IN THE CASE OF:	  

		BOARD DATE:	  22 May 2014

		DOCKET NUMBER:  AR20130010825 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests on behalf of the applicant that his discharge be upgraded from general under honorable conditions to honorable based upon the application of current policies for Soldiers diagnosed with Post-Traumatic Stress Disorder (PTSD).

2.  Counsel states that the applicant is a combat veteran who suffers from PTSD.
He served in the Army 6 years, including a full year in Iraq where he witnessed and experienced life-threatening events.  He served honorably and heroically in Iraq and was awarded a commendation medal for his combat service.  When the applicant returned to the United States in 2004, still in the service, nightmares, panic attacks, and anxiety overwhelmed him and he turned to drugs to cope with his PTSD symptoms.  He also made poor choices when, on multiple occasions, he went absent without leave (AWOL).

3.  Counsel further states that while not excusing the applicant's behavior, his undiagnosed PTSD symptoms extenuate and mitigate his misconduct.  The applicant's treating psychiatrist has recently concluded that his PTSD symptoms made a significant contribution to his discharge-related conduct:  specifically his abuse of cocaine and alcohol, repeated AWOLs, and assaultive behavior.

4.  Counsel contends that the Army discharged the applicant in 2006, 3 years before Congress enacted new laws to require the military to perform medical exams to determine whether the effects of PTSD extenuate or mitigate the grounds for a service member's discharge.  The new legal requirement, passed in 2009, constitutes a substantial enhancement of the applicant's rights.  Without reviewing this medical evaluation, the Army may not characterize a member's discharge as less than honorable.  The exam's purpose is to determine if a service member's PTSD diagnosis mitigates the basis of their discharge.  Today, a service member in the applicant's circumstances may receive an honorable discharge due to the availability of the medical examination and the law's requirement that the service take into account a PTSD diagnosis.  Had the medical exam requirement existed when the applicant was discharged, his service characterization would have been different.  Under the basic standards of fairness as well as the applicable standards for a discharge review, it would be inequitable and unjust not to examine the applicant's request for a discharge upgrade taking into proper account the effects of combat-related PTSD on his discharge-related conduct.

5.  Counsel contends that the applicant's pre-discharge mental health evaluation was flawed and failed to consider whether his PTSD symptoms extenuated or mitigated his conduct.  

	a.  First, the evaluation failed to rule out PTSD as a mitigating factor.  A person experiencing PTSD can still understand his or her surroundings and understand processes and procedures.  PTSD may cause a person to relive trauma, but unless a person is experiencing a flashback, he or she still comprehends reality.  The evaluation's conclusion that the applicant understood his discharge proceedings and was mentally responsible, therefore, fails to rule out a PTSD diagnosis as a mitigating factor.  To the contrary, military doctors concluded the applicant experienced anxiety disorder following his combat deployment.  The Army Discharge Review Board (ADRB) failed to consider this evidence.

	b.  Second, the doctor failed to screen the applicant for PTSD.  He was deployed to Iraq, a combat environment.  Based on this fact alone, the doctor should have considered PTSD a possibility.  But there is nothing in the applicant's records that shows the doctor screened him for PTSD.

	c.  Third, the doctor diagnosed the applicant with an adjustment disorder, which requires a less severe stressor event than PTSD.  An adjustment disorder may arise from losing a job, or marital problems, or living in a crime-ridden neighborhood.  PTSD, in contrast, is caused by an event that involves "actual or threatened death or serious injury" or witnessing a traumatic event that involves death or serious bodily injury.  Here, not only is it more likely that the applicant's combat deployment would expose him to life-threatening events, he in fact witnessed enemy fire killing his friend.  Thus, the doctor's adjustment disorder diagnosis is flawed.

6.  Counsel adds that the applicant seeks relief from this Board because the ADRB, while acknowledging his PTSD, treated it as irrelevant because his PTSD symptoms did not prevent him from "knowing right from wrong."  Here, the ADRB applied the wrong standard to discharge-related conduct.  PTSD must be taken into account as a mitigating factor, and not as an excuse for misconduct.  Asking whether a mental disorder prevented a person from knowing right from wrong means asking whether the mental disorder excused his or her misconduct.  If a person is unable to know right from wrong, he or she generally lacks responsibility for his or her behavior.  This is not what the applicant was asking of the ADRB and is now asking of this Board.  Rather, the applicant requests that this Board consider his PTSD as a mitigating factor, not as an excuse for his misconduct.  Properly considered, evidence shows the applicant's PTSD symptoms mitigate his discharge-related misconduct.

