BOARD DATE:	  31 March 2015

		DOCKET NUMBER:  AR20140014412 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) as follows:

* item 7a (Place of Entry into Active Duty) should read Albany, NY not Albany MA
* item 12f (Foreign Service) should reflect 6 months in Germany and 10 months in Iraq
* item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) should show the Combat Action Badge
* item 18 (Remarks) should show his period of service in Iraq
* item 28 (Narrative Reason for Separation) should not contain the entry "misconduct, (serious offense)"

2.  The applicant states, in effect:

	a.  Based upon his request the Army Discharge Review Board (ADRB) amended his DD Form 214 as follows:

* item 26 (Separation Code) to read "JKQ"
* item 27 (Reentry Code) to read "3"
* item 28 to read "misconduct (serious offense)"

	b.  The trouble he had was, in fact, not serious in nature and he maintains what occurred was the result of post-traumatic stress disorder (PTSD) and 
anxiety problems, for which he has a diagnosis from the Department of Veterans Affairs (VA).  With this contention he implies he should qualify for an upgrade of his under other than honorable conditions discharge based upon 3 September 2014 guidance from the Secretary of Defense, which essentially directs the Army Board for Correction of Military Records (ABCMR) to carefully consider 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.

	c.  He was awarded the Combat Action Badge and it should be reflected on his DD Form 214.

	d.  He actually entered active duty in Albany, NY.

3.  The applicant provides:

* DD Form 214
* letter from the Army Review Boards Agency, dated 31 August 2009
* memorandum, dated 19 April 2008, subject:  Separation Under Army Regulation 635-200, Chapter 14, paragraph 14-12c (Commission of a Serious Offense) pertaining to [the applicant], from the Commanding General, Multi-National Corps-Iraq
* memorandum, dated 20 April 2008, subject:  Authorization to Depart the Southwest Asia Theater of Operations, from the Commander 20th Engineer Brigade (Combat) (Airborne)

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 20 June 2006 and, following initial training, was awarded military occupational specialty 21E (Heavy Construction Equipment Operator).  The highest rank/grade held was private/E-2.
3.  His records contain a DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) showing the applicant entered active service from Albany, NY.

4.  His Enlisted Record Brief (ERB) shows he was awarded or authorized the National Defense Service Medal, the Global War on Terrorism Service Medal, and the Army Service Ribbon.  His record is void of any orders or documentation showing the award of the Combat Action Badge.

5.  His records also show he received field grade nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions:

	a.  On 24 August 2007, for:

* one specification of violating a lawful general regulation by wrongfully brandishing a knife with a blade longer than three inches in a manner likely to make reasonable persons fear for their safety, on 23 February 2007, at or near Grafenwoehr, Germany
* one specification of willfully disobeying the lawful command of his superior commissioned officer not to consume alcohol, wear civilian clothing, and not to leave post, on 24 February 2007, at or near Grafenwoehr, Germany
* two specifications of being found drunk on duty, on 2 April 2007 and 3 May 2007, at or near Grafenwoehr, Germany
* one specification of wrongfully using schedule II controlled substances (Oxycodone and Oxymorphone), on 24 May 2007, at or near Grafenwoehr, Germany
* one specification of being incapacitated for the proper performance of duty as a result of wrongful overindulgence of intoxicating liquor, on 13 August 2007, at or near Grafenwoehr, Germany

	b.  on 25 February 2008, for:

* two specifications of breaking restriction, on 17 September 2007 and 21 September 2007, at or near Grafenwoehr, Germany
* one specification of discharging an M-16 rifle in a clearing barrel through negligence, on 23 November 2007, in Iraq
* one specification of violating a lawful general regulation by hazing a fellow Soldier by taping him to his bunk, on 6 January 2008, in Iraq

6.  On 25 March 2008, the applicant's commander initiated separation action under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 14 (Separation for Misconduct), paragraph 14-12c (Commission of a Serious Offense).  He stated the basis for recommending separation action was the applicant's NJP.

