IN THE CASE OF: BOARD DATE: 14 December 2017 DOCKET NUMBER: AR20170002924 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 voiding his DD Form 214 for the period ending 2 June 2011 and issuing him a new DD Form 214 for this period showing his service was characterized as under honorable conditions (general) and, if applicable, showing the rank, grade, and date of rank he held prior to being reduced to the lowest enlisted grade in conjunction with his discharge processing. 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: AR20170002924 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: AR20170002924 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 6 February 2002 and held military occupational specialty 12Y (Geospatial Engineer). 2. Records indicate he served in the designated imminent danger pay area Afghanistan from 13 July 2006 through 15 November 2006. 3. His noncommissioned officer evaluation reports (NCOERs) covering the periods 1 February 2006 through 31 January 2007 and 1 February 2007 through 31 January 2008 show he was rated "Yes" in all Army Values and "Excellence," "Success," "Among the Best," "Successful/2," "Successful/1," and "Superior/1" in all other categories by his rater and senior rater. There is no indication of any unfavorable actions on the part of the applicant in these NCOERs. 4. In June 2009, his rater rendered a change-of-rater NCOER covering the period 10 September 2008 through 1 May 2009. a. In Part IVa (Army Values), his rater placed an "X" in the "No" block for "Respect/Equal Opportunity (EO)/Equal Employment Opportunity" and entered the bullet comment: "failed to treat Soldiers IAW [in accordance with] EO policies." b. In Part IVd (Leadership), his rater placed an "X" in the "Needs Improvement (Some)" block and entered the bullet comment: "founded EO complaint lodged; received training to correct behavior and Soldier is recoverable." 5. Headquarters, U.S. Army Garrison, Hawaii, Permanent Order C2-078-039, dated 19 March 2009, ordered him to proceed on deployment to Iraq on or about 4 June 2009 in support of Operation Iraqi Freedom. 6. Landstuhl Regional Medical Center Orders A-09-926335, dated 26 September 2009, reassigned him to Tripler Army Medical Hospital, HI, effective the date of the orders for the purpose of medical evacuation and further medical treatment. 7. In October 2009, his rater rendered a change-of-rater NCOER covering the period 2 May 2009 through 30 September 2009. a. In Part IVa (Army Values), his rater placed an "X" in the "No" blocks for "Respect/EO/Equal Employment Opportunity," "Honor," and "Integrity" and entered the following bullet comments: * displayed disruptive behavior towards members of his team by not treating them with respect * untruthful about his actions; willing to compromise his integrity in order to defend his actions b. In Part IVb (Competence), his rater placed an "X" in the "Needs Improvement (Much)" block and entered the following bullet comments: * failed to comply with instructions from superiors on several occasions * failed to seek self-improvement after several counseling sessions c. In Part IVd (Leadership), his rater placed an "X" in the "Needs Improvement (Much)" block and entered the bullet comment: "perception of improper conduct adversely affected morale and discipline, and became a distraction within the section." d. In Part IVf (Responsibility and Accountability), his rater placed an "X" in the "Needs Improvement (Some)" block and entered the bullet comment: "constantly complained about lawful orders given by superiors." e. In Part Va (Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), his rater placed an "X" in the "Marginal" block. f. In Part Vc (Senior Rater – Overall Performance), his senior rater placed an "X" in the "Poor/5" block. g. In Part Vd (Senior Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), his senior rater placed an "X" in the "Poor/5" block. h. In Part Ve (Senior Rater Bullet Comments), his senior rater entered the following bullet comments: * do not promote * do not send to next level NCOES [Noncommissioned Officer Education System] until this Soldier displays better judgement and maturity * do not assign to positions of leadership without close supervision * Soldier displayed no desire to overcome his shortcomings * Soldier's improper conduct and failure to comply with instructions from superiors adversely affected the section 8. In November 2010, his rater rendered a change-of-rater NCOER covering the period NCOER 1 October 2009 through 30 September 2010. a. In Part IVa (Army Values), his rater placed an "X" in the "No" blocks for "Loyalty," "Honor," "Integrity," and "Personal Courage" and entered the following bullet comments: * conduct unbecoming of NCO; off duty performance resulted in multiple law enforcement intervention embarrassing the US Army * falsely communicated off duty performance to the chain of command * integrity is morally deficient; Soldier does not accept responsibility for his actions b. In Part IVf (Responsibility and Accountability), his rater placed an "X" in the "Needs Improvement (Some)" block and entered the bullet comment: "issued no contact order several times due to off duty performance unbecoming of a noncommissioned officer." c. In Part Va (Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), his rater placed an "X" in the "Marginal" block. d. In Part Vc (Senior Rater – Overall Performance), his senior rater placed an "X" in the "Fair/4" block. e. In Part Vd (Senior Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the senior rater placed an "X" in the "Poor/5" block. f. In Part Ve (Senior Rater Bullet Comments), the senior rater entered the following bullet comments: * SM [service member] refused to sign * do not promote * do not send to ALC [Advanced Leader Course] * allowed the hardships of family life to severely affect his performance * repeated investigations regarding domestic violence makes this Sergeant unfit and unable to lead future Warriors 9. The facts and circumstances surrounding his discharge under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14, for misconduct are unknown as his discharge packet is not available for review in the interactive Personnel Electronics Records Management System (iPERMS). 10. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 2 June 2011 under the authority of Army Regulation 635-200, chapter 14, for misconduct (serious offense). He completed 9 years, 3 months, and 2 days of active service during this period. His service was characterized as under other than honorable conditions (UOTHC). 11. There is no evidence of record he received a medical examination during his separation processing as required by Title 10, U.S. Code, section 1177. 12. His military records available for review in the iPERMS do not contain any evidence indicating he was ever diagnosed with or treated for PTSD during his time in service. 13. There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 14. The Army Review Boards Agency Medical Advisor/Psychologist provided an advisory opinion on 3 April 2017 wherein he states: a. He reviewed the applicant's available records in Armed Forces Health Longitudinal Technology Application (AHLTA), iPERMS, and the Department of Veterans Affairs (VA) records available in the Joint Legacy Viewer. b. The applicant was in the medical evaluation board (MEB) process when a brigadier general apparently selected his administrative discharge over discharge through the MEB. Records are not available regarding the exact nature of his misconduct. c. A review of AHLTA notes indicate he was in a domestic violence therapy group run by the Family Advocacy Program at Tripler Army Medical Hospital, HI. The domestic violence was apparently directed at his fourth wife, who left Hawaii in early 2011. A medical note in February 2011 indicated the applicant had violated a military protection order at least once. The military protection order was lifted after his wife was living in the mainland. d. AHLTA shows in some notes the applicant reported the domestic violence problems had to do with alleged bipolar disorder. He had a wide range of mental health conditions diagnosed and had at least two reported suicide attempts, including one that led to hospitalization. An attempt was once made in 2011 to assess his personality pathology using the Minnesota Multiphasic Personality Inventory-2, but he produced an invalid and hence uninterpretable psychological profile rating. Various reasons can produce invalidity, including inconsistent responding, over-reporting of symptoms, and refusal to acknowledge even minor imperfections, are examples of response styles that produce invalid psychological profiles. It is unclear what style led to his responding as he did. Based on available records, he does seem to have a history of reporting large numbers of symptoms. His numerous psychiatric diagnoses include PTSD. He also suffered from the deaths of two of his children in September 2004. His then-wife apparently left the house unattended and a fire occurred that killed their two children (ages reported as 3 and 6 years old). e. Given that a brigadier general selected administrative discharge over MEB processing, based on AHLTA records, the command presumably had awareness of the applicant's mental health problems. This case cannot be mitigated by reason of mental health as it now stands because too little is known about the misconduct to know what is being mitigated and the clearest example of what is known, a violation of a military protection order, would not be mitigated by his conditions. Per the available records, he was at no point psychotic and he also had legal counsel. f. The applicant's medical records at the time of his separation do reasonably support him having had a boardable medical condition for that period and he did not meet medical retention standards in accordance with Army Regulation  40-501 (Standards of Medical Fitness) and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). The available case material did support the existence of a potentially mitigating mental health condition at the time of his misconduct. His available records do not include an exit medical examination as required by Title 10, U.S. Code, section 1177, but an MEB examination could be found. g. Based on the available behavioral health evidence, there is insufficient evidence to mitigate the applicant's behavior based on PTSD, TBI, depression, or another behavior health condition. Despite his difficulties and the poor character of his discharge, he was assigned a 90-percent service-connected disability rating by the VA. In addition, AHLTA notes indicate the applicant's lawyer was presenting evidence about the applicant's mental status and treatment to the command during the discharge versus MEB process. h. It is unknown if the applicant's mental health conditions were considered at the time of his discharge from the Army; however, a general officer apparently deliberately selected an administrative discharge over an MEB. A review of available documentation did not discover evidence of mental health considerations that bear on the character of the discharge in this case. A mitigating nexus between his misconduct and his mental health was not discovered. 