BOARD DATE:	  22 January 2015

		DOCKET NUMBER:  AR20140018364 


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, through a court remand, that his discharge under other than honorable conditions (UOTHC) be upgraded to an honorable discharge.

2.  The remand action, dated 1 October 2014, remanded this case to the Army Board for Correction of Military Records (ABCMR) to address the applicant's motion for remand dated 16 September 2014.  The motion for remand stated:

"Plaintiff recently became aware of initiatives of the Secretary of Defense issued on 3 September 2014, with instructions to the Boards of Correction of Military and Naval Records.  Those instructions compel the Board to consider the impact of Post-Traumatic Stress Disorder (PTSD) on the serviceman's behavior which rendered him eligible for a discharge under less than honorable conditions.  Because this directive would affect the rights of the Plaintiff herein, Plaintiff moves the Court to remand this case to the Board of Corrections of Military Records with instructions to apply the standards set forth in the attached directive."

3.  The applicant provides a Statement of Facts rendered by his counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the Board find that the applicant's PTSD, Traumatic Brain Injury (TBI), and sleep disorder combined to mitigate his behavior and upgrade his discharge to honorable.
2.  Counsel provides a brief synopsis of the applicant's 14 years of service in both the Texas Army National Guard and a series of reenlistments in the Regular Army.  Counsel notes the applicant was an infantryman who was promoted to the rank/pay grade of staff sergeant (SSG)/E-6 on 1 December 2003.  In November 2005, the applicant admitted to the wrongful use of a government credit card and was reduced to the rank/pay grade of sergeant (SGT)/E-5.  He was promoted to SSG/E-6 on 11 March 2007.  During his military service, the applicant served 2 years in Kosovo, two tours in Iraq, and one tour in Afghanistan.  

3.  Counsel further states that in 2007, while deployed to Iraq, the applicant was on a raid with his unit and received small arms fire from a nearby village.  His unit was sent forward into the village.  When the applicant's platoon approached a house thought to have contained enemy forces, the house exploded.   The remotely-triggered explosive device was detonated as the platoon surrounded the house, resulting in the death of one Soldier and injuring six others, including the applicant.  The applicant was then medically evacuated by helicopter to the Balad Joint Services Hospital where he was treated for a concussion and bruises to his extremities.  He later returned to his unit where he completed his tour of duty in Iraq.

4.  Counsel states that shortly after the applicant's hospitalization, he was found in the presence of an Iraqi soldier that he identified as being one of those who set off the explosion that resulted in the death of a Soldier in his platoon.  He slapped the soldier in the head with his pistol.  As a result, he was given nonjudicial punishment (NJP) with a reduction to SGT/E-5 and a forfeiture of $1,500 pay.  He completed his tour in Iraq and was assigned to the Warrior Transition Battalion (WTB) at Fort Bragg, NC in 2008, where he remained until his discharge in 2011.

5.  Counsel notes that during the applicant's 14 years of service he received the following awards and decorations:

* Afghanistan Campaign Medal
* Two Army Commendation Medals
* Two Army Achievement Medals
* Four Good Conduct Medals
* Army Reserve Components Achievement Medal
* National Defense Service Medal
* Global War on Terrorism Service Medal
* Kosovo Campaign Medal
* Two Noncommissioned Officer (NCO) Professional Development Ribbons
* Army Service Ribbon
* North Atlantic Treaty Organization Medal
* Combat Infantryman Badge
* Overseas Service Ribbon

6.  Counsel attests that in 2008, when the applicant returned to Fort Bragg following his deployment, he could do nothing right.  He was disrespectful to nearly everyone senior to him and violated countless orders.  During his assignment to the WTB from 2008 to 2011, he was prescribed nearly every controlled substance the Womack Army Medical Center (WAMC) had to offer.  A summary of his medical care from 2008 to 2011 shows a listing of 90 "chronic" illnesses.  In support of this statement, counsel provides chronologic extracts from the applicant's medical records from June 2008 through May 2010 which show he was diagnosed with and treated for numerous conditions to include TBI, PTSD, and sleep disorder.  These extracts also show the applicant was prescribed several medications as a form of treatment for his conditions.

7.  Counsel contends that the determination of Dr. MR was not the first diagnosis of medical disability and disqualification for continued military service.  The first such finding was by Dr. C in February 2009, who reported the disability to the hospital commander.  Dr. C even referred to the applicant's disqualification under the provisions of Army Regulation 40-501 (Standards of Medical Fitness).  What happened in response to his findings is unclear.  What is clear is that the Army did not conduct a medical evaluation board (MEB) as Army Regulation 40-501, paragraph 3-3 compels.  Army Regulation 40-501, paragraph 3-4 instructs the physician that:  "physicians are responsible for referring Soldiers with conditions listed below to an MEB.  It is critical that MEBs are complete and reflect all of the Soldier's medical problems and physical limitations."  (Emphasis added).

