IN THE CASE OF: BOARD DATE: 24 February 2020 DOCKET NUMBER: AR20180016239 APPLICANT REQUESTS: Through counsel, reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AR20160007341 on 2 August 2018. Specifically, he requests his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge and his narrative reason for separation be changed to Secretarial Authority. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 15 November 2018 * counsel's 13 page brief with 12 exhibits: * Exhibit 1 – DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 18 July 2014 * Exhibits 2-4 – copies of the Hagel, Carson, and Kurta Memoranda, regarding liberal consideration and clemency, published in 2014, 2016, and 2017, respectively * Exhibit 5 – 18 November 2013 Medical Evaluation Board (MEB) appeal memorandum * Exhibit 6 – 16 January 2014Request for Physical Evaluation Board (PEB) * Exhibit 7 – 16 January 2014 Memo Denial for Physical Evaluation Board * Exhibit 8 – CK Mental Health, M.A. private medical records (16 pages) * Exhibit 9 – 6 May 2014 Report Mental Status Evaluation (MSE) * Exhibit 10 – Brigadier General J MEMO request for a PEB * Exhibit 11 – 5 September 2013 Integrated Disability Evaluation System (IDES) Behavioral Health Review of [Applicant] * Exhibit 12 – 3 December 2013 Initial Counseling Memo FACTS: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20160007341 on 2 August 2018. 2. The applicant defers to counsel for arguments. 3. Counsel states the applicant's character of service should be upgraded on the basis of impropriety, due to changes in policies that are materially different from those that led to his discharge. He further states: a. The applicant's discharge was a direct result of the conduct related to his mental health condition and post-traumatic stress disorder (PTSD). b. The applicant's minor instances of poor judgment do not rise to the level of misconduct needed to support a discharge of this nature. c. The applicant acknowledges his fault in his violation of acceptable conduct. He asks that the Board consider that, in addition to the fact that it is inequitable to allow minor instances of misconduct to overshadow his distinguished record of service, he was under the burden of a mental health condition, the symptoms of which predisposed him to the misconduct that led to his discharge. 4. The applicant enlisted in the U. S. Army Reserve (USAR) on 22 July 2003. He served on active duty in support of Operation Iraqi Freedom between 14 April 2006 and 27 July 2007. He entered active duty in an Active Guard/Reserve (AGR) status on 24 November 2008. He reenlisted in the USAR AGR Program on 24 June 2011. 5. The applicant was involved in a motor vehicle accident on 17 February 2012. He was evaluated in a New York emergency room with treatment for neck and upper back pain. 6. The applicant's personnel record shows he received adverse counseling on the following dates: * on 13 June 2012, for reporting late for duty, not performing his required amount of maintenance work, not acting as a noncommissioned officer (NCO), failing to provide a copy of his physical profile, and not using his proper chain of command * on 14 October 2012, for being late to formation and disrupting the Army Physical Fitness Test (APFT) * on 16 October 2012, for a proposed Article 15 action for failing to go to his place of duty * on 26 January 2013, for a proposed action under Article 15 of the Uniform Code of Military Justice (UCMJ) or possible court-martial for disobeying direct orders from an NCO and a commissioned officer * on 10 February 2013, for conduct unbecoming an NCO * on 25 February 2013, for disregard and disrespect of following orders, lack of responsibility, lack of or no concern for unit mission * on 25 February 2013, for disrespecting a senior NCO and for failing to obey orders from a senior NCO * on 27 February 2013, for a proposed Article 15 action by disobeying a lawful order from a senior NCO, disobeying a lawful order from a warrant officer, lying to civilian police 7. The applicant received nonjudicial punishment (NJP) on 27 February 2013, under the provisions of Article 15 of the Uniform Code of Military Justice, for failing to go his place of duty on two occasions, disobeying a lawful order from a senior NCO (four specifications), disrespecting a commissioned officer, and disobeying a lawful order from a commissioned officer. 8. The applicant underwent an MEB on or about 5 September 2013, in which he was evaluated for thoracic myofascial pain syndrome and behavioral health issues. It was noted that his thoracolumbar strain did not meet the retention standards of Army Regulation 40-501 (Standards of Medical Fitness). 9. A U.S. Army Medical Department, Fort Carson memorandum to the President, Physical Evaluation Board (PEB), dated 5 September 2013, notes the applicant was evaluated for a behavioral health review for stress and anger management. The applicant was being treated for an adjustment disorder and occupational problems. 10. The applicant was referred for physical evaluation under the Integrated Disability Evaluation System program, where he was evaluated by Department of Veterans Affairs (VA) physicians and/or medical personnel between 18 September and 31 October 2013. 11. The applicant's unit commander notified the applicant on 7 October 2013 that she was initiating actions to separate him from service under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12b, due to a pattern of misconduct. 