BOARD DATE: 13 February 2018 DOCKET NUMBER: AR20170002640 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. BOARD DATE: 13 February 2018 DOCKET NUMBER: AR20170002640 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: 13 February 2018 DOCKET NUMBER: AR20170002640 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 Assistant Secretary of the Army (Manpower and Reserve Affairs) (ASA M&RA) submits an application on behalf of a group of Soldiers requesting the Army Board for Correction of Military Records: a. Consider whether a potential violation of Title 10, U.S. Code, section 1177 (Members diagnosed with or reasonably asserting post-traumatic stress disorder (PTSD) and/or traumatic brain injury (TBI): medical examination required before administrative separation) occurred during these Soldiers' separation processing. b. Determine whether a diagnosis of PTSD and/or TBI should result in an upgrade of these Soldiers' characterizations of service. 2. The group application states the ASA M&RA was unable to confirm if these Soldiers' PTSD and TBI diagnoses were considered by the separation authority during separation processing. 3. The ASA M&RA provides an attached list of Soldiers who may have been affected by a potential violation of Title 10, U.S. Code (USC), section 1177. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 16 November 2004. He held military occupational specialty (MOS) 88M (Motor Transport Operator). He reenlisted on 2 September 2009. 2. He served in Iraq from 22 May 2005 to 8 August 2006 and from 20 March 2008 to 10 June 2009. At the time of his separation, he was assigned to the 68th Transportation Company (Medium Truck), Fort Polk, LA. 3. On 5 January 2011, the Fort Polk Criminal Investigation Command (CID) was notified that the applicant had sexually assaulted his step-daughter. The CID investigation established probable cause to believe the applicant: * committed the offense of indecency with a child when engaged in sexual acts at his off post residence in Victoria, TX * committed the offense of aggravated sexual contact with a child when he engaged in sexual acts with [name redacted] while stationed in Germany 4. The Victoria Police Department interviewed the applicant under rights advisement and he admitted the allegations made by [name redacted] were true. The Victoria County Assistant District Attorney opined that probable cause existed to believe the applicant committed the offense of indecency with a child. Trial Counsel, Office of the Staff Judge Advocate, Fort Polk, also opined probable cause existed to believe the applicant committed the offense of aggravated assault. 5. A DA Form 4833 (Commander’s Report of Disciplinary or Administrative Action) included in CID’s records indicates he was administratively discharged for misconduct (serious offense) based on three charges against him (two counts of indecency with a child and one count of indecent assault upon a child). Victoria, TX, law enforcement retained jurisdiction on all charges against him, and at the time of his discharge his case was still in the adjudication process in a civilian court. 6. His records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty) showing he was discharged under other than honorable conditions on 18 May 2011. He was credited with 6 years, 6 months, and 3 days of active service. a. His rank/pay grade was specialist (SPC)/E-4, with a date of rank (DOR) of 16 November 2006. b. He was awarded or authorized the following: * Army Commendation Medal (2nd Award) * Army Achievement Medal (3rd Award) * Army Good Conduct Medal (2nd Award) * National Defense Service Medal * Global War on Terrorism Service Medal * Iraq Campaign Medal with campaign star * Army Service Ribbon * Overseas Service Ribbon (3rd Award) * Combat Action Badge * Driver and Mechanic Badge with Mechanic Clasp c. The separation authority was Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, and the narrative reason for separation was misconduct (serious offense). 7. There is no indication he petitioned the Army Discharge Review Board for review of his discharge processing. 8. The Army Review Boards Agency (ARBA) psychiatrist reviewed the applicant's case for any medical condition(s) not considered during medical separation processing. Specifically: * Does the available record reasonably support PTSD or another boardable behavioral health condition existed at the time of the applicant's military service? * Did these conditions fail medical retention standards in accordance with AR 40-501 (Standards of Medical Fitness), warranting a separation through medical channels? * Is this condition a mitigating factor in the misconduct that resulted in the applicant's discharge from the military? * In accordance with Title 10, U.S. Code, Section 1177, was the required medical exam, which includes a behavioral health component, conducted prior to administrative separation? * Are there any additional information deemed appropriate? 