IN THE CASE OF: BOARD DATE: 12 October 2023 DOCKET NUMBER: AR20230001003 APPLICANT REQUESTS: in effect, correction of his records to show he was medically retired vice being discharged in lieu of trial by court-martial. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Brief in support of application * Previous Application and Allied Documents * Voided DD Form 214 (Certificate of Release or Discharge from Active Duty) * Reissued DD Form 214 * Previous ABCMR Docket Number AR20210006778, 16 August 2021 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he is seeking consideration for a medical retirement. Despite PTSD (post-traumatic stress disorder), the Army failed to properly diagnose or treat the PTSD. He has exhausted all other options and received partial relief from the Board. He now seeks a medical retirement. It is in the interest of justice to consider this request as timely. 3. The applicant’s counsel states: a. Pursuant to 10 U.S.C. § 1553, P.L. 95-126, and Department of Defense Instruction 1332.28, codified at 32 C.F.R. § 70.1 et seq., [His name] (hereinafter “the Applicant”) respectfully submits this application to for a medical retirement. The instant brief is for the purpose of this Honorable Board’s consideration of evidence while conducting a records review of the applicant’s discharge. This request is made for reasons of propriety and equity. b. After a deployment to Afghanistan where he saw wounded and dead servicemembers while refueling aircraft, the applicant experienced anger, irritability, nightmares, and flashbacks. To cope with these symptoms, he self-medicated with several substances, including alcohol and cocaine. He also went AWOL (absent without leave) several times when his symptoms were overwhelming. After testing positive for cocaine on a unit-wide urinalysis test, the applicant was charged with wrongful use of cocaine and being absent from his unit without authority. He then requested discharge in lieu of court martial, which was approved with an Under Other Than Honorable Conditions character of service. He has since applied to the Army Discharge Review Board. The requested upgrade and after two requests finally obtained an Honorable discharge. Based on the information now available the applicant contends that he should receive a medical retirement. c. The factual basis for this request is provided in the attached enclosures including the most recent decision of the Discharge Review Board and the materials submitted to that Board. Considering the facts and circumstances provided herein, the applicant respectfully requests that he be considered for a medical retirement based on his diagnosed mental illness that directly relates to his military service. 4. Review of the applicant’s service records shows: a. The applicant enlisted in the Regular Army on 18 October 2001. He underwent an enlistment physical that shows he was qualified for enlistment in the Army. He was trained in and held military occupational specialty 92F, Petroleum Supply Specialist. b. The applicant served in Afghanistan from 8 September 2002 to 23 March 2003. On return, he was assigned to Fort Lee, VA. c. On 20 February 2004, the applicant's unit reported his duty status from present for duty (PDY) to absent without leave (AWOL). On 24 February 2004, his duty status was changed from AWOL to PDY. d. On 2 March 2004, the applicant participated in a unit urinalysis and his urine sample tested positive for cocaine. e. A U.S. Army Criminal Investigation Command Report of Investigation, dated 22 March 2004, shows an investigation established probable cause to believe the applicant committed the offense of Wrongful Use of a Controlled Substance when cocaine residue was detected in his urine during a urinalysis on 2 March 2004. f. On 24 March 2004, an Army Substance Abuse (ASAP) Enrollment form was completed. This enrollment form shows the applicant had tested positive for the use of cocaine. He performance efficiency was rated as unsatisfactory, and his behavioral conduct was rated as fair. The commander felt the applicant had an alcohol and/or other drug problem. g. In an undated memorandum, Subject: Rehabilitation Failure Determination, a counselor stated the applicant was referred to ASAP on 24 March 2004 as a command referral. He was clinically evaluated and confirmed with a diagnosis of cocaine abuse on 7 April 2004. (1) His outpatient treatment plan included: * abstinence from alcohol and illegal drug usage while enrolled in ASAP * education group for a period of eight session * individual counseling as needed * random urinalysis and breathalyzer testing * an evaluation by the clinical consultant * attend CA or AA one time per week (2) He was scheduled for an initial intake on 1 April 2004, but it was rescheduled for 5 April 2004 because he presented a sick slip stating he was on quarters until 2 April 2004. His squad leader went to ASAP with him on 5 April 2004 requesting that the initial intake for the applicant be rescheduled because he had just gotten out of the hospital. The appointment was rescheduled for 7 April 2004. (3) On 9 April 2004, a rehabilitation team meeting was held in which the commander