IN THE CASE OF: BOARD DATE: 14 December 2017 DOCKET NUMBER: AR20170002692 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing his DD Form 214 to show the character of his service as general under honorable conditions. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. IN THE CASE OF: BOARD DATE: 14 December 2017 DOCKET NUMBER: AR20170002692 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :RCJ :DRA :DT GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 14 December 2017 DOCKET NUMBER: AR20170002692 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) (ASAMRA) submits an application on behalf of a group of Soldiers requesting that 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) or Traumatic Brain Injury (TBI): Medical Examination Required before Administrative Separation), occurred during these Soldiers' separation processing; and 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 ASAMRA was unable to confirm that these Soldiers' PTSD and TBI diagnoses were considered by the separation authority during separation processing. 3. The ASAMRA provides an attached list of Soldiers who may have been affected by a potential violation of Title 10, U.S. Code, section 1177. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 13 July 2005 for a period of 4 years. 2. He served in Iraq from 18 November 2006 to 12 December 2007. 3. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his immediate reenlistments as 19 March 2010 and on 1 November 2011. 4. Headquarters, Fort Bliss, Orders BL-171-0140, dated 20 June 2011, ordered his deployment in support of Operation New Dawn in Iraq on or about 5 August 2011 for 365 days. 5. On 5 April 2012, he underwent a mental status evaluation and was diagnosed as having an anxiety disorder (not otherwise specified) with sexual trauma. The report stated he had a history of PTSD, but it was not the cause of his misconduct. He was cleared for administrative action. 6. On 2 May 2012, he was notified of his pending separation for misconduct (abuse of illegal drugs) under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c(2). The unit commander cited he used cocaine and failed to report on various occasions as the specific reasons for the proposed action. 7. The Commander's Report of Proposed Separation, dated 4 May 2012, shows nonjudicial punishment was imposed against the applicant on 16 April 2012 for using cocaine and failing to report on various occasions. 8. On 4 May 2012, he was advised by counsel of the basis for the separation action. He waived consideration of his case by an administrative separation board, waived a personal appearance, and waived consultation with counsel. He acknowledged that he might encounter substantial prejudice in civilian life if he were issued a discharge under other than honorable conditions (UOTHC). He elected not to submit a statement in his own behalf. 9. On 17 May 2012, the separation authority approved the recommendation for discharge and directed characterization of his service as UOTHC. 10. He was discharged for misconduct (drug abuse) on 31 May 2012 under the provisions of Army Regulation 635-200, paragraph 14-12c(2). He completed a total of 6 years, 10 months, and 18 days of creditable active service. His service was characterized as UOTHC. 11. There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge. 12. An advisory opinion was rendered by the Army Review Boards Agency Psychiatrist, dated 28 February 2017, wherein she stated: a. The applicant's military medical records show he was diagnosed with the following medical conditions: * atypical parasomnia (not otherwise specified) on 9 March 2006 * night terror disorder and delayed PTSD based on his traumatic experiences as a child on 11 October 2006 * anxiety disorder (not otherwise specified) on 11 December 2006 * adjustment disorder on 20 July 2007 * recurrent major depression on 9 March 2009 * recurrent major depressive disorder and delayed onset PTSD on 11 March 2009 * depression on 25 October 2010 * PTSD on 8 November 2010 * alcohol dependence on 29 March 2011 b. On 5 April 2012, he underwent a command-directed mental status evaluation for an administrative separation. During this evaluation, the examining psychologist wrote the applicant endorsed symptoms of PTSD for which he was in treatment with a civilian provider as recently as 2010. There is only a provisional diagnosis of PTSD and diagnosis of depression from military providers. While he screened positive for PTSD that day, it was not believed that this condition contributed to the reason for his administrative discharge for misconduct. He acknowledged intentional drug use in order to be separated. He screened negative for TBI. He was cleared for administrative separation processing. c. His mental status evaluation, dated 5 April 2012, reported that he had a normal mental status examination with no abnormalities in cognition, behavior, or perceptions noted. He was found to not be impulsive or dangerous. He could understand the difference between right and wrong and could participate in and understand administrative proceedings. He screened positive for PTSD and negative for TBI. His diagnoses were listed as PTSD, by history and alcohol dependency. d. A review of the applicant's Department of Veterans Affairs (VA) medical record problem list includes sprain of ligaments, cannabis abuse, major depression, and pain in the thoracic spine. Additionally, the