IN THE CASE OF:	   

		BOARD DATE:	  17 March 2015

		DOCKET NUMBER:  AR20140010165 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests:

* a medical retirement
* an upgrade of his general discharge to honorable
* remission of his debt for an unearned reenlistment bonus 

2.  The applicant states, in effect:

	a.  He should have been medically discharged in 2005 due to asthma, but instead he was sent to Iraq.  He was later diagnosed with post-traumatic stress disorder (PTSD) and chronic obstructive pulmonary disease (COPD).

	b.  He received a general discharge due to drug abuse.  He became addicted to the prescription drugs he received at the Army hospital.  When he was unable to get the medical attention (therapy) he needed, he began self-medicating with illegal drugs.  This occurred after he served 10 years, receiving two honorable discharges and numerous awards.

	c.  He was punished for the drug abuse.  He was reduced from pay grade E-5 to E-2 and received 45 days of extra duty and restriction.  After considerable thought, he believes under the circumstances of his PTSD these punishments should have been more than enough.  He then was subjected to going through the medical board process for 6 months only to be denied even though he was found medically unfit for duty.

	d.  His discharge was actually due to asthma, PTSD, and COPD.  This prevented him from fulfilling his commitment to serve until January 2014.  Therefore, he should not be charged the $1,104.76.  He requests a waiver and reimbursement of all monies paid against his debt.

3.  The applicant provides:

* Army medical records
* Army awards

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 8 August 2001 and trained as a wheeled vehicle mechanic.  He served overseas in:

* Kuwait from 5 May 2002 to 25 October 2002
* Iraq from 15 March 2003 to 28 April 2003

2.  On 4 December 2003, he was honorably discharged for immediate reenlistment.  He reenlisted on 5 December 2003 for 4 years.  He served in Iraq from 4 January 2006 to 2 January 2007.  He was promoted to sergeant on 1 February 2006.  On 26 October 2008, he was honorably discharged for immediate reenlistment.  On 27 October 2008, he reenlisted for 6 years and a reenlistment bonus.

3.  In January 2011, nonjudicial punishment (NJP) was imposed against the applicant for being absent without leave (AWOL) from 17 November 2010 to 23 December 2010.

4.  In January 2012, NJP was imposed against him for using cocaine.  His sentence included a reduction to E-2, forfeiture of pay, and 45 days of extra duty.

5.  He provided a health record, dated 30 January 2012, which shows PTSD was listed as a chronic problem during his initial medical evaluation board (MEB) interview.

6.  A DA Form 3349 (Physical Profile), dated 8 February 2012, shows he was issued a permanent physical profile rating of 3 for asthma and COPD.

7.  On 14 May 2012, an MEB diagnosed him with asthma and COPD.  The MEB determined the following conditions met retention standards:


* hypertension
* onychomycosis of bilateral great toes
* history of right hand fracture to healed
* history right leg fracture that healed
* acid reflux
* bilateral hearing loss
* adjustment disorder with anxiety and depressed mood

8.  The MEB recommended referral of his case to a physical evaluation board (PEB).

9.  On 18 June 2012, he was notified of his pending separation under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, for misconduct (abuse of illegal drugs).  The unit commander cited the applicant's use of cocaine and AWOL period.

10.  On 18 June 2012, he consulted with counsel and requested a conditional waiver (waived hearing before an administrative separation board contingent upon a general discharge).

11.  On 13 July 2012, the general court-martial convening authority (GCMCA), the Commanding General, Headquarters, Joint Readiness Training Center and Fort Polk, after reviewing both the administrative separation packet and the MEB proceedings, determined the applicant's medical condition was not a direct or a substantial contributing cause of the conduct that led to the recommendation for administrative elimination.  He also determined that there are no other circumstances in this case that would warrant disability processing instead of further processing for administrative separation.  He approved the conditional waiver and recommendation for discharge for misconduct (abuse of illegal drugs) under the provisions of Army Regulation 635-200, paragraph 14-12c, and directed his discharge under honorable conditions.

12.  On 18 July 2012, he was discharged accordingly.  He completed 10 years, 11 months, and 11 days of creditable active service.

13.  He provided documentation which shows he received certificates of gratitude, participation, and authenticity and he was awarded the Meritorious Service Medal, Army Commendation Medal (3rd Award), and Army Achievement Medal.

14.  There is no indication the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel from active duty.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense.  The issuance of a discharge under other than honorable conditions is normally considered appropriate.

	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.

16.  Army Regulation 635-40, paragraph 4-3, states an enlisted Soldier may not be referred for or continue physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.  If the case comes within the limitations above, the commander exercising general court-martial jurisdiction over the Soldier may abate the administrative separation.  This authority may not be delegated.  A copy of the decision, signed by the GCMCA, must be forwarded with the disability case file to the PEB.  A case file may be referred in this way if the GCMCA finds:

	a.  the disability is the cause, or a substantial contributing cause, of the misconduct that might result in a discharge under other than honorable conditions or

	b.  other circumstances warrant disability processing instead of alternate administrative separation.

17.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his/her office, rank, grade or rating because of disability incurred while entitled to basic pay.

18.  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."

19.  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.