decided to enroll the applicant in ASAP. The applicant agreed with the commander and signed the form. (4) On 14 April 2004, the applicant went for his individual counseling session. But, on 19 April 2004, the applicant did not show up for his individual counseling session and on 20 April 2004, he did not show for his clinical evaluation by the clinical consultant and for the psychotherapeutic educational group. Several attempts had been made to contact the applicant through his chain of command, but he had failed to respond to any telephone calls. (5) The aforementioned information also reflects that the Soldier could not or would not comply with the standards set by his treatment plan. Non-compliance was grounds for rehabilitation failure. Such behavior casts a definite shadow over the applicant's military career. The complexity of his denial pattern left them no alternative but to recommend a rehabilitation failure. h. On 22 April 2004, the applicant's unit again reported his duty status from PDY to AWOL. On 23 April 2004, his duty status was changed from AWOL to PDY. i. On 27 April 2004, the applicant's duty status was changed from PDY to AWOL. On 29 April 2004, his duty status was changed from AWOL to PDY. j. On 29 April 2004, court-martial charges were preferred against the applicant. His DD Form 458 (Charge Sheet) shows he was charged with: * one specification of wrongful use of cocaine * one specification of being AWOL from 27 April 2004 to 29 April 2004. k. On 5 May 2004, after the applicant failed to report to formation/duty, he was reported in an AWOL status, and on 4 June 2004, he was dropped from the rolls as a deserter. He surrendered to military authorities and returned to duty on 10 June 2004. l. On 16 June 2004, after the applicant failed to report to duty, he was again reported in an AWOL status, and on 16 July 2004, he was dropped from the rolls as a deserter. He surrendered to military authorities and returned to duty on 26 July 2004. m. On 27 July 2004, the applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a discharge under other than honorable conditions, and of the procedures and rights that were available to him. Following consultation with legal counsel, the applicant requested voluntary discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 10 (in lieu of trial by court-martial). In his request for discharge, he indicated: * he acknowledged he understood the elements of the offense(s) charged and he was guilty of the charge(s) against him or of (a) lesser included offense(s) which authorizes the imposition of a bad conduct or dishonorable discharge * he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person * he did not desire any further rehabilitation under any circumstances because he had no desire to perform further service * he understood that if his discharge request were approved, he could be deprived of many or all Army benefits and he could be ineligible for many, or all benefits administered by the Veterans Administration * he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he asked that if his discharge is approved, to be issued a general, under honorable conditions discharge n. On 2 August 2004, following a legal review for legal sufficiency, and consistent with the chain of command’s recommendations, the separation authority approved the applicant's request for discharge in lieu of trail by court-martial under the provisions of Chapter 10, AR 635-200, with an under other than honorable conditions discharge and reduction to the rank of private (PVT/E-1). o. On 6 August 2004, the applicant was discharged accordingly. His DD Form 214 shows he was discharged under the provisions of chapter 10 of AR 635-200 with an under other than honorable conditions character of service, Separation Code KFS and Reentry (RE) Code 4. He completed 2 years, 6 months, and 19 days of net active service during this period with lost time from 20 to 23 February 2004, 22 April 2004, 27 to 28 April 2004, 5 May to 9 June 2004, and 16 June to 25 July 2004. He was awarded or authorized: Army Commendation Medal, National Defense Service Medal, Global War on Terrorism Service Medal, Army Service Ribbon. p. On 16 August 2022, the Board considered his request for an upgrade of his under honorable conditions (general) discharge to honorable, a change to his narrative reason for discharge from in lieu of Court-Martial to Secretarial Authority, an amendment of his separation code to an appropriate corresponding code, and a change to his RE Code from RE-4 to RE-1. (1) Prior to adjudicating his case, the agency psychologist was asked to review his request. Based on the available information, the psychologist opined that the applicant has a mitigating Behavioral Health condition, PTSD. As there is an association between PTSD and avoidant behavior, there is a nexus between applicant’s condition and his AWOL episode(s) from his unit, as well as missed rehab sessions. Also, as there is an association between PTSD and use of alcohol/illicit drugs to self-medicate symptoms, there is a nexus between his PTSD and the pattern of substance abusing behavior applicant demonstrated. Finally, as there is an