12. The applicant consulted with legal counsel on 7 October 2013 and was presented a Notification of Separation Proceedings under Army Regulation 635?200, Chapter 14; an Election of Rights for Separation Proceeding under Army Regulation 635?200, Chapter 14; and a Request for Conditional Waiver ? Separation Proceeding under Army Regulation 635?200, Chapter 14. a. He was advised of the basis for the contemplated discharge, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. b. Subsequent to receiving legal counsel, the applicant refused to acknowledge the proposed discharge action, make any election of his rights, and refused to acknowledge or request consideration of a conditional waiver. 13. The applicant's MEB Narrative Summary, dated 4 November 2013, shows he was evaluated for thoracic myofascial pain syndrome. The summary states: a. His command made the referral due to an inability to perform his military occupational specialty tasks, partially due to an injury and the rest for simple negligence and a poor work ethic. His treatment for these conditions continued after transfer to Fort Carson with referral to physical therapy. He was given a prognosis that the condition was stable but due to duration of symptoms and lack of response to treatment, his condition was not expected to improve in the next five years to a point he could resume his normal duties. He was found to meet retention standards for 13 additional conditions, including an adjustment disorder with mixed anxiety and depressed mood. b. There was no change in his medical condition since the IDES examinations were completed. He was referred to a PEB for further adjudication. 14. A U.S. Army Medical Department Activity, Fort Carson memorandum, addressed to the PEB Board at Joint Base Lewis McCord, dated 18 November 2013, notes that an MEB determined the applicant failed retention standards for cervical strain and adjustment disorder with mixed anxiety and depressed mood, chronic. The author of the memorandum, the MEB Appellate Authority, opined that the applicant's cervical strain did not fail to meet retention standards. 15. By memorandum dated 16 January 2014, the separation authority suspended further administrative separation processing pertaining to the applicant and instead, directed his referral to a PEB. The separation authority noted that although the applicant's administrative separation action had been initiated due to a pattern of misconduct, it was more appropriated to process him through the physical disability system. 16. In an undated memorandum, from the Commanding General, 451st Sustainment Command to the PEB Liaison Officer (PEBLO), the CG stated "Administrative separation action was initiated against SGT C due to a pattern of misconduct. I previously directed that he be referred to a PEB because I was concerned that his misconduct might have been related to PTSD. SGT C was subsequently arrested for domestic violence while serving probation for a crime of domestic violence. I intend to proceed with separation action that authorizes a characterization of service as under other than honorable conditions. A copy of the separation order will be provided when complete." 17. The separation authority approved the applicant's discharge on 31 March 2014, under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of a pattern of misconduct. 18. The applicant was afforded an MSE on 6 May 2014. It was determined that he met retention requirements. He did not meet diagnostic criteria for PTSD or any other medically disqualifying psychiatric conditions. 19. The applicant was discharged on 18 July 2014. The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b and his service characterization was UOTHC. His DD Form 214 shows he was awarded an Army Commendation Medal. 20. The Army Discharge Review Board denied the applicant's request for an upgrade and referral to a MEB on 15 June 2016. 21. The ABCMR reviewed the applicant's records and denied his request for reinstatement to active duty, for either a military occupational specialty (MOS) reclassification or referral to an MEB. The Board noted that the applicant had already been referred to an MEB that found the applicant had a medical condition that did not meet retention standards. However, in accordance with regulations, his medical processing was terminated when the commanding general determined he should be processed for separation for his misconduct. 22. The applicant’s counsel provided 17 pages of private medical records for the period 22 July 2014 through 16 October 2014, documenting treatment for depression and anxiety and copies of the 2014-2017 liberal guidance memoranda. 23. An advisory opinion was obtained from the Army Review Boards Agency medical advisor. The medical advisor determined that the records show the applicant had a behavioral health condition at the time of discharge, that he met retention standards, and that his adjustment disorder did not mitigate his domestic violence convictions. 24. A copy of the advisory opinion was forwarded to the applicant via his counsel on 7 October 2019. 25. The applicant’s counsel provided a rebuttal on or about 13 January 2020, wherein he stated: a. The applicant experienced severe trauma while enlisted in the Army. During a deployment, he directly witnessed his close friend killed by an IED. b. The applicant experienced consistent harassment by his command. The applicant's medical records mention these facts throughout. c. Written in the advisory opinion for this case, the psychologist suggests that the applicant's domestic violence charge, the misconduct for which he was discharged, is unrelated to his PTSD and the traumatic events he experienced in the Army. This is a complete disregard of current research. Current research suggests a link between combat-related PTSD and subsequent domestic violence. Specifically, much research has explored the effects that combat-related trauma and the subsequent PTSD may have on different aspects of relationship functioning and adjustment. In