7.  Counsel provides:

* a 10-page brief
* Exhibit A - a 5-page declaration from the applicant
* Exhibit B - a DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Exhibit C and D - extracts from the applicant's enlistment contract
* Exhibit E - ADRB decision documents
* Exhibit F - a DA Form 638 (Recommendation for Award) and DA Form 4980-14 (Army Commendation Medal (ARCOM) Certificate)
* Exhibit G - a 4th Battalion, 5th Air Defense Artillery, 1st Cavalry Division Commander's Certificate of Achievement
* Exhibit H - the applicant's Stressor Letter addressed to the Department of Veterans Affairs (VA)
* Exhibit I - an article extracted from the Military Times internet website entitled "Town rocked by death of Soldier in Iraq"
* Exhibit J and M - a DD Form 2807-1 (Report of Medical History)
* Exhibit K - MEDCOM Form 699-R (Report of Mental Status Evaluation)
* Exhibit L - a DD Form 2808 (Report of Medical Examination)
* Exhibit N - a 4-page Attending Outpatient Note rendered by Dr. TS
* Exhibit O - a 14-page Psychiatry Consult rendered by Dr. JM
* Exhibit P - a letter rendered by a Licensed Clinical Social Worker, LM
* Exhibit Q - a Psychiatry Attending note rendered by Dr. MB
* Exhibit R - a VA Rating Decision
* Exhibit S - Social Work Note rendered by SM and Psychiatry Consult rendered by Dr. GT
* Exhibit T - a letter addressed to the Army Board for Correction of Military Records (ABCMR)) rendered by Dr. MB

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 5 October 2000 and was awarded military occupational specialty 14R (Bradley Linebacker Crewmember). He served in a variety of positions of increasing responsibility at both stateside and overseas duty locations.  The highest rank/grade he attained while serving was specialist. The applicant's complete military medical record is not available for review by the Board.

2.  On 5 January 2004, while stationed at Fort Hood, TX, the applicant departed his unit in an absent without leave (AWOL) status and remained absent until he reported back to his unit on 16 January 2004.

3.  The applicant deployed to Iraq as a member of his unit in support of Operation Iraqi Freedom from 8 March 2004 through 8 March 2005 and was awarded an Army Commendation Medal (ARCOM) and a 4th Battalion, 5th Air Defense Artillery, 1st Cavalry Division Commander's Certificate of Achievement in recognition of his service during the deployment.

4.  The applicant's record contains four DA Forms 4856 (Developmental Counseling Form), dated 28 April 2005 which show he was counseled for various infractions in violation of Article 86 of the Uniform Code of Military Justice (UCMJ).  In each counseling statement he was advised that this type of behavior was unacceptable and that continued behavior of this kind could result in initiation of separation action to eliminate him from the Army.  He was further advised that if he was separated for misconduct, he could receive an honorable, general, or under other than honorable conditions discharge.  A general discharge or discharge under other than honorable conditions could deprive him of many or all military and veterans' benefits.  Any further acts of misconduct or unsatisfactory performance could cause him to be separated without further counseling.  He was counseled for:

	a.  violation of Article 86, UCMJ by being AWOL from a group therapy appointment in spite of being reminded about the appointment earlier in the day.  The applicant's excuse for missing the appointment was that he was asleep in his room.  Because of this and his action over the past week, he was informed that his squad leader was recommending UCMJ action.
	b.  violation of Article 90, UCMJ, by willfully disobeying an order from and being disrespectful toward a commissioned officer.  The applicant was advised that as long as he was in the Army, when given a direct or lawful order it was expected that he would follow that order to the very best of his ability.  He had been failing to accomplish this simple aspect of Army life since their return from Iraq.  He was advised that this type of behavior showed a complete lack of respect for his entire chain of command and would not be tolerated.  As a result, he was being recommended for UCMJ action.

	c.  violation of Article 91, UCMJ, by being disrespectful toward a noncommissioned officer (NCO), failing to remain at the position of "parade rest," walking out of a room, disobeying an order to return to the room, and departing the unit area in his privately owned vehicle.  He was reminded that he and his squad leader had discussed accountability previously and having just returned from Iraq the squad leader had hoped that they would not have to revisit this issue as often as they had.  He was advised that this type of behavior showed a complete lack of respect for his entire chain of command and would not be tolerated.  As a result, he was being recommended for UCMJ action.

	d.  violation of Article 92 by failing to obey an order or regulation when he opted not to report for duty as directed by his squad leader because he "just didn't feel like working."  By doing so, he willfully disobeyed his squad leader's order which was deemed unacceptable.  As a result, he was being recommended for UCMJ action.

5.  The applicant's record contains a U.S. Army Criminal Investigation Command (CID) Report of Investigation (ROI), dated 20 May 2005, which shows the Fort Hood Criminal CID was notified by the applicant's commander that he had tested positive for a controlled substance during a probable cause urinalysis.  The investigation established probable cause to believe the applicant committed the offense of wrongful use of a controlled substance when he was found in possession of marijuana on 9 March 2005 and subsequently tested positive for marijuana during a probable cause urinalysis conducted on 10 March 2005.  On 16 May 2005, a CID agent advised the applicant of his rights, which he waived, and provided a sworn statement wherein he confessed he used marijuana between 8 and 9 March 2005, at an unknown hotel in Killeen, TX.  The applicant declined consent to a search of his vehicle and barracks room.

