with Army Commendation Medal Certificate, dated 21 November 2005 * Applicant's military and VA medical records * [applicant] Forensic Psychiatric Report, dated 26 July 2015 * VA psychiatrist's letter, dated 5 March 2013 * News articles, dated between 2007 and 2016 * Military Law Review, Volume 214 (Winter 2012), "Beyond 'T.B.D': Understanding VA's Evaluation of a Former Servicemember's Benefit Eligibility Following Involuntary or Punitive Discharge from the Armed Forces" * Department of Defense Instruction (DODI) 1332.14 (Enlisted Administrative Separations), with change 3, dated 22 March 2018 * U.S. Senator letter, dated 12 August 2008, with National Personnel Records Center letter and documents from the applicant's official military personnel file FACTS: 1. Counsel states: a. The applicant's separation was based on a single, isolated incident (missing movement); it was unjust and inequitable not to consider the substantial role his PTSD played in the commission of this offense. Further, his chain of command premised his discharge on the erroneous and untrue belief the applicant was not suffering from PTSD. Had his doctors properly diagnosed his PTSD, he would not have gotten the type of separation or character of service he received. b. In December 2014, the law changed such that it required the ADRB to include a clinical psychologist, psychiatrist, or physician trained in mental health issues as a board member when considering cases involving former service members who, while serving on active duty and during a combat deployment, had incurred PTSD. The applicant was denied this opportunity. c. Counsel submits arguments countering the findings of the ADRB in Docket Number AR20110022395, dated 26 March 2012, and offered an analysis by a trained forensic psychiatrist from a medical college to support many of his assertions. In addition, he notes the applicant was submitting new evidence to the Board, and contended, had the applicant's physicians properly diagnosed him with PTSD, appropriate authority would have referred him into the Army's Disability Evaluation System (DES). The applicant would have been granted a disability, vice misconduct separation, if he had properly been referred into the DES. Counsel cited Department of Defense Instruction (DODI) 1332.14 (Enlisted Administrative Separations) and Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations). d. Counsel provides applicant's military history and experiences in combat. He describes the symptoms of PTSD the applicant began to display and how the applicant sought treatment. Counsel asserts the applicant was misdiagnosed with adjustment disorder when, in actuality, he was suffering from PTSD; the physician prescribed Celexa (anti-depressant), which has the recognized side-effect of suicidal inclinations. The applicant was scheduled to deploy, but was delayed because he needed to undergo a surgical procedure; he was rescheduled to deploy on 28 May 2007. After surgery, he was placed on strict bed rest for 1 month; on 27 May 2007, his undiagnosed PTSD triggered a suicide attempt (he mixed prescribed medications with alcohol). The applicant was rushed to the emergency room, after which he was confined against his will in the hospital; on 28 May 2007, he missed his deployment flight. e. After his suicide attempt, he was told he would be separated with an honorable discharge, however, his chain of command then decided to instigate an NJP action based on missing movement. The applicant's leadership ultimately elected not to pursue NJP action, and, on 16 August 2007, separated him instead under the provisions of AR 635-200, chapter 14 (Separation for Misconduct), paragraph 14-12c (Commission of a Serious Offense). f. In November 2007, a VA physician diagnosed the applicant with PTSD; counsel contends, based on the symptoms displayed, the applicant clearly had PTSD while still on active duty. g. Since his separation, the applicant has been receiving regular treatment for PTSD. In addition, he has been dedicated to helping civilians understand the combat experiences and sacrifices of Soldiers; counsel notes numerous professors have invited the applicant to speak at their universities, and he has worked tirelessly with members of Congress to pass legislation to increase aid for Veterans with PTSD/traumatic brain injury (TBI). The applicant is also pursuing a degree and making an effort return his life to normal. 2. Counsel provides: * evidence of the applicant's superior duty performance in or around 2005 and 2006 * extracts from applicant's military and VA medical records indicating behavioral health issues in 2007 * DA Form 2627 showing the charge of feigning a mental lapse to avoid hazardous duty (not completed) * numerous news articles related to PTSD, many of which include interviews of the applicant, as well as descriptions of his experiences * letters of support, describing applicant's exemplary duty performance, and his advocacy for Veterans following his separation * forensic psychiatric report, which details applicant's personal and military history; progression of behavioral health issues, civilian life after discharge, service- connected VA disabilities, and treatments for PTSD; shows current "mild PTSD, Major Depressive Disorder in partial remission, and Alcohol-Used Disorder" 3. The applicant's records show: a. He enlisted