VA has carried over the diagnosis of PTSD from the Department of Defense. e. In conclusion, the applicant suffered from both major depression and PTSD while serving on active duty. Both of these conditions existed prior to service. It appeared that military service worsened both of these conditions, most notably the applicant's PTSD. He was diagnosed with PTSD in 2006, 2008, and 2010. He had a combat history and it is documented in his VA records that he reported being exposed to improvised explosive devices, gunfire, mortars, and rocket attacks. In 2010, he received treatment for PTSD from a private provider. His condition worsened while serving in the military despite being the focus of behavioral health treatment for many years. f. The applicant has been diagnosed with PTSD. While it is true that his diagnosis of PTSD existed prior to service, there is evidence that his military service exacerbated and worsened this condition. As such, PTSD is considered a mitigating condition for the offenses leading to his discharge from the Army. As PTSD is associated with avoidant behaviors, his deliberate use of cocaine to get out of the Army can be considered as a type of avoidant behavior. 13. A copy of this advisory opinion was provided to the applicant for comment and/or rebuttal. He did not respond. REFERENCES: 1. Title 10, U.S. Code, section 1177, provides: 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 PTSD or TBI 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 PTSD or TBI. (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 PTSD, the medical examination shall be performed by a clinical psychologist, psychiatrist, licensed clinical social worker, or psychiatric advanced practice registered nurse. In cases involving TBI, 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 PTSD or TBI 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. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty. a. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. 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. c. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense. The issuance of a discharge UOTHC is normally considered appropriate. 3. The Diagnostic and Statistical Manual of Mental Disorders (DSM), chapter 7, addresses trauma and stress or related disorders. The DSM is published by the American Psychiatric Association (APA) and provides standard criteria and common language for classification of mental disorders. 4. In 1980, the APA added PTSD to the third edition of its DSM nosologic classification scheme. Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice. 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." 5. 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. 6. The fifth edition of the DSM 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 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 criterion assesses functioning, and the eighth criterion clarifies symptoms as not attributable to a substance or co-occurring medical condition. 7. As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis, and treatment of PTSD, the Department of Defense (DOD) acknowledges that some Soldiers who were administratively discharged under other than honorable conditions (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 Soldiers' 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 a 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. 8. On 3 September 2014 in view of the foregoing information, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicants' service. 9. 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? 10. 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 records 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. 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 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. BCM/NRs 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. 11. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD, TBI, sexual assault, or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. The guidance further describes evidence sources and criteria and requires boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. DISCUSSION: 1. The evidence of record shows the applicant was discharged for misconduct (drug abuse) on 31 May 2012. 2. His record of service during his last enlistment included one nonjudicial punishment for using cocaine and failing to report on various occasions. 3. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The type of discharge directed and the reason for discharge were appropriate considering all the facts of the case. 4. The Army Review Boards Agency Psychiatrist determined: a. The applicant has been diagnosed with PTSD. b. While it is true that his diagnosis of PTSD existed prior to service, there is evidence that his military service exacerbated and worsened this condition. As such, PTSD is considered a mitigating condition for the offenses leading to his discharge from the Army. As PTSD is associated with avoidant behaviors, his deliberate use of cocaine to get out of the Army could be considered as a type of avoidant behavior. 5. This nexus may serve as a basis for a recommendation to upgrade the characterization of his service to general under honorable conditions. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170002692 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170002692 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2