6. The applicant's record contains a DA Form 2627, dated 30 June 2005, which shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ for violating Article 112a, by wrongfully using marijuana, a controlled substance, between on or about 10 February and 10 March 2005.

7.  On 11 July 2005, the applicant was counseled for lying to a senior NCO about having an appointment with mental health for anger management when, in fact, he did not.  As a result, he was advised that he would be escorted by an NCO to future appointments.

8.  On 13 July 2005, the applicant departed his unit in an AWOL status and remained absent until he was "obtained by CID" and released to the custody of his unit on 21 July 2005.

9.  On 23 August 2005, the applicant was counseled for returning to duty after an excessive amount of time following an unspecified appointment.  When he arrived late, he was unable to furnish a valid reason for his tardiness.  Earlier that same day, the applicant had taken it upon himself to depart his place of duty early for lunch.  At that time he was reminded that he was still in a probationary period.  The commander had arranged for his administrative separation from the Army to be suspended for 30 days providing that he was able to stay out of trouble.  Up to this point, he had been doing well; however, this counseling would be forwarded up the chain of command and further actions would be decided by the commander.  The counseling NCO advised the applicant that whether or not the decision was made to separate the applicant from the Army, he would continue to assist the applicant in getting his finances and other medical appointments taken care of.

10.  On 9 September 2005, the applicant was counseled regarding his then current debt situation.  He was advised that his recent involvement with drugs, being AWOL, irresponsible use of loans, and thoughtless spending had gotten him into a serious situation.  Because of his UCMJ actions, his pay had been reduced considerably and to compensate, he began using payday type loans from places that had brought his bank account down to a negative balance.  It was noted that his privately owned vehicle had broken down recently and the loan he had obtained for repairs was used instead to cover drug habit expenses while he was AWOL.  Presently, the command was working to get him a loan through the Army Emergency Relief (AER) Fund to cover the cost of repairs to his vehicle.  The command would attempt to defer payments on the AER loan for 90 days in order to provide him a little time to get back on his feet.  The applicant was advised to take the following actions in the future:

	a.  Never use any illegal substance again; they hurt more than just your body.

	b.  Don't go AWOL again.  He would stop getting paid and when he did return he would get paid less or be separated from the Army and get paid nothing.

	c.  Stop using payday type loan lenders; the interest rates are too high and they are bad investments all the way around.

	d.  Stop making excuses; when faced with a task exhaust all available resources and when that isn't enough ask for help.  He could not expect his NCOs to accomplish everything for him; some things that he could do on his own must get done.

	e.  Don't wait for a problem to get completely out of control before he started taking action to correct the situation.  In conclusion, he was advised that this type of situation is unacceptable behavior for a Soldier in the U.S. Army.  A Soldier must have a good financial plan to maintain deployability and lessen the burden on Army resources.  Good financial planning would not only assist him in the Army, but also through tough deployments and civilian life.

11.  On 13 September 2005, the applicant was counseled for violating Article 92, UCMJ, by failing to obey an order or regulation.  On 8 September, deficiencies were found with the appearance of his uniform during an inspection.  As a result, he was told to be ready for a reinspection on 9 September.  Once again, deficiencies were noted with his uniform and he was told to be ready for a reinspection on 10 September.  On 10 September, the same deficiencies were noted on his inspection and he was instructed to correct the deficiencies and be prepared for reinspection the following morning.  When the NCO arrived the following morning to inspect the applicant's uniform, he was still asleep in bed and not prepared for inspection.  This lack of discipline and disregard for an order given to him by an NCO was not the appropriate behavior for a Soldier and would not be tolerated.

12.  On 26 September 2005, the applicant departed his unit in an AWOL status.  On 26 October 2005, he was dropped from his unit's rolls and remained absent until 23 February 2006.

13.  His record contains (and counsel also provides) a MEDCOM Form 699-R, dated 14 March 2006, which shows he underwent a mental status evaluation that was conducted by a clinical psychologist in the Psychology Department, Darnall Army Community Hospital, Fort Hood, TX following the applicant's misconduct and pursuant to Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14.

	a.  The psychologist noted his behavior was normal, he was fully alert and oriented, and his mood was anxious.  His thinking process was clear, his thought content normal, and his memory was good.

	b.  The psychologist opined that the applicant had the mental capacity to understand and participate in the proceedings; he was mentally responsible; and met the retention requirements of Chapter 3, Army Regulation 40-501 (Standards of Medical Fitness) (he did not have an unfitting diagnosis that would require medical evaluation).

	c.  The applicant was diagnosed with:  Axis I: Adjustment Disorder with Disturbance of Emotions and Conduct; Polysubstance Abuse, in remission per the applicant.

	d.  The evaluation revealed no evidence of suicidal or homicidal behavior, altered thought process or any other condition that would explain the behavior that resulted in the initiation of this administrative action.  The applicant was psychologically cleared for any administrative action deemed appropriate by command.  The command may wish to consider a bar to reenlistment.

