IN THE CASE OF: BOARD DATE: 16 August 2023 DOCKET NUMBER: AR20230002305 APPLICANT REQUESTS: in effect, correction of his record to show he received an honorable discharge vice a general discharge due to post-traumatic stress disorder (PTSD). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending on 25 August 2006 * Department of Veterans Affairs (VA) Disability Rating, dated 6 March 2019 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), 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 was diagnosed with PTSD and was awarded 100 percent (%) disability rating, which was service-connected by the VA on 16 March 2019. He would like his discharge upgraded so he and his family can receive benefits. 3. The applicant provides a VA letter, which reflects he was given a service-connected disability rating of 100% for manic depression, bipolar, PTSD, and schizophrenia, effective 30 November 2018. 4. A review of the applicant’s service record shows: a. On 4 January 2005, he enlisted in the Regular Army. b. On 8 December 2005, the applicant received a positive command urinalysis result for the use of marijuana. c. On 17 January 2006, the applicant agreed to take a polygraph test, which was issued by the U.S. Army Criminal Investigation Command (CID) for the offense of wrongful possession/use/distribution of a controlled substance and false swearing. He was advised of all of his rights and provided a sworn statement wherein he admitted to the use of marijuana. d. DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ), dated 12 February 2006, shows he was charged with one specification of negligence, by discharging his rifle outside of the ADOC, one specification of making an official statement, with the intent to deceive, when asked if he ever used an illegal substance since joining the Army, to which he replied no, and knew that to be false, and two specification of wrongful use of marijuana. He was found guilty and received a reduction to the rank of private, forfeiture of pay of $636.00 per month for two months, and extra duty for 45 days. He did not appeal. e. DD Form 458 (Charge Sheet), dated 1 July 2006, shows the applicant was charged with Article 128 (Simple Assault) under the UCMJ on or about 28 June 2006. He pled and was found guilty and received forfeitures of $636.00 per month for one month, was recommended to attend anger management, and confinement for 15 days. f. DD Form 2807-1 (Report of Medical History), dated 5 July 2006, shows he used marijuana for recreational use prior to his entry into military service. No other issues were noted. g. His Report of Behavioral Health Evaluation, dated 5 July 2006, reflects his examination was normal, he was fully alert, fully oriented, had unremarkable mood, clear thinking process, normal thought content and his memory was good. He was psychiatrically cleared for administrative action, and was not a risk for harm to himself or others. It was also noted that he had the mental capacity to understand and participate in his separation processing. h. On 6 July 2006, he received a summary court-martial for Article 128 (Simple Assault). He pled and was found guilty. He was sentenced to receive forfeiture of pay of $636.00 per month for one month, confinement for 15 days, and stress anger management was recommended. i. Separation documents show his command initiated separation processing due to a pattern of misconduct. He was recommended and approved for separation, due to Army Regulation 635-200, Chapter 14-12b (Pattern of Misconduct) and received all rights afforded to him. j. DD Form 214 shows on 25 August 2006, he received an under honorable conditions (general) discharge due to a pattern of misconduct. He completed 1 year, 8 months, and 23 days of net active service this period. This document also shows he served in Iraq from 1 December 2005 to 2 August 2006. 5. MEDICAL REVIEW: a. Background: The applicant is requesting a discharge upgrade from General, Under Honorable Conditions to Honorable. He contends PTSD mitigates his discharge. b. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Below is a summary of information pertinent to this advisory: * Applicant enlisted in the RA on 4 January 2005. * On 4 July 2006 court-martial charges were preferred against him due to pattern of misconduct to include assaulting another soldier by striking her with his hands, negligent discharge of his weapon at FOB TAJI, making false official statements to a Special Agent while under investigation for drug use, and wrongfully using marijuana on two separate occasions. * The applicant was discharged from active duty on 02 Aug 2006 under AR 635- 200, Chapter 14-12b Pattern of Misconduct (Separation Code: JKA and Reentry Code 3). 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 293, ABCMR Record of Proceedings (ROP), DD Form 214, and documents from his service record and separation. The VA electronic medical record and DoD health record were reviewed through Joint Longitudinal View (JLV). Lack of citation or discussion in this section should not be interpreted as lack of consideration. d. A review of JLV was void of BH-related treatment during active duty and no hardcopy medical documentation was submitted for review. However, a letter dated 5 July 2006 indicates that the applicant attended anger management class while in theater after the assault. e. The Behavioral Health Evaluation, dated 05 July 2006, reflects the applicant was psychiatrically cleared for administrative action and had the mental capacity to understand and participate in the proceedings. He was fully alert, oriented, had unremarkable mood, clear thinking process, normal thought content and his memory was good. He was not at risk of harm to himself or others and denied homicidal and/or suicidal ideation. f. The applicant is 100% service connected for Schizoaffective Disorder as of 30 November 2018. Schizoaffective Disorder is a very serious mental condition characterized by impaired reality testing, auditory/visual hallucinations, delusional thinking, mood dysregulation and impaired impulse control. A psychiatric emergency room evaluation dated 18 November 2010 indicates the applicant presented to the hospital in a confused state with auditory hallucinations after being released from one month in jail and was diagnosed with PTSD, Schizophrenia, and Bipolar Disorder. A psychiatric evaluation dated 09 July 2019, to establish care with the VA, diagnosed the applicant with Schizoaffective Disorder and PTSD and reports a history of 10 to 15 inpatient psychiatric hospitalizations. The applicant indicated during that evaluation a history of ongoing auditory hallucinations since his time in service that he would deny. The applicant has been receiving ongoing psychotropic medication management from his VA provider. g. Based on the available information, it is the opinion of the Agency Behavioral Health Advisor that there is sufficient evidence of multiple potentially mitigating BH conditions. The applicant has been diagnosed with PTSD, Schizoaffective Disorder, and Bipolar Disorder since his misconduct, and the mental health conditions were likely present during his time in service. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? Yes. The applicant contends he was experiencing PTSD. (2) Did the condition exist or experience occur during military service? Yes, the applicant has been 100% service connected for Schizoaffective Disorder and has been diagnosed with PTSD by the VA. (3) Does the condition or experience actually excuse or mitigate the discharge? Partially. There is sufficient evidence of multiple potentially mitigating BH conditions. The applicant asserts mitigation due to PTSD and he is 100% service connected for Schizoaffective Disorder. Overall, the applicant has been diagnosed with PTSD, Schizoaffective Disorder, and Bipolar Disorder since his misconduct, and the mental health conditions were likely present during his time in service. Applicant’s BH conditions provide partial mitigation. Given the nexus between both PTSD and Bipolar Disorder and self-medicating with substances, applicant’s BH conditions likely contributed to the substance use that led to his separation. In addition, given the nexus between Bipolar Disorder and Schizoaffective Disorder and impaired reality testing, auditory hallucinations and difficulty with impulse control it is likely that the applicant’s BH conditions contributed to the negligent discharge of his weapon and the assault on the other soldier, so these misconducts are mitigated. The remaining misconduct of making a false official statement is not mitigated by any of applicant’s BH conditions because these conditions do not typically interfere with the ability to distinguish the difference between right and wrong and act in accordance with the right. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and medical review, the Board considered the advising official partially finding sufficient evidence of multiple potentially mitigating BH conditions. The applicant asserts mitigation due to PTSD and he is 100% service connected for schizoaffective disorder. The Board noted the opine, that overall, the applicant has been diagnosed with PTSD, Schizoaffective Disorder, and Bipolar Disorder since his misconduct, and the mental health conditions were likely present during his time in service. Applicant’s BH conditions provide partial mitigation. Furthermore, the Board gave consideration of the medical opine noting the nexus between both PTSD and Bipolar Disorder and self- medicating with substances, applicant’s BH conditions likely contributed to the substance use that led to his separation. In addition, given the nexus between bipolar disorder and Schizoaffective Disorder and impaired reality testing, auditory hallucinations and difficulty with impulse control it is likely that the applicant’s BH conditions contributed to the negligent discharge of his weapon and the assault on the other soldier, so these misconducts are mitigated. 2. However, the Board agreed that partial mitigation speaks to the applicant’s discharge of his weapon but found assault of another Soldier is conduct unacceptable as a mitigation consideration. The Board determined there was insufficient evidence in the record that demonstrated the applicant could not distinguish between right and wrong. Furthermore, making false statements is not mitigated by any of applicant’s BH conditions. The applicant was credited with 1 year, 8 months, and 23 days of net active service this period and was provided an under honorable conditions (General) characterization of service for misconduct. With consideration given by the Board for his deployment to Iraq, the Board found based on the preponderance of evidence for the misconduct and his length of service that the applicant's discharge characterization is warranted as he did not meet the standards of acceptable conduct and performance of duty for Army personnel to receive an Honorable discharge. Therefore, the Board denied relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :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 Army Board for Correction of Military Records (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 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14-12b establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. b. Paragraph 3-7a states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. 3. PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster. The Diagnostic and Statistical Manual of Mental Disorders (DSM) is published by the American Psychiatric Association (APA) and provides standard criteria and common language for the 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 under other than honorable conditions 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, traumatic brain injury (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, 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. 11. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs 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 discharge, which may be warranted on equity or relief from injustice grounds. The 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, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant. 12. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary’s Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the UCMJ, action to correct any military record of the Secretary’s Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the UCMJ or action on the sentence of a court- martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230002305 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1