8.  Counsel states that Army Regulation 40-501 is not equivocal and notes that the Army has offered the declaration of Ms. TB who explained the MEB Internal Tracking Tool (MEBITT) process at Fort Bragg.  However, she confirms that no MEB was conducted for the applicant.

9.  In March 2009, the applicant filed a false claim against the United States by claiming hotel expenses in a travel voucher, when he actually stayed at a friend's home during the travel.  He admitted this was wrong and received NJP under the provisions of Article 15, Uniform Code of Military Justice (UCMJ).

10.  Counsel contends that under the Rules of Court-Martial, Rule 916 (Defenses), (1) (Not defenses generally) (2) (Voluntary intoxication), voluntary intoxication is a legitimate defense against an element of premeditation.  Here the applicant was taking vast amounts of pharmaceuticals including sleep medications, pain killers, and medications intended to alter his mental status and reduce the effects of the PTSD.  If this Board is concerned about the premeditated crime relating to the travel voucher, this Board should consider the drugs the applicant was prescribed mitigate against that offense.  A court has previously held that the voluntary intoxication need not be so severe as to deprive the accused of his mental faculties or substantially deprive him of his mental capacity.  Rather, it need only be of such a degree to create reasonable doubt that he premeditated the required interest. 

11.  Counsel contends that because there were four findings by four healthcare providers that the applicant was not qualified for continued military service, he should have been processed out medically.  The Army is bound by its regulation and failure to comply with Army Regulation 40-501 renders the applicant's discharge a nullity.

12.  Counsel states that during 2008, 2009, and 2010 the applicant was evaluated by various medical personnel at Fort Bragg.  Significantly, he was seen by Dr. C on 12 October 2008 and Dr. MR on 16 March 2010.  Both physicians found the applicant unfit for continued military service.  However, no MEB was conducted to determine the applicant's fitness to serve after either physician wrote his opinion.

13.  Counsel contends that because no medical board was conducted for the applicant, no evaluation was made by the Army or by the ABCMR as to whether the diagnosis of PTSD was a mitigating factor in the misconduct which caused the UOTHC discharge.  The Secretary of Defense has instructed this Board:

"Where service records of any documents from the period of service substantiate the existence of one or more symptoms of what is now recognized as PTSD, or a PTSD-related condition during the time of service, liberal consideration must be given to finding that PTSD existed at the time of service."

14.  The supplemental guidance of the Secretary of Defense further instructs:

"In case 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 Under Other Than Honorable Conditions characterization of service” (emphasis added).

15.  Counsel argues that for the reasons set forth above the applicant contends that the Army violated its own regulations handling his discharge in two respects:

	a.  First, the Army violated Army Regulation 40-501 when it failed to provide an MEB to the applicant.

	b.  Second, the Army violated Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) when the commander failed to determine that the PTSD of the Soldier was a substantial cause of his misbehavior.

16.  Counsel attests there are three facts that are abundantly clear from the applicant's military and medical records:

	a.  He had TBI, PTSD, and sleep disorder.

	b.  He was heavily medicated during his time at Fort Bragg.

	c.  The Army never considered his PTSD as a mitigating factor in the misconduct.

17.  The applicant simply asserts the time is right for this Board to consider whether his PTSD resulted in his misconduct.  The Government will undoubtedly argue that his misconduct was intentional; therefore, premeditated.  However, in this case where the Army was flooding the Soldier with controlled substances to counteract his sleep disorder, PTSD, and TBI the applicant should get the benefit of the doubt and be given a discharge upgrade to honorable.

18.  Counsel concludes that it is uncontroverted that the applicant was a good, upstanding citizen and Soldier before he went into combat.  He came back with TBI, PTSD, and sleep disorder.  He was flooded with drugs to fight his ailments and later he became a bad Soldier who received an Article 15 for the voucher fraud misstep.  To follow the directives of the Secretary of Defense, this Board must consider whether his PTSD, TBI, sleep disorders, and all the drugs he was prescribed to combat his medical problems were factors working on his judgment.

19.  Counsel provides:

	a.  A memorandum in support of his claim which includes a synopsis of events derived from the applicant's medical records.  (Exhibit A)

	b.  A court order.  (Exhibit B)

	c.  Secretary of Defense Memorandum for Secretaries of the Military Departments, dated 3 September 2014.  (Exhibit C)

	d.  A compact disc bearing the transcript of the applicant's court case versus the United States rendered by the U.S. Court of Federal Claims.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120004257 on 18 October 2012 and administrative record.

2.  The applicant and counsel did not provide any new evidence.  However, the U.S. District Court for the District of Columbia, Washington, DC, directed the Board to consider the impact of PTSD on the applicant's behavior which rendered him eligible for a UOTHC discharge.

3.  The applicant served in the Texas Army National Guard from 15 August 1989 until he was honorably discharged on 14 August 1995 in military occupational specialty (MOS) 13B (Cannoneer).