14.  On 22 March 2006, the applicant's commander advised him of his rights before he rendered a sworn statement on a DA Form 2823.  In this statement, the applicant provided a synopsis of his time in the Army beginning with the date of his enlistment through the date of the statement.  In part, he provided the following information pertaining to his deployment and post-deployment:

	"I deployed to Iraq in support of OIF (Operation Iraqi Freedom) II where I was a Bradley driver and I worked in the Brigade Detainee Facility, and I was a Bradley dismount on Route Irish, Baghdad Iraq.  Redeployed to Fort Hood in March 2005.  5 days after return from deployment I was stopped at the East Airfield gate for a random security search.  While the inspectors were searching my car, they found a marijuana 'roach'...I started doing cocaine and crack cocaine for several months...I was given another command directed urinalysis, which I showed positive for marijuana and cocaine...I went AWOL for 2 weeks.  I stayed in Kileen where I continued to use drugs.  In November, I was moved to a new unit...the commander sat down with me and my father and counseled me and made a deal with me that if I stopped doing drugs and I didn't get into any more trouble for one month and finished my punishment from the 1st Article 15 that he would let me stay in the military.  Later in the month, I felt that the new 1SG (First Sergeant) didn't like me because of my history, and I fell into depression and started using drugs again.  I went AWOL around mid November.
I attempted to return in late December, but I was told by 1SG that I was dropped from roll.  I was given my belongings and escorted off post."

   At no point in his statement did he mention experiencing any type of traumatic event during his period of deployment or service.

15.  A DD Form 2808, dated 3 April 2006, shows he underwent a physical medical examination in preparation for separation.  Item 40 (Psychiatric) of this form shows he had a history of depression/anxiety for which he was on medication.  Item 77 (Summary of Defects and Diagnoses) indicates he was a healthy male with depression/anxiety issues and he sustained a dental injury in Iraq which needed follow-up care.  He had previously abused alcohol and drugs; but he was not currently using alcohol or drugs due to incarceration.  Item 78 (Recommendations - Further Specialist Examinations Indicated) the examining physician recommended that the applicant receive primary care management and dental treatment from the VA.  He also encouraged the applicant to continue cessation of alcohol and drugs.

16.  On 5 April 2006, the applicant was notified to appear before a summary court-martial (SCM) on 11 April 2006.  His DD Form 458 (Charge Sheet) shows charges were imposed against the applicant as follows:

	a.  Charge I:  Violation of the UCMJ, Article 85.  The Specification:  In that the applicant did on or about 26 September 2005, without proper authority, absent himself from his unit and did remain so absent until on or about 23 February 2006.

	b.  Charge II:  Violation of the UCMJ, Article 112a.

		(1)  Specification I:  In that the applicant did at or near Fort Hood, TX, between on or about 21 February and 21 March 2006, wrongfully use marijuana, a Schedule I controlled substance.

		(2)  Specification II:  In that the applicant did at or near Fort Hood, TX, between 21 February and 21 March 2006, wrongfully use cocaine, a Schedule I controlled substance.

17.  On 11 April 2006, the applicant appeared before an SCM where he pled guilty to and was found guilty of the aforementioned charges and specifications.  As a result, he was sentenced to be confined for 30 days and to be reduced to PV1/E-1.  The sentence was adjudged on 11 April 2006.

18.  On 2 May 2006, the applicant's commander informed him that he was initiating action to discharge him from the Army under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for commission of a serious offense and cited the applicant's SCM conviction for being AWOL, marijuana use, cocaine use, and his previous Field Grade Article 15 for the wrongful use of marijuana and being AWOL.  The commander indicated that he was recommending the applicant's service be characterized as general, under honorable conditions.  The applicant's election of rights are not available for review by the Board.

19.  On 3 May 2006, the applicant completed a DD Form 2807-1 wherein he indicated that he was currently taking Prozac and was in good health. 

   a.  In item 15b of this form he indicated that he suffered from constant migraine headaches.

   b.  In item 17 of this form he indicated that he suffered from anxiety attacks, had trouble sleeping, had nightmares about Iraq, received counseling for mental status, suffered from depression and worried about mistakes he had made during the past year.  His mental condition had been altered due to his deployment to Iraq, he attempted suicide over separation from his wife and children, and he used drugs to forget about Iraq and his problems.  

   c.  Item 30 (Examiner's Summary and Elaboration of all Pertinent Data) whose examining physician assistant noted that the applicant's medical records were not available.  The applicant reported to the physician assistant that he suffered from left hip pain as a result of an improvised explosive device (IED) incident in Iraq, no previous evaluation.  The applicant also reported suffering from anxiety, depression, and insomnia.  He had also undergone counseling, medications, and inpatient care for drug use.