particular, PTSD has been linked with perpetrating intimate partner violence (IPV). d. Further, a top researcher with the VA explains that "Vets with PTSD are three times more likely to be violent." Additionally, "when one is exposed to war-zone trauma and combat trauma, they are going to be more likely to assume the worst and assume people are trying to do harm to them and more likely to respond to that with aggressions." (https://www.npr.org/sections/health-shots/2016/04/27/475908537/after- combat-stress-violencecan- show-up-at-home) e. The applicant respectfully requests the Board consider his position that the combat-related stressors, experiences of harassment and subsequent PTSD, mitigate the behavior that led to the other than honorable discharge. f. Counsel provides a copy of the PTSD/IPV article. The article addresses the issue of PTSD in the military and veterans as it is linked with perpetrating IPV. It states that: (1) New research and theoretical perspectives suggest that in order to respond effectively to IPV, a more accurate understanding of the direction of the violence experienced within each relationship is critical. (2) Of particular importance within military IPV research is the need to deepen understanding about the role of PTSD in bi-directional IPV not only as a risk factor for perpetration but also as a vulnerability risk factor for victimization, as findings from recent research suggest. (3) Results indicate that 7% of male military personnel and 4.8% of female military personnel reported engagement in bi-directional physical/sexual IPV. (4) The findings are limited, however, by the lack of exploring in more depth the motivational factors underlying the IPV beyond retaliation. And although PTSD symptom severity was examined, the role of PTSD symptoms themselves within each of the patterns was not, thus limiting the understanding of this dynamic. As certain types of combat exposure have been shown to increase the risk of IPV, more examination of PTSD symptoms and the traumatic events underlying them is necessary to fully understand the dynamic interplay of PTSD and IPV in military and veteran populations. (5) All but one of the studies reviewed confirmed through analyses bi-directional as the predominant pattern in veteran and, to some extent, in military active duty populations. However, collectively there was limited examination of the dynamic between PTSD and bi-directional IPV due to the lack of explicit analysis of this relationship and the limitations of measurements and samples that were employed. (6) In recognition that PTSD impacts the couple, conjoint treatment options for PTSD have been put forward; however, if and how these models are applicable when IPV is also involved has yet to be addressed. Future research that better explains the roles of PTSD as risk factor for IPV perpetration and victimization for each partner in military and veteran samples is essential to the development of safe and appropriate treatment options for these couples. 26. In counsel's original statement he contended: a. Department of Defense (DoD) liberal guidance memoranda direct that liberal consideration be applied in cases of this nature. b. The applicant's discharge and prior ABCMR review were improper in accordance with regulations and policies and did not include references or a proper review under the DoD liberalization policies. c. Liberal consideration does not mandate an upgrade but relief is appropriate for minor misconduct commonly associated with mental health conditions, including PTSD. 27. The applicant was afforded an MSE and an MEB. Following the initial unit commander's recommendation for discharge, the discharge authority directed the case be processed though medical separation processing. He changed his direction following the applicant's second civilian arrest for domestic violence, directing the applicant be discharged for a pattern of misconduct. 28. Although the specifics of both civilian domestic violence arrests and court actions are not of record (specifically, whether or not the charges included an assault with or without battery element), the Army may charge a Soldier for domestic violence as an associated charge under Article 128 of the UCMJ. Neither assault nor willful disobedience of a direct order from a commissioned officer are considered to be minor misconduct as counsel implies. 29. The article provided in counsel's rebuttal states that there may be (emphasis added) a linkage between PTSD and IPV (the charge of domestic violence that resulted in the applicant's separation); however, it also states that the sample sizes of the studies were small and future research was necessary (emphasis added) to better explain the roles of PTSD as a risk factor for IPV. 30. Counsel submitted, on 30 January 2002, a second copy of his 13 January 2020 rebuttal cover letter; a second copy of the PTSD/IPV article and 60 pages of VA treatment records; and progress notes from 4 January 2018 through 10 January 2020. a. A VA initial mental health assessment, dated 24 April 2019, states the applicant: * does not endorse PTSD symptoms * endorses the following mood symptoms: depression, less interest or enjoyment, Changes in sleep (+/-) * reports symptoms as" have issues with sleep, getting rest, anger issues here and there, issues with authority" * does not endorse psychotic symptoms * does not endorse anxiety symptoms * reports current/recent use/abuse of alcohol and other drugs * denies that his alcohol use interferes with his life * was given the provisional diagnosis of adjustment insomnia b. A progress note, dated 29 July 2019 was a referral for PTSD evaluation. The attending physician noted: c. In June 2015 the veteran underwent a compensation and pension