15. The applicant was provided a copy of the advisory opinion on 5 April 2017 and given an opportunity to respond. 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 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 14, in effect at the time, provided that a member who had committed an offense or offenses for which the authorized sentence included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges were preferred. A discharge UOTHC was normally appropriate for a Soldier who was discharged in lieu of trial by court-martial. However, the separation authority could direct a general discharge if such were merited by the Soldier's overall record during the current enlistment. For Soldiers who completed entry-level status, characterization of service as honorable was not authorized unless the Soldier's record was otherwise so meritorious that any other characterization clearly would have been improper. 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. 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. 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." 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 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. 5. 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. 6. 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 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. 7. 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. 8. 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? 9. 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. 10. 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. 11. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant's DD Form 214 shows he was discharged for misconduct (serious offense) under the authority of Army Regulation 635-200, chapter 14. His service was characterized as UOTHC. 2. The facts and circumstances surrounding the applicant's separation for misconduct are not available for review and the exact nature of his misconduct is unknown. A review of multiple NCOERs show comments, including those referencing a founded EO complaint, compromised integrity, conduct unbecoming of an NCO, off-duty performance resulting in multiple law enforcement interventions embarrassing the U.S. Army, and repeated investigations regarding domestic violence. It is unknown whether any of these instances of misconduct are what resulted in his eventual discharge. In the absence of evidence showing error or injustice in his discharge processing, administrative regularity must be presumed. 3. There is no indication his discharge was not accomplished in compliance with applicable regulations without procedural errors which would have jeopardized his rights. It is therefore presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. 4. Nonetheless, Soldiers who suffer from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible recharacterization of their overall service. 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. 5. His military records available for review in iPERMS do not contain any evidence he was ever diagnosed with or treated for PTSD during his time in service, but the Army Review Boards Agency Medical Advisor/Psychologist stated he was able to see the applicant had numerous psychiatric diagnoses in the AHLTA and VA records available in the Joint Legacy Viewer, including PTSD. 6. The Army Review Boards Agency Medical Advisor/Psychologist stated in his advisory opinion that despite the behavioral health problems the applicant began to describe in 2014, none of his behavioral health conditions mitigate his repeated misconduct perpetrated for personal gain. The applicant's medical records at the time of his discharge did support he had had a boardable medical condition for that period, as evidenced by his MEB examination. Although it is unknown, it is presumed his mental health conditions were considered at the time of his discharge from the Army, as there is evidence in AHLTA indicating the applicant underwent an MEB examination and evidence about the applicant's mental status and treatment was presented by his lawyer during a process to determine whether he would receive an administrative discharge or discharge via medical channels, after which a brigadier general chose the administrative discharge. 7. The Army Review Boards Agency Medical Advisor/Psychologist further stated a review of available documentation did not discover evidence of mental health considerations that bear on the character of the applicant's discharge in this case. A mitigating nexus between his misconduct and his mental health was not discovered. Although the exact misconduct for which he was discharged is unknown, the known misconduct of domestic violence and violation of a military protection order would not be mitigated by his conditions. Per the applicant's available records, he was at no point psychotic and he had legal counsel. 8. There is no evidence of record indicating he received a medical examination during his separation processing as required by Title 10, U.S. Code, section 1177. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170002924 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170002924 13 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2