20.  On 10 May 2006, the applicant's battalion commander recommended approval of the applicant's discharge with a general discharge.

21.  On 15 May 2006, the separation approval authority approved the applicant's discharge under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c for commission of a serious offense with a general discharge.

22.  The applicant's DD Form 214 shows that he was discharged accordingly on 31 May 2006.  The narrative reason for his discharge was "Misconduct (Drug Abuse).  His rank/grade at the time of discharge was PV1/E-1.  

23.  The applicant submitted an application to the ADRB wherein he requested, through counsel, an upgrade of his discharge to fully honorable and removal of "drug abuse" as the narrative reason for his discharge.  Counsel attested that the applicant is a decorated combat veteran of the war on terror.  Counsel contended that the traumatic experiences the applicant faced in Iraq led to a diagnosis of severe PTSD.  As a result of his psychological problems and a lack of support 

from friends, family, and the military, he turned to drugs to cope with the horrors he'd witnessed.  A year after returning from Iraq, the applicant was separated from the Army with a general discharge due to his drug use.  Counsel further attests that the applicant was a model Soldier whose only misconduct was due to mental health problems which the Army failed to recognize or properly diagnose. Accordingly, his less than honorable discharge is inequitable.

	a.  After carefully examining the applicant's complete record of service along with any evidence presented in his behalf by counsel pertaining to his diagnosis of PTSD, the ADRB analyst opined the applicant's accomplishments did not overcome the reason for discharge and his characterizations of service.  The analyst further opined that by abusing illegal drugs, the applicant knowingly risked a military career and diminished the quality of service below that meriting a fully honorable discharge.  The analyst noted the PTSD diagnosis from the VA.  However, in review of the applicant's entire service record, the analyst found that this medical condition did not overcome the reason for discharge and characterization of service.  The record shows that, on 4 March 2006, the applicant underwent a mental evaluation which indicates that he was mentally responsible, with thought content as clear, and was able to recognize right from wrong.  The ADRB analyst concluded that just because the applicant suffers from PTSD does not mean he does not know the difference between right and wrong or that he did not have control over his behavior.  There are many Soldiers with the same condition who complete their service successfully.

	b.  On 1 February 2012, the President of the ADRB informed the applicant that after a careful review of his application, military records, and all other available evidence, the ADRB determined that he was properly and equitably discharged.  Accordingly, his request for a change of the characterization and narrative reason for his discharge was denied.

24.  Counsel provides:

	a.  Exhibit A - a 5-page declaration rendered by the applicant on 8 October 2011 wherein:

		(1)  Enlistment and Training:  The applicant stated why he joined the Army and that he had aspirations of making it a career culminating with him becoming a command sergeant major.  He described his achievements during initial entry training and subsequent training at the National Training Center.  The applicant attested that he was always the fastest runner in his company and always did well on his Army Physical Fitness Test.  He was awarded the Army Good Conduct Medal.  He attested that he was awarded the ARCOM for not letting his team down; he stayed with his brothers and had their backs the whole time.  He described his duties, responsibilities and training in Iraq.  

		(2)  Trauma in Iraq:  The applicant stated "When we were on Patrol in Iraq we often had to clear houses.  I remember finding people with their faces half gone and a cat eating the dead person's face and a dog eating the dead person's leg.  I'd see random dogs and animals eating dead bodies.  I saw this all the time.
The smell of death was constant all the time.  I had to return fire on insurgents all the time.  I saw a lot of death.  I was so used to it from roadside bombs and all the chaos.  But when it came to me and mine, it was a whole different story.  I saw my friend get hit by a roadside bomb.  My friend got blown from the chest up.  After we did a perimeter check, I saw his body afterwards.  I remember breaking down at this.  Once, when I was guarding the Green Zone and was on my lunch break, a car bomb went off and all the windows in the vicinity blew inwards.  When we went outside, we basically had to make sure everything was safe.  I saw a lot of people leaning forward in their seats with half their bodies blown away.  When we were on patrol, we'd get called to clean the wreckage of roadside bombs that went off.  We saw entrails, fragments, pieces of people, fragments of cars and bodies.  I was medevaced out of Iraq to Germany when an IED hit our Bradley and I went into a coma.

