IN THE CASE OF: BOARD DATE: 7 December 2017 DOCKET NUMBER: AR20170002837 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 issuing him a new DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows his service characterization as under honorable conditions (general). 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: 7 December 2017 DOCKET NUMBER: AR20170002837 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :ATD :LAG :QAS 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: 7 December 2017 DOCKET NUMBER: AR20170002837 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 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. 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 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, section 1177. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 12 May 2000. He completed initial entry training and was awarded military occupational specialty 31B (Military Police). 2. The applicant served in Iraq from 18 May 2007 through 2 August 2008. 3. A DD Form 458 (Charge Sheet), dated 2 May 2009, shows court-martial charges were preferred against the applicant for being absent without leave (AWOL) during a period beginning on or about 1 April 2009. 4. A DD Form 616 (Report of Return of Absentee), dated 25 July 2009, shows the applicant was returned to military control on 25 July 2009. 5. On 1 February 2010, the applicant underwent a mental status evaluation for the purpose of administrative separation, wherein it was determined: * his behavior was normal * he was fully alert and oriented * his thinking was clear with normal thought content * his memory was good * he was mentally responsible * he could understand and participate in administrative actions deemed necessary by command 6. On 17 March 2010, the applicant acknowledged notification of the contemplated separation action under Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14-12b. He further acknowledged he was subject to a characterization of service under other than honorable conditions. He waived his right to consult with counsel and to have his case considered by an administrative separation board. 7. On 25 March 2010, the applicant's commander recommended his separation under the provisions of Army Regulation 635-200, chapter 14-12b, for patterns of misconduct with his service characterized as under other than honorable. 8. On 31 March 2010, the approval authority approved the discharge recommendation and directed the applicant receive an under other than honorable conditions characterization of service. 9. The applicant was discharged on 14 April 2010, under the provisions of Army Regulation 635-200, chapter 14-12b, pattern of misconduct. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was credited with 9 years, 7 months, and 4 days of net active service, his service was characterized as under other than honorable conditions. 10. There is no indication in the available records that the applicant applied to the Army Discharge Review Board for a review of his discharge within that boards 15-year statute of limitations. 11. On 17 March 2017, the Army Review Boards Agency (ARBA) medical advisor/psychologist provided an advisory opinion, which states: a. A review of the applicant’s electronic military medical record indicates on 24 May 2006, the applicant met with psychology and his chief complaint was work related stress. He was diagnosed with adjustment disorder with anxiety and depressed mood. On 7 June 2006, Behavioral Health (BH) documented that the applicant was attending anger management sessions to learn how to deal with his anger issues. b. On 18 August 2008, the applicant underwent an assessment for TBI. During this assessment, he reported he had been near several close blasts in November 2007 while deployed. Following the blasts, he developed a headache, dizziness, amnesia, irritability, and memory issues. He was diagnosed with a concussion with brief loss of consciousness. He was seen by Neurology on 4 September 2008 at which time it was documented that his symptoms of headache and cognitive dysfunction were improving. c. On 10 October 2008, he underwent a post-TBI Cognitive Evaluation. This evaluation indicated the applicant had mild deficits in immediate and delayed memory. As a result of this testing, he began Cognitive Retraining Therapy. He attended this therapy from 14 October to 18 November 2008. Memory testing conducted after he finished the therapy indicated his recall skills were now within the normal range. d. On 30 December 2008, the applicant was seen by Psychology. During this visit, he reported intrusive memories, nightmares, avoidance of usual activities, emotional numbing, insomnia, anger, irritability, hypervigilance, and increased startle reaction. He was diagnosed with PTSD (DSM-IV criteria). On 31 December 2008, he was evaluated by Psychiatry and was started on Prozac (fluoxetine) for his PTSD symptoms. e. On 9 September 2009, the applicant was assessed by Psychology. During this evaluation, he reported that he came back from Iraq angry and “everything went downhill from there.” While in Iraq, his mother died of a massive heart attack. Upon returning to the continental U.S., he reported that his chain of command would not let him make his BH appointments. He reported he decided to go AWOL (April through 1 August 2009). While AWOL, he used heroin and was also diagnosed with Hepatitis C. The psychologist notes in her assessment, “Although SM notes that AWOL was not the military thing to do, he strongly feels that, since he kept getting blocked in his request to attend his psychiatry appointments, by going AWOL he saved his life as well as others.” He was diagnosed again with PTSD. f. On 18 September 2009, the applicant self-referred to the Army Substance Abuse Program (ASAP) after having a positive urinalysis for marijuana. He reported to the ASAP counselor that he was depressed after deployment due to multiple deaths in his family (mother and grandfather). He stated the command denied him access to BH care so he tried to kill himself by injecting himself on six separate occasions with heroin. When this was unsuccessful, he went AWOL. While AWOL, he used marijuana daily. ASAP diagnosed the applicant with cannabis dependence. On 29 September 2009, they added opioid abuse as an additional diagnosis. g. On 1 February 2010, the applicant underwent a separation mental status evaluation, which was normal. The applicant was determined to have the mental capacity to understand and participate in administrative proceedings, he was felt to be mentally responsible and he met medical retention requirements. The examiner also noted the applicant was seen by the TBI Clinic on 1 February 2010 for evaluation. Results of this evaluation were within normal limits on all domains and there was no indication of cognitive impairment. The applicant was cleared by the TBI Clinic for all administrative actions deemed necessary by the command. h. A review of the Department of Veterans Affairs electronic medical record indicates the applicant has been found to be 50% service connected for PTSD. i. The applicant’s military medical records support a PTSD diagnosis at the time of discharge. The applicant’s medical records indicate he met medical retention standards and separation through military medical channels was not indicated. His diagnosis of PTSD is a mitigating factor in his misconduct. The applicant did undergo the required medical examination and BH examination prior to his discharge as required by Title 10, Section 1177. 12. The applicant was provided a copy of the advisory opinion on 20 March 2017, for his review and to provide him an opportunity to rebut the opinion, if desired. He did not respond. REFERENCES: 1. Title 10, U.S. Code, section 1177, 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 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 UCMJ. The medical examination and procedures required by this section do not apply to courts-martial or other proceedings conducted pursuant to the UCMJ. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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. Paragraph 3-7b states 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. Paragraph 3-7c states 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. d. Chapter 14 establishes 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. 3. On 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 4. 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 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 misconduct that led to the discharge. DISCUSSION: 1. The evidence of record shows the applicant was AWOL for approximately 115 days and admitted to drug use. Based on this pattern of misconduct, his commander initiated separation action against him. 2. The applicant's separation under the provisions of Army Regulation 635-200, paragraph 14-12b, was administratively correct and in conformance with applicable laws and regulations in effect at the time. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 3. At the time of the applicant's discharge, PTSD was largely unrecognized by the medical community and DOD. However, both the medical community and DOD now have a more thorough understanding of PTSD and its potential to serve as a causative factor in a Soldier's misconduct when the condition is not diagnosed and treated in a timely fashion. Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warranting careful consideration for the possible re-characterization of their overall service. 4. The ARBA medical advisor conducted a review of the applicant's medical records and found sufficient evidence to show he did undergo the required medical examination and BH examination prior to his discharge, as required by Title 10, U.S. Code, section 1177. His military medical record also supports a diagnosis of PTSD at the time of discharge. 5. Based on the available evidence, the advisory official determined the applicant's PTSD diagnosis was a mitigating factor for the misconduct that led to his adverse discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170002837 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170002837 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2