association between PTSD and resistant, negative attitudes toward authority figures, there is a nexus between his PTSD symptoms and the disrespectful, disobedient behavior he demonstrated. Chronological review of his military career indicates a dramatic change in the applicant’s motivation, temperament and level of instability occurred following his deployment to Afghanistan. Such a radical change in behavior is consistent with the behavioral changes seen in soldiers who develop PTSD in a military-combat environment. (2) The Board carefully considered the applicants request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. (a) The applicant was charged with commission of an offense punishable under the UCMJ with a punitive discharge. After being charged, he consulted with counsel and requested discharge under the provisions of AR 635-200, Chapter 10. Such discharges are voluntary requests for discharge in lieu of trial by court-martial. His discharge was upgraded to under honorable conditions (general). The Board considered the medical records, any VA documents provided by the applicant and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding sufficient evidence of in-service mitigating factors to overcome the misconduct. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error but was unjust and voted to upgrade it to fully honorable. (b) The Board also noted that although the medical review found PTSD was a mitigating factor, the fact remains the applicant voluntarily, willingly, and in writing requested to be discharged, in lieu of trial by court-martial. The Board found his narrative reason for separation is therefore correct as “in lieu of trial by court-martial: and found no reason to change it. Additionally, a discharge under chapter 10 of AR 635- 200 carries a Separation Code of KFS, which has a corresponding RE Code of 3, both of which are correctly listed on his DD Form 214. The Board found no error or injustice with respect to these two codes. q. Based on the ABCMR’s decision, the applicant’s original DD Form 214 was voided. He was issued a new DD Form 214 that shows he was honorably discharged under the provisions of chapter 10 of AR 635-200. 5. By regulation, a member who has committed an offense for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 6. MEDICAL REVIEW: a. Request: Following the boards upgrade of his discharge to honorable, the applicant is requesting a correction of his record to show he was medically retired versus discharged in lieu of trial by court-martial. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a brief summary of information pertinent to this advisory: * The applicant enlisted in the Regular Army on 18 October 2001. * The applicant served in Afghanistan from 8 September 2002 to 23 March 2003. * On 29 April 2004, court-martial charges were preferred against the applicant. His DD Form 458 (Charge Sheet) shows he was charged with: one specification of wrongful use of cocaine and one specification of being AWOL from 27 April 2004 to 29 April 2004. * On 6 August 2004, the applicant was discharged. His DD Form 214 shows he was discharged under the provisions of chapter 10 of AR 635-200 with an under other than honorable conditions character of service. * On 16 August 2022, the Board considered his request for an upgrade. The applicant’s original DD Form 214 was voided. He was reissued a new DD Form 214 that shows he was honorably discharged under the provisions of chapter 10 of AR 635-200 with Separation Code KFS and Reentry (RE) Code 4. c. Review of Available Records Including Medical: The Army Review Boards Agency (ARBA) Behavioral Health (BH) Advisor reviewed this case. Documentation reviewed included the applicant’s completed DD Form 149, ABCMR Record of Proceedings (ROP), brief in support of application, previous application and allied documents, and two DD Forms 214. The VA electronic medical record and DoD health record available for review through Joint Longitudinal View (JLV). Lack of citation or discussion in this section should not be interpreted as lack of consideration. d. The applicant requests to be considered for a medical retirement based on his PTSD diagnosis related to his military service. The applicant contends, the Army failed to properly diagnose or treat his PTSD and he now seeks a medical retirement. He reports after deployment to Afghanistan where he saw wounded and dead servicemembers, he experienced symptoms of PTSD including anger, irritability, nightmares, and flashbacks. As a coping mechanism, he self-medicated with several substances, including alcohol and cocaine. He also went AWOL (absent without leave) several times when his symptoms were overwhelming. After testing positive for cocaine on a unit-wide urinalysis test, the applicant was charged with wrongful use of cocaine and being absent from his unit without authority. He then requested discharge in-lieu of trial by court martial, which was approved with an Under Other Than Honorable Conditions character of service. Based on the information now available, the applicant contends that he should receive a medical retirement. e. During his time in service, attempts were made to