		(3)  Return from Iraq to Fort Hood:  Shortly after leaving Korea and arriving at Fort Hood the applicant's unit deployed to Iraq.  He was with guys who had been training together for years, but he was the new guy and didn't really know any of them.  The applicant explained his disappointment in the fact that none of his family was there to welcome him when he returned home.  He went home after awakening from a coma and found his house empty.  He had to find his wife and son.  When he talked to the wives of fellow Soldiers, he found out his wife had been cheating on him, even when he was stationed in Korea before he went to Iraq.  He could not handle the nightmares from his time in Iraq and the fact that his wife had left him so, he began drinking heavily to dull the pain and then he was introduced to cocaine by a man who was also having a hard time.  He was devastated and stopped going to work.  The applicant attests that he requested help for his drug problem, but didn't get any.  He reached out to everyone in his immediate chain of command for help with addiction, and told them his wife left him and he was depressed and needed some counseling.  He told them that he could not sleep at night, and that he had nightmares about iraq on top of the addiction.  They told him "Suck it up, you knew what you were getting into when you joined the military."  He went AWOL.  He was into cocaine and smoking crack and felt ashamed and embarrassed for fellow Soldiers to see him like that.  He felt that he no longer belonged, so he took off.  He also wanted to kill himself because he did not want to live anymore.

		(4)  Life and Goals After Discharge:  The applicant questions how he let his life get so out of control after coming home from war and being injured.  Now, he wants to go to school and use his DD Form 214 to work somewhere without being ashamed of it.  Right now he doesn't use the Army as a reference; he has to lie instead of telling the truth about his discharge status.  He also wants to have more contact with his son, so he is trying to pull himself back up, get his PTSD and addiction under control, get a career and move on.  He states that he has chronic PTSD and a lot of problems, but believes that if he stays on his medications, continues treatment, and doesn't use drugs or drink, he could hold a career job.  He is in a constant struggle with addiction and PTSD, but is making progress through treatment and counseling.  Above all, he wants to be a much larger part of his son's life and be able to show him his discharge upgrade one day and have it say that he served his country honorably. 

	b.  Exhibit I - an article extracted from the Military Times internet website entitled "Town rocked by death of Soldier in Iraq."  This article provides an account of an incident wherein a member of the applicant's unit was killed by a sniper at a roadblock near Baghdad, Iraq on 22 November 2004.  The article also mentions that the Soldier had been involved in an incident the previous month during which a car bomb exploded near his tank which resulted in him sustaining a bruised eardrum and sore back.  The article does not mention the applicant.

	c.  Exhibit N - a 4-page Attending Outpatient Note rendered by Dr. TS at a VA Medical Center (MC) on 27 July 2006.  The doctor noted the applicant was there to establish care.  The applicant reported that he was honorably discharged from the Army on 31 May 2006.  He was in the infantry as a Bradley crew member.  They were responsible for clearing buildings, patrol, and roadside bomb clearance.  He suffered from many personal problems including a divorce as well as severe depression with suicidal ideation.  He reported that he was no longer on medication for depression and had not felt depressed in 4 months.  He would also like a dental referral.  He is missing teeth from a roadside bomb explosion while stationed in Iraq.  The applicant's listed active problems included PTSD - symptomatic with hypervigilance, insomnia, and nightmares.

	d.  Exhibit S - Social Work Note rendered by SM and Psychiatry Consult rendered by Dr. GT at a VAMC on 14 November 2007.  This form shows the applicant was referred for a psychiatric consult after a positive PTSD screen.  The applicant reported the aforementioned history of events that led to his current condition to the psychiatrist.  He also reported that his first traumatic brain injury (TBI) occurred in August 2003 where he fell and hit his head, presumably after being drunk.  In January 2005, he was hit by an IED in Iraq and was in a coma for 2 months.  In July 2007, he got into a fight in a pool hall and was hit in the jaw causing him to lose his teeth.  Currently, he doesn't socialize with women because he is missing front teeth.  While in Iraq, he had a "suicide plan" to spend all his money on drugs, sleep with a bunch of women, and then "drive my car" off the cliff.  He also reported being in a psychiatric hospital three times since returning from Iraq.  After examining the applicant, the psychiatrist provided the following assessment of him:  he was a 29 year-old male veteran of Operation Enduring Freedom/Operation Iraqi Freedom with a history of two TBIs, IED exposure and polysubstance abuse who was referred there following a postive PTSD screen.  He reported multiple psychiatric symptoms coupled with depression, PTSD, and panic/anxiety symptoms.  Initial trigger of mood symptoms seems to be ex-wife cheating on him.  This was exacerbated by polysubstance abuse, which caused him to be discharged from military as well as being involved in multiple fights.  He reported feeling more angry; possibly disinhibited after TBI.  Recent memory impairment possibly due to TBI.

	e.  Exhibit O - a 14-page Psychiatry Consult rendered by Dr. JM at a VAMC on 29 October 2008.  His chief complaint at the time was "I am not happy with my life."  During the interview, the applicant reported his numerous recent stressors and feelings of depression.  In part, he also endorsed "nightly nightmares from a specific incident in Iraq where there was a murder/suicide in a house and as he opened the door, he found children dead."  This document listed the medications the applicant was prescribed and the treatment that he had undergone for his diagnoses of PTSD, major depressive disorder, alcohol dependence, polysubstance abuse, and cognitive disorder due to TBIs.