7.  On 26 March 2008, the applicant consulted with counsel regarding the separation action.  The applicant stated he: 

* had been advised the basis of the separation action, its effect, the rights available to him, and the effect of waiving his rights
* conditionally waived having his case considered by an administrative separation board, and to appear before the board if his service was characterized no less favorably than under honorable conditions
* requested representation by counsel but waived submitting statements in his own behalf
* understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws

8.  DA Form 3822-R (Report of Mental Status Evaluation), signed 3 April 2008, completed by a clinical psychologist, essentially states:

* he was evaluated because he was being considered for separation action based upon misconduct
* his behavior was normal; he was fully alert, fully oriented, unremarkable in mood and affect, clear in his thinking process, and normal in his thought content
* he had the mental capacity to understand and participate in proceedings, and was mentally responsible
* Axis I had no diagnosis but showed a history of substance abuse; Axis IV showed situational stressors
* he met medical retention standards in accordance with Army Regulation 
40-501 (Standards of Medical Fitness)
* he was psychologically cleared for administrative action and did not demonstrate any obvious chronic mental health pathology which would preclude him from accepting responsibility for his actions

9.  On 19 April 2008, the separation authority disapproved the applicant's request for conditional waiver of an administrative board (submitted by the applicant contingent on receiving nothing lower than a general under honorable conditions discharge).  On 25 April 2008, the applicant unconditionally waived his right to an administrative separation board.  

10.  On 26 April 2008, the separation authority approved the commander's recommendation to separate the applicant.  He directed the applicant receive an under other than honorable conditions discharge.  On 6 May 2008, the applicant was discharged accordingly.

11.  His DD Form 214, as corrected by the ADRB, shows:

* he was discharged under other than honorable conditions in accordance with the provisions of chapter 14, paragraph 14-12c, Army Regulation 635-200
* he completed 1 year, 10 months, and 17 days of net active creditable service
* in item 7a he entered active duty from Albany, MA
* item 12f is blank
* in item 13 no entry for the Combat Action Badge
* item 18 does not contain any entry regarding service in Iraq
* item 28 reads "Misconduct (Serious Offense)"

12.  On 31 August 2009, the ADRB notified the applicant his DD Form 214 was being reissued to reflect a change in separation authority, separation code, reentry code, and narrative reason.

13.  The Defense Finance and Accounting Service (DFAS) confirmed the applicant served in Germany from 28 December 2006 to 6 May 2008, a period of 1 year, 4 months, and 9 days.  Their records also show he was deployed to a combat zone (shown as Kuwait) from 22 October 2007 to 2 March 2008, a period of 4 months and 10 days.

14.  Army Regulation 635-5 (Personnel Separations - Separation Documents) prescribes policy and procedures for the completion of the DD Form 214.  It states source documents include the ERB, and any other document authorized for filing in the official military personnel file.  

	a.  For determining the Soldier's place of entry onto active duty, the source document is the enlistment contract.

	b.  The ERB is the primary source document for determining foreign service.

	c.  For Soldiers deployed with their units during their continuous period of active service, enter "Service in (name of country deployed) from (inclusive dates, for example YYYYMMDD- YYYYMMDD)."

15.  Army Regulation 600-8-22 (Military Awards) states the requirements for award of the Combat Action Badge are branch and MOS immaterial. 

	a.  Assignment to a combat arms unit or a unit organized to conduct close or offensive combat operations or performing offensive combat operations is not required to qualify for the Combat Action Badge.  However, it is not intended to award the Combat Action Badge to all Soldiers who serve in a combat zone or imminent danger area.  

	b.  The Soldier must be performing assigned duties in an area where hostile fire pay or imminent danger pay is authorized.  The Soldier must be personally present and actively engaging or being engaged by the enemy and performing satisfactorily in accordance with the prescribed rules of engagement.  

	c.  Award of the Combat Action Badge is authorized from 18 September 2001 to a date to be determined.  Only one Combat Action Badge may be awarded during a qualifying period.  