20.  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.

	a.  Criterion A – Stressor:  The person was exposed to:  death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence, as follows (one required):

		(1)  direct exposure;

		(2)  witnessing, in person;

		(3)  indirectly, by learning that a close relative or close friend was exposed to trauma.  If the event involved actual or threatened death, it must have been violent or accidental; or

		(4)  repeated or extreme indirect exposure to aversive details of the event(s), usually in the course of professional duties (e.g., first responders collecting body parts, professionals repeatedly exposed to details of child abuse).  This does not include indirect non-professional exposure through electronic media, television, movies, or pictures.

	b.  Criterion B – Intrusion Symptoms:  The traumatic event is persistently re-experienced in the following way(s) (one required):

		(1)  recurrent, involuntary, and intrusive memories;

		(2)  traumatic nightmares;

		(3)  dissociative reactions (e.g., flashbacks) which may occur on a continuum from brief episodes to complete loss of consciousness;

		(4)  intense or prolonged distress after exposure to traumatic reminders; or

		(5)  marked physiologic reactivity after exposure to trauma-related stimuli.

	c.  Criterion C – Avoidance:  Persistent effortful avoidance of distressing trauma-related stimuli after the event (one required):

		(1)  trauma-related thoughts or feelings or

		(2)  trauma-related external reminders (e.g., people, places, conversations, activities, objects, or situations).

	d.  Criterion D – Negative Alterations in Cognitions and Mood:  Negative alterations in cognitions and mood that began or worsened after the traumatic event (two required):

		(1)  inability to recall key features of the traumatic event (usually dissociative amnesia; not due to head injury, alcohol, or drugs);

		(2)  persistent (and often distorted) negative beliefs and expectations about oneself or the world (e.g., "I am bad," "The world is completely dangerous");

		(3)  persistent distorted blame of self or others for causing the traumatic event or for resulting consequences;

		(4)  persistent negative trauma-related emotions (e.g., fear, horror, anger, guilt, or shame);

		(5)  markedly diminished interest in (pre-traumatic) significant activities, feeling alienated from others (e.g., detachment or estrangement); and

		(6)  constricted affect, persistent inability to experience positive emotions.

	e.  Criterion E – Alterations in Arousal and Reactivity:  Trauma-related alterations in arousal and reactivity that began or worsened after the traumatic event (two required):

		(1)  irritable or aggressive behavior;

		(2)  self-destructive or reckless behavior;

		(3)  hypervigilance;

		(4)  exaggerated startle response;

		(5)  problems in concentration; and

		(6)  sleep disturbance.

	f.  Criterion F – Duration:  Persistence of symptoms (in Criteria B, C, D, and E) for more than 1 month.

	g.  Criterion G – Functional Significance:  Significant symptom-related distress or functional impairment (e.g., social, occupational).

	h.  Criterion H – Exclusion:  Disturbance is not due to medication, substance use, or other illness.

21.  As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis, and treatment of PTSD, the Department of Defense (DOD) acknowledges that some Soldiers who were administratively discharged UOTHC may have had an undiagnosed condition of PTSD at the time of their discharge.  It is also acknowledged that in some cases this undiagnosed condition of PTSD may have been a mitigating factor in the Soldiers' misconduct which served as a catalyst for their discharge.  Research has also shown that misconduct stemming from PTSD is typically based upon a spur of the moment decision resulting from a temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues for an extended period of time.

22.  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.

23.  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?

24.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he received a general discharge due to drug abuse, but his discharge was actually due to asthma, PTSD, and COPD.

2.  The evidence of record shows:

* in January 2011, he accepted NJP for being AWOL from 17 November 2010 to 23 December 2010
* in January 2012, he accepted NJP for using cocaine
* PTSD was listed as a chronic problem during his initial MEB interview in January 2012
* an MEB diagnosed him with asthma and COPD in May 2012
* in June 2012, he was notified of his pending separation for misconduct (abuse of illegal drugs) due to his cocaine use and AWOL period

3.  Prior to his discharge, the GCMCA reviewed both the administrative separation packet and the MEB proceedings and determined the applicant's medical condition was not a direct or a substantial contributing cause of the conduct that led to the recommendation for administrative elimination.  He also determined that there are no other circumstances in this case that would warrant disability processing instead of further processing for administrative separation.  He directed his discharge under honorable conditions for drug abuse.

4.  In accordance with Army Regulation 635-200, his pending administrative separation for misconduct discontinued further physical disability processing.  Therefore, the applicant is not entitled to a medical retirement.

5.  The health record provided by the applicant that shows PTSD was listed as a chronic problem is acknowledged.  However, there is insufficient evidence to show PTSD symptoms were attributed to his military service or were a causative factor in the misconduct resulting in his discharge.

6.  His administrative separation for misconduct was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

7.  Since a discharge under other than honorable conditions is normally appropriate for the authority and reason for his discharge, the fact that he was given a general discharge under honorable conditions was generous.

8.  His record of service during his last enlistment included two NJPs.  As a result, his record of service was not so meritorious as to warrant an honorable discharge.

9.  Since he did not complete his last 6-year enlistment for which he received a reenlistment bonus, there is no basis for granting the applicant's request to remit his debt for an unearned reenlistment bonus.

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 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)                                         AR20140010165



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ABCMR Record of Proceedings (cont)                                         AR20140010165



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