	f.  Exhibit H - the applicant's undated Stressor Letter addressed to the VA wherein he provided a detailed account of a patrol mission that he participated in while deployed to Iraq.  One of their vehicles broke down and they had to set up a security perimeter while they waited for mechanical support.  Realizing that they were in a very dangerous situation he was frightened, his anxiety level was going through the roof, and his heart was racing so fast that it caused him to vomit in the back of his vehicle.  He had a feeling that something was going to happen soon.  He dismounted the vehicle ready for whatever could happen while outside working on the vehicle.  He was so scared and nervous that he urinated on himself.  His body and hands were shaking so horribly that he could barely work and watch his back at the same time.  He could not stop thinking about the fact that more people died in this zone than anywhere else.  They started receiving small arms fire and the next thing he knew, his best friend in the Army got shot in the face.  The applicant had brains, blood and pieces of skull fragments on him.  He was crying and frozen in place until an NCO snapped him out of his trance and made him move his friend into the vehicle.  Then they loaded another wounded Soldier into the vehicle.  They were receiving incoming mortars, but they held down their position until a tow vehicle arrived and they followed it to safety.  He came home to Fort Hood from Iraq in March 2004 with a lot of emotional problems and was later diagnosed with PTSD.  This was one of the many traumatic events in Iraq.

	g.  Exhibit P - a letter rendered by a Licensed Clinical Social Worker, with the VA Greater Los Angeles Healthcare System on 15 April 2009.  This letter was written at the request of the applicant to verify that he had returned to treatment at the PTSD Outpatient Services Team following an absence while he was undergoing inpatient treatment.  "Although he had made some progress on insight and was maintaining his sobriety, he was still struggling with symptoms of PTSD, including elevated anxiety, sleep disruption, vivid memories of his war zone experiences in Iraq (as documented in his stressor).  Most particularly, he was plagued by memories of an episode in 2004, while on patrol as part of the 1st Cavalry when their vehicle was disabled and while waiting for repairs they took heavy fire, costing the applicant's best friend to be shot and bleed out all over him.  Another squad member was shot and both casualties had to be moved into a vehicle by the applicant for transport to the rear for shipment and treatment, respectively."  The applicant described the following history of TBIs:

		(1)  December 2004:  While on leave from the Army he was hit over the head with a gun during a robbery attempt.  He reported loss of consciousness of an undetermined duration and did not seek treatment.

		(2)  February 2005:  While riding in a Bradley assault vehicle in Iraq it was struck by a roadside bomb.  He blacked out and woke up in Germany.  He received 80 stitches in his left forearm, lost some upper teeth and had various shrapnel injuries.  He was transferred to the hospital at Fort Hood, where he was hospitalized for two months.  He is unsure about the duration of loss of consciousness, presence of posttraumatic amnesia or if he began experiencing cognitive difficulties right after that injury.

		(3)  March 2006:  He totaled his car while driving 80 miles per hour.  He says he walked away without injuries and did not experience loss of consciousness.  Psychiatry notes indicate that he drove off the road intentionally in a suicide attempt, but did not report it as such at the time.

		(4)  22 July 2007:  He was hit on the back of the head and in the jaw with pool cues while out with friends.  He reports losing consciousness and remembers waking up at home.  He refused to be taken to a hospital and subsequently developed headache, diplopia, nausea, and hematemesis.

	h.  Exhibit Q - a Psychiatry Attending note rendered by Dr. MB at a VAMC on 3 February 2011.  The applicant reported to the psychiatrist that he saw significant combat in Iraq and recounted the incident during which his friend was killed by a sniper.  He also told the psychiatrist about being in a coma for two months following an IED explosion and another TBI when he was beaten badly with a cue stick in a bar fight and ended up with subdural hematomas.  Notably, he also told the psychiatrist that he discovered his wife living with another man when he returned from Iraq and beat him badly with a tire iron, leading to a general discharge and the loss of his GI Bill benefits (he avoided a long sentence in Leavenworth because it was judged a crime of passion).

	i.  Exhibit R - a VA Rating Decision, dated 19 October 2012, which shows the VA assigned the applicant a 100 percent disability evaluation for PTSD with major depression and panic disorder with agoraphobia (Competent).  The VA further determined that this condition was service-connected and Gulf War incurred.

	j.  Exhibit T - a letter addressed to the ABCMR rendered by Dr. MB, a psychiatrist with the PTSD Outpatient Service Team at West Los Angeles VAMC, on 1 March 2013 in support of the applicant's request for a discharge upgrade.  The psychiatrist treated the applicant from 3 February 2011 to 4 April 2012.  He provided a brief synopsis of the applicant's service and current diagnoses.  He opined that the applicant's PTSD diagnosis stems from his exposure to traumatic events in combat.  The applicant experiences the following PTSD symptoms:  Intrusive thoughts and nightmares, psychological and physiological responses to reminders, including generally elevated anxiety, drastic attempts to avoid memories, social withdrawal, anhedonia, emotional numbing, sleep disturbance, heightened irritability and increase startle.  The excessive use of alcohol and other drugs as a means of avoidance of intrusive memories and to promote sleep is a common comorbidity with PTSD.  Heightened irritability and poor impulse control are also typical sequelae of TBI.  He also opined that the symptoms of PTSD and TBI made a very significant contribution to the applicant's discharge-related conduct:  specifically his abuse of cocaine and alcohol, his repeated AWOL, and his assaultive behaviors.