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

	a.  Chapter 14 prescribes procedures for separating personnel for misconduct, including the commission of a serious offense.  The regulation specifies that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  An honorable discharge or a general discharge may be awarded by the separation authority if warranted by the member's overall record of service; however, a discharge under other than honorable conditions is normally considered appropriate for members separated under these provisions.

   b.  Paragraph 3-7a provides an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance.
   
   c.  Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

17.  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 it 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-III 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."

18.  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.

19.  The DSM fifth revision (DSM-5) 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 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.

		(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. 	

		(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.

		(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).

		(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

		(6)  Sleep disturbance

	f.  Criterion F, duration:  Persistence of symptoms (in Criteria B, C, D, and E) for more than one 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

20.  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 Soldier's 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 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.

21.  In view of the foregoing, on 3 September 2014 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 applicant's service.

22.  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?

23.  Although the 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 presumed that they were properly discharged based upon the evidence that was available at the time.  Conditions documented in the record 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.  Corrections Boards 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.  Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causeal relationship of symptoms to the misconduct.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends four corrections should be made to his DD Form 214:

* item 7a should be changed to show he entered active duty from Albany, NY; his DD Form 4 confirms this and his DD Form 214 should be changed accordingly
* item 12f should be corrected to show service in Germany and Iraq; DFAS verifies his foreign service and it should be reflected as 1 year, 4 months, and 9 days (0001/04/09)
* item 13 should show the award of the Combat Action Badge; his records are void of any documentation showing he received this award
* item 18 should show his service in Iraq; DFAS confirms he received pay for being in a combat zone and separation documents clearly show he was in Iraq, enabling the additional entry "Service in Iraq from 20071022-20080302"

2.  The applicant also maintains the offenses upon which his separation action was based were not serious and he states the entry on his DD Form 214 showing "misconduct (serious offense)" is incorrect.  He implies he should qualify for an upgrade of his discharge because his misconduct resulted from PTSD and anxiety.  

	a.  Both the medical community and DOD now have a more thorough understanding of PTSD and its potential to serve as a causative factor in a Soldier's misconduct when the condition is not diagnosed and treated in a timely fashion.  Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible recharacterization of their overall service.

	b.  No evidence has been provided showing the applicant received a diagnosis of PTSD from a behavioral health specialist qualified to make such a diagnosis.

	c.  Of the ten incidents of misconduct cited in his separation action, only two occurred during his deployment to Iraq.  The first involved the hazing of a fellow Soldier and the second was the negligent discharging of his weapon, neither of which appear consistent with manifestations typically associated with either PTSD or anxiety.  The remaining eight incidents all took place in Germany prior to his deployment and therefore neither PTSD nor anxiety resulting from exposure to combat could have been their basis.

	d.  A mental status evaluation, done as part of his separation action, noted the applicant:

* was behaving normally, was fully alert and oriented, mood and affect were unremarkable, thinking process was clear, and thought content was normal
* had a "history of substance abuse" and was dealing with "situational stressors"
* "did not demonstrate any obvious chronic mental health pathology that precludes him from accepting responsibility for his actions"

3.  The evidence of record confirms his separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation are presumed to have been met and the rights of the applicant were fully protected throughout the separation process.  Additionally, insufficient evidence was presented to support the applicant's contention his misconduct resulted from PTSD and anxiety.  

4.  Based upon the foregoing, there is insufficient evidence to grant him the requested relief of revising the narrative reason for separation or upgrading his under other than honorable conditions discharge.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X_____  __X______  __X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 to show the following:

* item 7a, "Albany, NY"
* item 12f, "0001/04/09"
* item 18, "Service in Iraq 20071022-20080302"

2.  The Board further determined that the evidence was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to amending the DD Form 214 by:

* adding the award of the Combat Action Badge
* revising the narrative reason for separation to read anything other than "misconduct (serious offense)"
* upgrading his under other than honorable discharge based upon his misconduct having resulted from PTSD and anxiety




      _______ _   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)                                         AR20140014412





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ABCMR Record of Proceedings (cont)                                         AR20140014412



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