support and treat the applicant. On 24 March 2004, the applicant was command referred to Army Substance Abuse (ASAP). He was clinically evaluated and diagnosed with cocaine abuse, and outpatient treatment along with supportive services was recommended. He was scheduled for an initial intake on 1 April 2004 but rescheduled. His squad leader went to ASAP with him on 5 April 2004 requesting that the initial intake for the applicant be rescheduled. On 9 April 2004, a rehabilitation team meeting was held in which the commander decided to enroll the applicant in ASAP. The applicant agreed with the commander and consented. He attended an initial individual counseling session but, on 19 April 2004, the applicant did not show for his individual counseling session and on 20 April 2004, he did not show for a clinical evaluation. Several attempts were made to contact the applicant, but he failed to respond. f. The VA electronic record indicates the applicant is currently 100% service connected for PTSD. However, a C & P evaluation dated 22 March 2017 did not diagnose him with PTSD but with substance use. The psychiatrist at the time opined that the case was a dilemma due to the applicant’s substance use, inconsistencies in the applicant’s recounting of his identified stressors, and upon further assessment his symptoms did not align. In addition, the psychiatrists stated, “what he recounts as stressors today are at odds with his written statement from 2008, so it is not clear why he has alternate traumatic memories depending on when he is recounting the memories”. g. Overall, the record indicates, the Army did not fail to diagnose or treat his PTSD as asserted by the applicant. The Army attempted to provide the applicant with treatment that might have uncovered a mental health condition, but he refused to avail himself of the services that were offered. During his time in service, the applicant did not experience persistent or recurrence of symptoms that required hospitalization or symptoms that so greatly interfered with his performance to necessitate limitation of his duties in a protected environment. In addition, the applicant’s presentation, even post service, was inconsistent with a diagnosis of PTSD, as evidenced by the C & P evaluation dated 22 March 2017. h. Based on all available information, it is the opinion of this BH Advisor that there is insufficient evidence to support a referral to the IDES process at this time. Although the applicant has been service connected for PTSD, VA examinations are based on different standards and parameters; they do not address whether a medical condition met or failed Army retention criteria or if it was a ratable condition during the period of service. Therefore, a VA disability rating would not imply failure to meet Army retention standards at the time of service. A subsequent diagnosis of PTSD through the VA is not indicative of an injustice at the time of service. Furthermore, even an in-service diagnosis of PTSD is not automatically unfitting per AR 40-501 and would not automatically result in medical separation processing. Based on the documentation available for review, there is no indication that an omission or error occurred that would warrant a referral to the IDES process. In summary, his separation process appears proper, equitable and free of error, and insufficient new evidence has been provided to determine otherwise. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Not applicable. (2) Did the condition exist or experience occur during military service? Not applicable. (3) Does the condition or experience actually excuse or mitigate the discharge? Not applicable. BOARD DISCUSSION: 1. The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, and published Department of Defense guidance for liberal consideration of requests for changes to discharges. 2. A majority of the Board concurred with the conclusion of the ARBA BH Advisor that the evidence does not show the applicant had any conditions that warranted his referral to the Disability Evaluation System prior to his discharge. Based on a preponderance of the evidence, the Board determined the applicant’s administrative discharge in lieu of trial by court-martial was not in error or unjust. 3. The member in the minority found the applicant’s change in behavior during his service and his VA rating to be sufficient evidence to support a conclusion that he did not meet medical retention standards prior to his discharge. The member in the minority determined the applicant’s records should be referred to the Disability Evaluation System to determined if he should have been retired for disability. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X : 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 Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 3. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty. SPD code "KFS" is the correct code for Soldiers separating under the provisions of chapter 10 of Army Regulation 635-200, in lieu of trial by court-martial as the narrative reason for separation. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230001003 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1