9. On 7 March 2017, the ARBA psychiatrist rendered an advisory opinion. The ARBA psychiatrist stated: a. The applicant enlisted in the Army on 16 November 2004 in the MOS 88M10-Motor Transport Operator. While on active duty, he deployed to Iraq from 22 August 2005 to 8 August 2006. On 18 May 2011, he was separated from the Army with an under other than honorable conditions discharge in accordance with AR 635-200, paragraph 14-12c, for misconduct (serious offense). He is now applying to the ABCMR for discharge relief as part of a group application. The documentation reviewed included the application, his DD Form 214, the military electronic medical record (AHLTA) and the Department of Veterans Affairs (VA) electronic medical record (JLV). b. A review of the applicant’s electronic military record indicates the following: (1) On 9 September 2008, the applicant underwent post deployment TBI and combat stress screenings. No psychiatric diagnosis was given. (2) On 2 September 2009, he was diagnosed with obstructive sleep apnea. (3) On 6 July 2010, he was seen by psychology. At this time he presented with "issues related to past deployments." He also reported ongoing marital conflict. He denied drug or alcohol problems. (More detailed information about his post deployment issues was not documented by the behavioral health (BH) provider.) (4) On 8 July 2010, he reported to his BH provider that he had nightmares and sleep problems related to deployment issues. He also complained of feeling detached from others, guilty feelings about deployment related situations and depressed. He was diagnosed with marital problem and depression and enrolled in weekly group therapy, which he attended from 8 July 2010 to 13 May 2011. (5) On 16 Aug 2010, he was evaluated by psychiatry. At this time, he reported problems with depression and decreased concentration. He reported "depression all his life." He denied a past history of psychiatric hospitalization. He denied any prior history of receiving psychiatric medications. During this visit, the psychiatrist placed the applicant on Wellbutrin (an antidepressant) for his depression. On 9 November 2010, the psychiatrist documented that the applicant was having a good response to the Wellbutrin. (6) On 19 January 2011, the applicant was diagnosed with PTSD by his BH provider. No description of the applicant’s PTSD symptoms was provided. (7) On 11 March 2011, the applicant was screened for PTSD. At this time, his PCL-M (PTSD screen) was 36 (mild PTSD symptoms). At this time, the applicant reported symptoms of anxiety, depression, irritability, grieving, hypersensitivity, mood lability, insomnia, nightmares, withdrawal, anhedonia, decreased motivation and marital issues. The applicant was diagnosed with depression. (8) On 25 April 2011, the applicant underwent a command directed mental status evaluation for paragraph 14-12 separation. The applicant was found to have PTSD (mild according to the medical note) and dysthymic disorder (mild depression). He was also noted to have ongoing marital issues and had been ordered by his command to have no contact with his wife. His mental status examination was within normal limits except for the description of his mood as “depressed.” He denied use of drugs or alcohol. The examining psychiatrist indicated, "There is no evidence of significant mental illness or psychological disorder … to the critical degree which warrants disposition through medical channels. While [Applicant] does exhibit some symptoms of mild depressive disorder and mild PTSD, these symptoms do not rise to the critical level to render him psychiatrically unfit for duty in the military.” The applicant was cleared for administrative separation and was determined to meet military retention standards in accordance with AR 40-501 (Standards of Medical Fitness). c. A review of the applicant’s military medical records also indicates that the applicant was followed by Family Advocacy for “other specified family circumstances” and “parent/child problem” from 15 February 2011 until his discharge from the Army. A review of the VA electronic medical record indicates that it contains only information transferred from AHLTA. d. In regard to the questions outlined above: * the applicant’s medical records do support a PTSD diagnosis at the time of discharge * the applicant’s medical records indicate that the applicant met medical retention standards in accordance with AR 40-501 and separation through military medical channels was not indicated * whether or not the applicant’s diagnosis of PTSD is a mitigating factor in his misconduct cannot be ascertained given the lack of information regarding the nature of his misconduct * the applicant did undergo the required medical examination and behavioral health examination prior to his discharge as required by Title 10, USC, section 1177 10. The applicant received and responded to the advisory opinion on 28 March 2017. He stated: a. He is sure the Board knows that the accuracy of any evaluation depends a great deal on the openness of the subject being evaluated. If the subject is in denial, a great deal of information needed to correctly evaluate them will be missed. This has been true in his case, beginning with his post-deployment evaluation. Real combat and its effects cannot be created during training. When Soldiers are being trained, they all know that everyone will return to the barracks that evening. Shortly after deployment to a combat zone, however, they quickly realize some