into the Regular Army on 29 January 2004 and held military occupational specialty (MOS) 13F (Fire Support Specialist). Following initial training, he assigned to Fort Stewart, GA and deployed to Kuwait/Iraq from 20 January to 24 December 2005. b. On 22 March 2007, temporary change of station orders identified the applicant for deployment in support of Operation Iraqi Freedom (OIF); he was to depart on or about 9 May 2007. His deployment was delayed due to a pending surgical procedure; he was rescheduled to deploy on 28 May 2007. c. Starting 27 March 2007, the applicant sought behavioral health services because he had thoughts of hurting others and had difficulty controlling his anger. On 28 May 2007, he was admitted to the Fort Stewart military hospital because he had made a suicidal gesture; he also underwent a comprehensive psychiatric evaluation. Upon his admission to the hospital, the physicians' initial diagnosis was adjustment disorder. Following an assessment, a psychiatrist determined the applicant displayed no significant withdrawal symptoms, no suicidal behavior, and cooperatively participated in individual and group therapy. The psychiatrist noted the applicant was mentally sound; he diagnosed the applicant with adjustment disorder, personality disorder, and having had an overdose. Medical authority released the applicant on 4 June 2007. d. The rear detachment noncommissioned officer (NCO) counseled the applicant in writing on 15 June 2007 for the following: * on 28 May 2007, he malingered by feigning a mental lapse/derangement and intentionally injuring himself (attempted suicide); the applicant did this during time of war to avoid performing his 13F duties * also on 28 May 2007, missing movement through design e. On 1 August 2007, the applicant's commander notified him of his intent to separate him under the provisions of paragraph 14-12c, AR 635-200. The commander's reason was the fact that the applicant had missed movement so he could avoid hazardous duty (i.e. deployment in support of OIF). f. On 1 August 2007, after consulting with counsel, the applicant acknowledged he was told the reason for the separation action, understood the rights available to him, and affirmed he was submitting a statement in his own behalf. In his statement, he essentially wrote: * he requested an honorable discharge, based on his superior duty performance * cited his accelerated promotions, exceptional Warrior Leader Course and NCO Academy evaluations, and significant accomplishments achieved during his previous deployment g. The separation authority approved the commander's recommendation on 7 August 2007, and directed the applicant's general discharge under honorable conditions. On 16 August 2007, the applicant was discharged accordingly; his DD Form 214 (Certificate of Release or Discharge from Active Duty) showed: (1) He was awarded or authorized: * Army Commendation Medal * Meritorious Unit Commendation * National Defense Service Medal * Global War on Terrorism Service Medal * Iraq Campaign Medal * NCO Professional Development Ribbon * Army Service Ribbon * Overseas Service Ribbon * Combat Action Badge (2) SPD: "JKQ;" Narrative Reason for Separation: "Misconduct (Serious Offense)." 4. The applicant applied to the ADRB, on 24 June 2009, for an upgrade to honorable. a. Counsel argued: * discharge was improper because the applicant lacked the requisite mental intent for missing movement * characterization of service was inequitable because the applicant was insufficiently counseled after his suicide attempt; this resulted in the missing movement charge * the applicant would not have received the same discharge if current Army policies for identifying and handling suicidal tendencies had been applied; he would have gotten a medical discharge with an honorable character of service b. On 31 March 2010, in ADRB Docket Number AR20090011673, the ADRB found the applicant's discharge was proper and equitable; applicant's petition was denied. 5. On 28 October 2011, the applicant reapplied to the ADRB and requested a personal appearance. Counsel contended the applicant showed symptoms of PTSD, but no one evaluated him; he should have been granted an honorable discharge due to disability or based on the completion of required active service. The applicant appeared with counsel before the ADRB on 26 March 2012. After considering the applicant's record, hearing his testimony, and evaluating the ADRB analyst's recommendation and rationale, the ADRB determined the applicant's discharge had been proper and equitable; the board denied relief. 6. On 12 December 2016, the Army Review Boards Agency (ARBA) psychiatrist provided an advisory opinion, it states: a. Despite the lack of a diagnosis in the applicant's military medical records, there was evidence the applicant had PTSD at the time of his discharge; a number of significant factors consistent with PTSD were cited. b. The applicant's suicide attempt, while viewed by the unit as malingering, was more accurately a form of avoidance often seen in Soldiers suffering from PTSD. Based on the foregoing, the applicant had a mitigating behavioral health condition (PTSD) for the offense that led to his adverse separation. 