IN THE CASE OF: BOARD DATE: 30 November 2017 DOCKET NUMBER: AR20170002846 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. IN THE CASE OF: BOARD DATE: 30 November 2017 DOCKET NUMBER: AR20170002846 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :mwm :dt :mra DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 30 November 2017 DOCKET NUMBER: AR20170002846 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. In accordance with a group application submitted by the Office of the Assistant Secretary of the Army (Manpower and Reserve Affairs) (ASA M&RA), to this Board, the applicant requests a record correction to show the upgrade of his character of service from under other than honorable conditions to honorable. The ASA M&RA requests the Board to: a. Determine if the separation authority properly considered the applicant's diagnosis of post-traumatic stress disorder (PTSD) and traumatic brain injury (TBI) during separation processing; if not, this is potentially a violation of Title 10, U.S. Code, section 1177 (Members Diagnosed with or Reasonably Asserting PTSD or TBI: Medical Examination Required before Administrative Separation). b. Based on the Board's findings, determine whether the applicant's PTSD or TBI diagnosis should result in an upgrade of his character of service. 2. The group application states ASA M&RA was unable to determine whether the applicant's PTSD and/or TBI diagnoses were properly considered by the separation authority during the applicant's separation processing. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 24 September 2001. He completed the following deployments during his period: * Afghanistan – 24 March 2011 to 24 March 2012 * Iraq (3 tours) – 31 March 2003 to 15 March 2004, 19 August 2005 to 19 August 2006, and 2 October 2008 to 2 October 2009 2. In November 2013, upon completion of a Criminal Investigation Command (CID) investigation, the applicant was charged with: * engaging in a lewd act with a female child under 16 years of age * causing sexual contact with a female child under 16 years of age * taking indecent liberties in the presence of a female child under 16 years of age with the intent to gratify himself sexually * causing sexual contact by pressing his erect penis against the hip of a female and causing bodily harm by laying on top of her * causing sexual contact by pressing his erect penis against the hip of a female without permission * committing indecent conduct by viewing a female while she urinated 3. On 13 January 2014, after being counseled, the applicant requested a discharge under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10, in lieu of a trial by court-martial. In his request for a discharge, he acknowledged: a. He was making the request of his own free will and had not been subjected to any coercion whatsoever by any person, he understood by submitting the request he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge. He stated that under no circumstances did he desire further rehabilitation for he had no desire to perform further military service. b. He had been fully advised of his rights under the Uniform Code of Military Justice (UCMJ), the elements of the offenses with which he was charged, the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty, the possible defenses which were available at the time, and the maximum punishment. Although counsel furnished him legal advice, the decision was his own. c. He understood if his request was approved he could be discharged under other than honorable conditions. He had been advised of the possible effects of an under other than honorable conditions discharge and that he may be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 4. As part of his separation processing the applicant was required to make a statement indicating whether he had been diagnosed with PTSD or TBI by a physician, clinical psychologist, or psychiatrist and if not, whether he believed that he experienced PTSD or TBI. He responded in the negative to both questions. 5. On 23 January 2014, the separation authority approved the applicant's request for discharge in lieu of court-martial and directed his service be characterized as under other than honorable conditions. On 12 February 2014, he was discharged accordingly. 6. On 17 April 2017, an Army Review Boards Agency (ARBA) psychologist provided an advisory opinion based on his review of the applicant’s available Department of Defense (DOD) electronic medical records, VA records, and Official Military Personnel File (OMPF). He noted the following: a. The applicant has mental health diagnoses in his DOD electronic medical records, with all mental health diagnoses emerging during a time he was in legal difficulty. His diagnoses include adjustment disorder, anxiety not otherwise specified, and nightmare disorder. A primary care provider did diagnose him one time with PTSD in 2014; however, his regular behavioral health provider had PTSD as a rule out, but never diagnosed it. The applicant was tested for PTSD on 12 November 2013 and scored below the cut-off score for a positive screen for PTSD. b. The applicant's medical records did not at the time of his discharge reasonably support him having had a boardable medical condition for that period and he did meet mental health standards in Army Regulation 40-501 and Army Regulation 635-40. The available case material did not support the existence of a mitigating mental health condition at the time of his misconduct. c. The available record did not include an exit medical examination required by Title 10, U.S. Code, section 1177. Based on the available evidence, there is no mitigation of the applicant's behavior based on PTSD, TBI, or other behavioral-health conditions. 7. His OMPF is void of any documentation associated with either a PTSD or a TBI diagnosis. 8. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 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 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 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 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. a. Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An under other than honorable conditions discharge normally was furnished an individual who was discharged for the good of the Service. b. 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. 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. DISCUSSION: 1. Although his record does not contain the medical examination required under the provisions of Title 10, U.S. Code, section 1177, the ARBA psychologist reviewed the available behavioral health evidence and found there was no mitigation of the applicant’s behavior based on either PTSD, TBI, or other behavioral health conditions. Further, the applicant made a written statement just prior to his discharge indicating that he was not diagnosed with nor did he believe he suffered from PTSD or TBI. 2. The applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. He subsequently requested a discharge in lieu of trial by court-martial. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. The characterization of service he received was commensurate with the reason for his discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170002846 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170002846 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2