will never be going home to their families. Combat becomes an intense bonding experience. His squad mates become more than simply friends; they become family. b. During his deployment, a friend's truck was hit by an improvised explosive device (IED) and he thought his friend had been killed. Another incident was when he watched a rocket-propelled grenade (RPG) miss his truck by inches. Death on a daily basis, with IEDs, RPG, mortar attacks and being shot at, returns in his dreams. The only way to survive emotionally is to literally turn himself off, an emotional shutdown. He feared letting his commanders or doctors see how he was affected because it might reflect in his records. But even more than that, he fears opening up about it to anyone because to do so is to relive it, to return to this world. So what does he do? He blocks everyone out. When evaluators asked him if he is depressed, having nightmares, or having suicidal thoughts, he would say no. When asked if he is using drugs or alcohol in excess, he denies it. When asked about his family relationships, he reports all is well, but it is not and, the longer he waits, the harder he tries to deal with it and the worse it seems to get. c. Instead of seeking help, he begins to push people away, even those closest to him. Even if he does not eventually seek help, he plays down both his problems and how he has tried to cope with them. His case is an excellent example of this problem. His post-deployment TBI and combat stress screening, given immediately upon return, shows no psychiatric problems. This was in 2008, and less than 2 years later, while still in the military, his problems had begun to affect his marriage. At least some of those problems came from his drinking and sleep issues. He denied his drinking problem out of fear of having bad reports on his records. d. In 2010, he was diagnosed with depression, and just five months later, he was diagnosed with PTSD. A large part of his problems were, at this time, still being suppressed leading to an assessment of only mild PTSD and depression. In hindsight, he understands that he should have been more forthcoming with his evaluators. Unfortunately it is one of the symptoms of PTSD and depression to both suppress and isolate. He has over the last several years come to terms with the necessity of opening up to others. He is asking this Board to consider its experiences with PTSD and the likelihood that misdiagnosis was made. A simple reevaluation in his case would correct a miscarriage of justice. Finally, he asks the Board to consider his honorable service and honorable discharge prior to his deployment. REFERENCES: 1. Title 10, U.S. Code, section 1177 (Members diagnosed with or reasonably asserting post-traumatic stress disorder or traumatic brain injury: medical examination required before administrative separation) states: a. Medical Examination Required: (1) Under regulations prescribed by the Secretary of Defense, the Secretary of a military department shall ensure that a member of the armed forces under the jurisdiction of the Secretary who has been deployed overseas in support of a contingency operation, or sexually assaulted, during the previous 24 months, and who is diagnosed by a physician, clinical psychologist, psychiatrist, licensed clinical social worker, or psychiatric advanced practice registered nurse as experiencing post-traumatic stress disorder or traumatic brain injury or who otherwise reasonably alleges, based on the service of the member while deployed, or based on such sexual assault, the influence of such a condition, receives a medical examination to evaluate a diagnosis of post-traumatic stress disorder or traumatic brain injury. (2) A member covered by paragraph (1) shall not be administratively separated under conditions other than honorable, including an administrative separation in lieu of court-martial, until the results of the medical examination have been reviewed by appropriate authorities responsible for evaluating, reviewing, and approving the separation case, as determined by the Secretary concerned. (3) In a case involving post-traumatic stress disorder, the medical examination shall be performed by a clinical psychologist, psychiatrist, licensed clinical social worker, or psychiatric advanced practice registered nurse. In cases involving traumatic brain injury, the medical examination may be performed by a physician, clinical psychologist, psychiatrist, or other health care professional, as appropriate. b. Purpose of Medical Examination. The medical examination required by subsection (a) shall assess whether the effects of post-traumatic stress disorder or traumatic brain injury constitute matters in extenuation that relate to the basis for administrative separation under conditions other than honorable or the overall characterization of service of the member as other than honorable. c. Inapplicability to Proceedings under Uniform Code of Military Justice. The medical examination and procedures required by this section do not apply to courts-martial or other proceedings conducted pursuant to the Uniform Code of Military Justice. 2. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. The regulation states in: a. Chapter 14 – the policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and the commission of a serious offense (to include abuse of illegal drugs). Action will be taken to separate a member for misconduct when it was clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. b. Paragraph 3-7a – 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. Paragraph  3-7b – 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. d. Paragraph 3-7c – a discharge under other than honorable conditions is based on an administrative separation from the service, and may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial. When a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade. 3. PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster. a. The 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. b. From a historical perspective, the significant change ushered in by the PTSD concept was the stipulation that the etiological agent was outside the individual (i.e., a traumatic event) rather than an inherent individual weakness (i.e., a traumatic neurosis). The key to understanding the scientific basis and clinical expression of PTSD is the concept of "trauma." 4. PTSD is unique among psychiatric diagnoses because of the great importance placed upon the etiological agent, the traumatic stressor. In fact, one cannot make a PTSD diagnosis unless the patient has actually met the "stressor criterion," which means he or she has been exposed to an event that is considered traumatic. a. Clinical experience with the PTSD diagnosis has shown 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. b. Like pain, the traumatic experience is filtered through cognitive and emotional processes before it can be appraised as an extreme threat. Because of individual differences in this appraisal process, different people appear to have different trauma thresholds, some more protected from, and some more vulnerable to developing clinical symptoms after exposure to extremely stressful situations. 5. The Fifth Revision of DSM-5 was released in May 2013. This updated edition included changes to the diagnostic criteria for PTSD and acute stress disorder. The PTSD diagnostic criteria were revised to take into account things that have been learned from scientific research and clinical experience. The revised diagnostic criteria for PTSD include a history of exposure to a traumatic event that meets specific stipulations and symptoms from each of four symptom clusters: intrusion, avoidance, negative alterations in cognitions and mood, and alterations in arousal and reactivity. The sixth criterion concerns duration of symptoms; the seventh assesses functioning; and the eighth criterion clarifies symptoms as not attributable to a substance or co-occurring medical condition. a. Criterion A, stressor: The person was exposed to: death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence, as follows: (one required) (1) Direct exposure. (2) Witnessing, in person. (3) Indirectly, by learning that a close relative or close friend was exposed to trauma. If the event involved actual or threatened death, it must have been violent or accidental. (4) Repeated or extreme indirect exposure to aversive details of the event(s), usually in the course of professional duties (e.g., first responders, collecting body parts; professionals repeatedly exposed to details of child abuse). This does not include indirect non-professional exposure through electronic media, television, movies, or pictures. b. Criterion B, intrusion symptoms: The traumatic event is persistently re-experienced in the following way(s): (one required) * Recurrent, involuntary, and intrusive memories * Traumatic nightmares * Dissociative reactions (e.g., flashbacks) which may occur on a continuum from brief episodes to complete loss of consciousness * Intense or prolonged distress after exposure to traumatic reminders * Marked physiologic reactivity after exposure to trauma-related stimuli c. Criterion C, avoidance: Persistent effortful avoidance of distressing trauma-related stimuli after the event: (one required) * Trauma-related thoughts or feelings * Trauma-related external reminders (e.g., people, places, conversations, activities, objects, or situations) d. Criterion D, negative alterations in cognitions and mood: Negative alterations in cognitions and mood that began or worsened after the traumatic event: (two required) * Inability to recall key features of the traumatic event (usually dissociative amnesia; not due to head injury, alcohol, or drugs) * Persistent (and often distorted) negative beliefs and expectations about oneself or the world (e.g., "I am bad," "The world is completely dangerous") * Persistent distorted blame of self or others for causing the traumatic event or for resulting consequences. * Persistent negative trauma-related emotions (e.g., fear, horror, anger, guilt, or shame) * Markedly diminished interest in (pre-traumatic) significant activities * Feeling alienated from others (e.g., detachment or estrangement) * Constricted affect: persistent inability to experience positive emotions e. Criterion E, alterations in arousal and reactivity: Trauma-related alterations in arousal and reactivity that began or worsened after the traumatic event: (two required) * Irritable or aggressive behavior * Self-destructive or reckless behavior * Hypervigilance * Exaggerated startle response * Problems in concentration * Sleep disturbance f. Criterion F, duration: Persistence of symptoms (in Criteria B, C, D, and E) for more than one month. g. Criterion G, functional significance: Significant symptom-related distress or functional impairment (e.g., social, occupational). h. Criterion H, exclusion: Disturbance is not due to medication, substance. 6. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors, when taking action on applications from former service members administratively discharged under other than honorable conditions, and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 7. 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; sexual harassment. Boards were directed to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to 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 that misconduct which led to the discharge. 8. BCM/NRs are not courts, nor are they investigative agencies. Therefore, the determinations are based upon a thorough review of the available military records and the evidence provided by each applicant on a case-by-case basis. When determining if PTSD was the causative factor for an applicant's misconduct and whether an upgrade is warranted, the following factors must be carefully considered: * Is it reasonable to determine that PTSD or PTSD-related conditions existed at the time of discharge? * Does the applicant's record contain documentation of the occurrence of a traumatic event during the period of service? * Does the applicant's military record contain documentation of a diagnosis of PTSD or PTSD-related symptoms? * Did the applicant provide documentation of a diagnosis of PTSD or PTSD-related symptoms rendered by a competent mental health professional representing a civilian healthcare provider? * Was the applicant's condition determined to have existed prior to military service? * Was the applicant's condition determined to be incurred during or aggravated by military service? * Do mitigating factors exist in the applicant's case? * Did the applicant have a history of misconduct prior to the occurrence of the traumatic event? * Was the applicant's misconduct premeditated? * How serious was the misconduct? 9. Although DOD acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had PTSD at the time of discharge, it is presumed they were properly discharged based upon the evidence that was available at the time. a. Conditions documented in the record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which PTSD or PTSD-related conditions may be reasonably determined to have existed at the time of discharge; those conditions will be considered potential mitigating factors in the misconduct that caused the under other than honorable conditions characterization of service. b. BCM/NRs will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of under other than honorable conditions. 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. c. PTSD is not a likely a 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. 10. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant's discharge packet is not available for review. A DA Form 4833 included in CID’s records indicates he was administratively discharged for misconduct (serious offense) based on three charges against him, and at the time of his discharge his case was still in the adjudication process in a civilian court. 2. His complete discharge packet is not available for review; however, his record includes a DD Form 214 and, because the Board presumes that actions taken by the Army are administratively correct, this evidence suggests the proper and equitable processing of his discharge, and that his separation was executed in accordance with the Army regulations that were in effect at the time. 2. Current standards provide for liberal consideration in cases where civilian providers confer diagnoses of PTSD or PTSD-related conditions, when case records contained narratives that support symptomatology at the time of service, or when any other evidence which could reasonably indicate PTSD or a PTSD-related disorder existed at the time of discharge which might had mitigated the misconduct. 3. The ARBA psychiatrist, after reviewing the available records, reached the following conclusions: a. The applicant’s medical records do support a PTSD diagnosis at the time of discharge. b. The applicant’s medical records indicate that he met medical retention standards in accordance with AR 40-501 and separation through military medical channels was not indicated. c. The applicant did undergo the required medical examination and behavioral health examination prior to his discharge as required by Title 10, USC, section 1177. d. The lack of specific and accurate information regarding the nature of his serious misconduct (which led to his separation) makes it difficult to ascertain whether or not the applicant’s diagnosis of PTSD is a mitigating factor in his misconduct. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170002640 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170002640 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2