examination and was diagnosed with Major Depressive Disorder, Single Episode, mild, with Anxious Distress. (1) In July 2016 the veteran reported for mental health treatment and stated that he was distressed because his girlfriend had broken up with him. He reported feeling worthless. He reported a high level of situational stress. (2) A provider diagnosed PTSD, though no clear rationale for this diagnosis was documented. Documentation from the encounter focused on the veteran's sense and of persecution by his chain of command. (3) Claim of "PTSD" - The soldier does not meet criteria for PTSD. He did not report significant avoidance symptoms and many of the behavioral health symptoms he endorsed were reportedly related to his conflict with his command and not with his deployment experiences. No diagnosis is made in connection with this claim. (4) Claim if "Adjustment Disorder" - The soldier meets criteria for a diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood. Onset of symptoms was in 2012, in the context of conflict with his current unit. The soldier's symptoms do not meet criteria for any anxiety disorder or mood disorder. (5) His Adjustment Disorder diagnosis accounts for his symptoms of low mood, low motivation, low energy, anxiety, worry, and irritability symptoms. d. None of the additional progress notes provided give a diagnosis of PTSD nor do they address the subject of spousal abuse. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, counsel’s statements and contentions, supporting documents and evidence, evidence in the records, regulatory requirements, and published DoD guidance for consideration of discharge upgrade requests. The Board noted the facts presented above. 2. The Board’s discussion of the contentions presented by the applicant’s counsel is incorporated in the facts above with each contention. The Board found insufficient evidence of in-service mitigation to overcome the misconduct and there was insufficient post-service evidence to justify a clemency determination. The Board found the character of service equitable under the circumstances. Based on a preponderance of evidence, the Board determined that there was no error or injustice in the applicant’s discharge or character of service, or basis for clemency. 2. After reviewing the application and all supporting documents, the Board found that relief is not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 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 ABCMR in this case. REFERENCES: 1. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that 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. 2. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), dated 8 February 2006 (rapid action revision issued on 20 March 2012), in effect during the applicant's separation process, governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. Paragraph 4-3 provides that an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision that authorizes a characterization of service of UOTHC. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. It provides: 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 4. Black's Law defines domestic violence as violence or other abuse by one person against another in a domestic setting, such as in marriage or cohabitation. It takes a number of forms, including physical, verbal, emotional, economic, religious, reproductive, and sexual abuse, which can range from subtle, coercive forms to marital rape and to violent physical abuse such as choking, beating, female genital mutilation, and acid throwing that results in disfigurement or death. 5. The Manual for Court-Martial Article 128 states: a. Assault is an unlawful demonstration of violence, either by an intentional or by a culpably negligent act or omission, which creates in the mind of another a reasonable apprehension of receiving immediate bodily harm. Specific intent to inflict bodily harm is not required. b. Any person subject to this chapter who attempts or offers with unlawful force or violence to do bodily harm to another person, whether or not the attempt or offer is consummated, is guilty of assault and shall be punished as a court-martial may direct. 6. The UCMJ Table of Maximum Punishment provides that the maximum punishment under: a. Article 90 for willfully disobeying lawful order of superior commissioned officer, confinement for 5 years, total forfeiture of all pay and allowances, and a DD or BCD. b. Article 128 for assault: (1) Simple assault ? confinement for 3 months and forfeiture of 2/3 pay and allowances for 3 months. (2) Assault consummated by battery ? confinement for 6 months, total forfeiture of all pay and allowances, and a BCD. 7. Secretary of Defense Hagel directed, on 3 September 2014, 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. 8. The Under Secretary of Defense for Personnel and Readiness provided clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, traumatic brain injury (TBI), sexual assault, or sexual harassment. Standards for review should rightly consider the unique nature of these cases and afford each veteran a reasonable opportunity for relief even if the sexual assault or sexual harassment was unreported, or the mental health condition was not diagnosed until years later. 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. a. Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. b. An honorable discharge characterization does not require flawless military service. Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. c. Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 9. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180016239 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20180016239 11 ABCMR Record of Proceedings (cont) AR20180016239 10