25.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 addresses separation for various types of misconduct, including drug abuse, and provides that individuals identified as drug abusers may be separated prior to their normal date of expiration term of service.  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 provides that 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.

DISCUSSION AND CONCLUSIONS:

1.  Counsel's contention that the applicant's discharge should be upgraded from general under honorable conditions to honorable based upon the application of current policies for Soldiers diagnosed with PTSD was carefully considered.

2.  Counsel suggests that although the applicant was discharged on 31 May 2006, the 2009 passage of new laws requiring the military to perform medical exams to determine whether the effects of PTSD extenuate or mitigate the grounds for a service-member's discharge constitutes a substantial enhancement of the applicant's rights.  Although these laws resulted in policy changes for Soldiers separating after their passage, there is no provision for retroactive application of the policy.  Therefore, counsel's contention that current policies should be applied in the applicant's case is moot.

3.  The available evidence shows the applicant's documented misconduct began with a period of AWOL in January 2004, which was 2 months prior to his deployment to Iraq.

4.  The available evidence indicates the applicant lost two teeth as the result of being a passenger in a vehicle that was struck by an IED.  The applicant's record is void of any evidence and he has not provided any evidence of experiencing a traumatic event other than this IED explosion while deployed to Iraq.  Although counsel and the applicant describe a graphic scene where the applicant was "covered" by blood, brain matter, and skull fragments from his friend, this is a recent revelation.  It does not appear in the applicant's record or in his initial Psychiatric Consult at a VAMC on 29 October 2008 wherein he attributed nightly nightmares from a specific incident in Iraq where there was a murder/suicide in a house and as he opened the door, he found children dead. 

5.  Although evidence indicates the applicant was hospitalized for a period of time in the mental health ward, aside from his own testimony, there is no evidence showing that he was in a coma for 2 months.

6.  The evidence clearly shows the applicant was actively participating in counseling and receiving treatment from the mental health professionals at Fort Hood from the time of redeployment from Iraq in Spring 2005 until just prior to his discharge on 31 May 2006.  Counsel's presumption that the applicant was never screened for PTSD in over a year's worth of mental health appointments and counseling sessions following a deployment to Iraq is pure conjecture and totally unfounded.

7.  In spite of his numerous incidents of misconduct, AWOL, nonjudicial punishment, and SCM, the applicant's chain of command continued to be supportive of him, repeatedly offered him opportunities to get sober, and assisted him with his financial affairs.  His last commander even went so far as to conduct a counseling session with his father present during which the commander offered to terminate the applicant's discharge process if he could stay out of trouble.

8.  Despite this generous offer, the applicant took it upon himself to go AWOL and be non-compliant with treatment for his mental condition.

9.  The question before the Board is whether or not his PTSD symptoms extenuate or mitigate the grounds of his discharge related conduct:  specifically his abuse of cocaine and alcohol, his repeated AWOLs, and his assaultive behaviors.

10.  The available evidence clearly shows the applicant underwent both a mental and physical evaluation of his health prior to being cleared for discharge proceedings.  His record is void of any indication and he has not provided any evidence showing that he was diagnosed with PTSD during his period of active duty service.

11.  His use and abuse of illegal drugs is unacceptable under any circumstances.
Even if we accept the notion that it is acceptable to self-medicate with alcohol and drugs, the applicant has not shown that he was drinking and using drugs due to self-medication.  In fact, he continued to drink after being prescribed appropriate medications for his reported symptoms.  The applicant clearly had a problem with alcohol and drugs and they were directly involved in a portion of his misconduct.

12.  Prior to making a decision, the separation authority reviewed the applicant's available records.  The separation authority had competent medical authority advising him and it was determined that the applicant's condition was not a direct or substantial cause of his misconduct.  The applicant and/or counsel have not shown that the separation authority was wrong in making his conclusion.

13.  Given the available evidence, it cannot be concluded that PTSD was a direct or substantial cause of the applicant's misconduct and when the separation authority made his determination he had substantially more medical information available to him than has been provided to the ABCMR.

14.  In view of the foregoing, there is no basis for granting any portion of the applicant's requested relief.

BOARD VOTE:

________  ________  ________  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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   _x______   ___
               CHAIRPERSON
      
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.
ABCMR Record of Proceedings (cont)                                         AR20130010825



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ABCMR Record of Proceedings (cont)                                         AR20130010825



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