7. On 13 December 2016, ARBA provided the applicant and counsel a copy of the advisory opinion for review, and the opportunity to submit a statement or additional evidence. On 20 December 2016, counsel provided the following: * the applicant agreed with the ARBA psychiatrist's conclusions; based on this, counsel requested the Board grant relief * the specific relief now requested was: honorable character of service; being place in a retired status based on disability; changing the SPD code to "SFJ" (Disability, Permanent) and the narrative reason for separation to "Disability, Permanent" 8. On 3 January 2017, the ARBA Senior Medical Advisor provided an advisory opinion; it states: a. Although there was a retrospective impression of in-service PTSD, the applicant met medical retention standards for adjustment disorder, PTSD, and all other medical conditions noted in the applicant's DOD electronic medical records. b. The applicant's medical conditions were appropriately considered during separation processing; other than that which was noted by the ARBA psychiatrist, there was no basis to support a change in the character or reason for discharge. 9. On 4 January 2017, ARBA provided the applicant and counsel a copy of the advisory opinion for review, and the opportunity to submit a statement or additional evidence. On 30 January 2017, counsel offered the following: a. The advisory is wrong, in that the applicant did not meet medical retention standards, per AR 40-501 (Standards of Medical Fitness). Counsel argues, given his chain of command's discharge action against the applicant, it was clear the applicant's PTSD symptoms interfered with his effective military duty performance. In addition, it is likely the applicant's PTSD would have worsened, had he been allowed to remain on active duty. Since his discharge, the applicant has not been able to perform effectively as a student or employee; several of his civilian employers have terminated him. b. AR 635-200 states, except for discharges in lieu of courts-martial, disposition through medical channels takes precedence over other administrative separation processing. The regulation also states the general court-martial convening authority (GCMCA) can direct the disability processing of a Soldier when it is evident the separation action was based on misconduct directly caused by the Soldier's medical condition. c. Contrary to what is stated in the advisory, there is no factual evidence to support a conclusion the applicant's medical conditions were appropriately considered during separation processing. The applicant does not understand how his PTSD could have been considered if his medical records no mention of this condition. Further, in the Case Report and Directive for ADRB Docket Number AR20110022395, the analyst wrote, "in review of the applicant's entire service record, ... the record does not support ... PTSD at the time of his discharge." How could the Senior Medical Advisor determine medical conditions were considered, when the ADRB was unable to reach the same conclusion? 10. The ARBA Senior Medical Advisor reviewed counsel's rebuttal and concluded there was no basis to change the January 2017 advisory; the applicant met medical retention standards and referral into the DES was not warranted. 11. With regard to referral into the Army's DES: * to be eligible for referral, medical authority must first determine the Soldier's medical condition(s) fail medical retention standards * the disability regulation in effect at the time stated the mere presence of a medical condition was not sufficient to warrant a finding of unfit; due consideration was given to compare the nature and degree of physical disability with the requirements of the Soldier's duties, given his/her rank * enlisted Soldiers pending separation for which an under other than honorable conditions character of service was authorized were not referred into the DES; however, the GCMCA could abate adverse separation action if he/she found the disability was the cause, or a substantially contributing cause, of the separation * Soldiers determined to be unfit for continued military service normally received honorable discharges, but a general discharge under honorable conditions was also authorized when the Soldier's service was satisfactory but not sufficiently meritorious to warrant an honorable characterization 12. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published guidance on equity, injustice, or clemency. BOARD DISCUSSION: After reviewing the application and all supporting evidence, the Board found relief was warranted. Based upon the extensive medical conditions that were present during the time of misconduct, the Board found that the medical conditions mitigated the misconduct and, therefore, upgrading the applicant’s discharge and changing the narrative reason for the separation was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The evidence of record and independent evidence provided by the applicant are sufficient to render a decision without a personal appearance hearing. 2. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the DD Form 214, ending 16 August 2007, to show * characterization of service as Honorable * "Miscellaneous/General Reasons, "JND" 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. ADMINISTRATIVE NOTE(S): Provide a copy of the video recording of his Army Discharge Review Board (ADRB) hearing (Docket Number AR20110022395, conducted in March 2012). REFERENCES: 1. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a stated an honorable character of service represented a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member's service had generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. Chapter 14 (Separation for Misconduct) established policy and prescribes procedures for separating members due to misconduct. Soldiers were separated for misconduct when it was clearly established that rehabilitation was impracticable or is unlikely to succeed. Paragraph 14-12c (Commission of a Serious Offense) applied to Soldiers who committed acts of serious misconduct, and for which a punitive discharge was authorized under the UCMJ. (Maximum punishment under the UCMJ for missing movement through design included a dishonorable or bad conduct discharge). 2. AR 635-5-1 (SPD Codes), in effect at the time, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It identified the following SPD codes, with authority and narrative reasons for separation: SPD Code Narrative Reason Regulatory Authority JKQ Misconduct (Serious Offense) AR 635-200, paragraph (para) 14-12c JFL Disability, Severance Pay AR 635–40, para 4–24b(3) KBK Completion of Required Active Service AR 635–200, chap 4 JND Miscellaneous/General Reasons AR 635–200, para 5–14 JFF Secretarial Authority AR 635–200, para 5–3 SFJ Disability, Permanent AR 635–40, para 4–24b(1) 3. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, established the Army's disability evaluation system (DES) and set forth policies, responsibilities, and procedures governing the evaluation for physical fitness of Soldiers who might be unfit to perform their military duties because of physical disability. a. Chapter 3 (Policies) stated the mere presences of an impairment did not, of itself, justify a finding of unfitness because of physical disability. In each case, it was necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably could be expected to perform because of his/her office, grade, rank, or rating. b. Chapter 4 (Procedures), section I (Eligibility for Disability Evaluation) described situations where a Soldier might not be eligible for processing within the DES. (1) An enlisted Soldier for whom separation action had been initiated, and for which a character of service of under other than honorable conditions discharge was authorized, was not to be referred into or continue processing through the DES. (2) The commander with general court-martial convening authority (GCMCA) could abate the adverse separation action when: * he/she determined the disability was the cause, or was a substantially contributing cause, of the misconduct that might result in a discharge under other than honorable conditions * there were other circumstances that warranted disability processing (3) When the GCMCA abated the adverse separation action in favor of DES processing, the decision had to be in writing, and a signed copy of the decision was required to be forwarded with the disability case file to the PEB. b. Appendix E (Personnel Processing Actions) stated enlisted personnel discharged because of physical disability would normally be characterized as honorable, but a general discharge under honorable conditions was also authorized when that Soldier's service was satisfactory but not sufficiently meritorious to warrant an honorable characterization. 4. Department of Defense Manual 1332.18, Volume 2, currently in effect, prescribes policies and procedures for the processing of Soldiers with duty-related disabling medical conditions. a. The Integrated Disability Evaluation System (IDES) is a joint Department of Defense and VA process by which it is determined if Soldiers who have been wounded, ill, or injured are fit for continued military service. b. In consultation with the Soldier's commander and on approval by the MEB convening authority, a military medical provider refers a Soldier with disabling medical conditions to IDES. (1) The VA provides the medical examinations (identified as C&P examinations) of the disabling conditions. Then, based on the VA's medical examinations, an MEB makes an assessment to identify those medical conditions that fail to meet medical retention standards. All conditions failing retention standards are referred to a PEB for a fitness determination. (2) Conditions found by the PEB to be unfitting are sent to the VA for a disability rating. In determining the rating(s) to be assigned, the VA uses the VA Schedule for Rating Disabilities (VASRD). Each rated disability is assigned a code by VA in accordance with the schedule of ratings within the VASRD. (3) Upon receipt of the disability rating(s) from the VA, the results are finalized and the disposition can include the Soldier being returned to duty or separated (either with severance pay, if the total disability rating is 20 percent or less, or retired, for those cases where the disability rating is 30 percent or higher). 5. 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 post-traumatic stress disorder (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. 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; traumatic brain injury; 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. 7. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to DRBs and BCM/NRs regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. ABCMR Record of Proceedings (cont) AR20160015820 9 1