4.  On 1 December 1997, he enlisted in the Regular Army.  On 3 October 2002, he reenlisted in the rank/pay grade of SGT/E-5 for retraining in MOS 11B (Infantryman).  He completed his training and was subsequently promoted to the rank of SSG/E-6 on 1 December 2003.

5.  A review of documents in the applicant's record indicates that he deployed numerous times:  twice to Kosovo, once to Afghanistan, and twice to Iraq.  However, his Enlisted Record Brief (ERB) only shows that he deployed to Kosovo from 29 November 2000 through 28 May 2001; to Afghanistan from 6 December 2002 through 28 May 2003; and to Iraq from 23 March through 30 April 2007.

6.  On 30 November 2005, NJP was imposed against the applicant for the misuse of his government credit card to make unauthorized purchases.  His punishment consisted of a reduction to the rank/pay grade SGT/E-5, a forfeiture of $1,164.00 pay for 2 months (suspended for 6 months), restriction, and extra duty.  He did not appeal his punishment.

7.  On 17 August 2006, the applicant reenlisted and was again subsequently promoted to the rank/pay grade of SSG/E-6, on 1 October 2006.

8.  On 25 June 2007, NJP was imposed against the applicant for assaulting an Iraqi National by grabbing him by the throat, placing a pistol at his head, and striking him in the forehead with the pistol while deployed to Iraq.  His punishment consisted of a reduction to the pay grade of E-5 (suspended for
6 months), a forfeiture of $1,545.00, and an oral admonishment.  He did not appeal his punishment.  Sworn statements rendered to document the incident show the applicant, another NCO, and two interpreters had visited a house to question the Iraqi National.  When he stated that he had been involved in a previous shootout with the applicant's platoon and had fired upon them, the applicant snapped and committed the aforementioned offense in a matter of seconds.  The other NCO took charge of the situation, calmed the applicant down, and reported the incident to their chain of command.  The NCO opined that this fit of rage and loss of control was "caused by the loss of his Team Leader, plus several improvised explosive devices (IEDs) and a shootout all in this area."

9.  On 17 June 2008, the applicant was assigned to the WTB at Fort Bragg, NC.  Soldiers are assigned to the WTB to heal by following their prescribed care plan.
The applicant was provided orientation counseling on 17 June 2008.  He was counseled that he must keep scheduled appointments or inform his case manager if an emergency arose and he could not keep appointments.  He agreed and did not provide comments.  He was informed that his primary mission was treatment and/or MEB processing.  The reverse side of the form is not contained in the administrative record.    

10.  The administrative record contains numerous DA Forms 4856 (Developmental Counseling Forms) documenting counseling sessions on the dates shown for the reasons indicated:  

* 1 October 2008, failure to report to squad leader
* 3 October 2008, to inform the applicant of a conversation between the applicant's wife and first sergeant
* 20 October 2008, failure to report to formation
* 2 December 2008, disobeying a direct order
* 30 December 2008, failure to report 
* 7 January 2009, failure to report to formation
* 9 January 2009, failure to make appointments 

11.  On 6 February 2009, the applicant underwent a command-directed mental health evaluation.  Dr. GK, Clinical Psychologist, diagnosed the applicant with PTSD but found no evidence that his condition would warrant disposition through medical channels per Army Regulation 40-501 and no restrictions were necessary.  The applicant continued to receive mental health care from Dr. GK during his assignment to the WTB up until his separation.  This assessment is in the applicant’s electronic medical records.

12.  The applicant's record contains the following DA Forms 4856 documenting counseling sessions on the dates shown for the reasons indicated:

* 17 August 2009, various issues relating to Warrior Transition Unit (WTU)
* 17 August 2009, missing formation
* 20 August 2009, failure to make appointments
* 28 August 2009, various issues relating to WTU
* 24 September 2009, various issues relating to WTU
* 6 October 2009, missing appointments
* 28 October 2009, various issues relating to WTU
* 28 October 2009, missed appointments

13.  On 29 October 2009, the applicant appeared before a MOS Medical Retention Board (MMRB) based on a permanent physical profile issued on 
15 October 2008.  The applicant requested reclassification into another MOS and his commander supported his request.  However, the MMRB recommended that he be evaluated by an MEB and regardless of the findings and recommendations of the MEB he would be referred to a Physical Evaluation Board (PEB).

14.  The applicant's record contains the following DA Forms 4856 documenting counseling sessions on the dates shown for the reasons indicated:

* 4 November 2009, failure to report to formation
* 24 November 2009, various issues relating to WTU; long-term goal was to rehabilitate and continue to serve country; the applicant agreed and did not provide comments

15.  On 28 December 2009, a memorandum was prepared by the Chief, Personnel Operations Branch, Subject, Record of MMRB Proceedings, [the applicant].  The memorandum directed that the applicant be scheduled for an MEB and PEB.  The memorandum directed the applicant’s commander to initiate immediate coordination with the Medical Treatment Facility (MTF) Physical Evaluation Board Liaison Officer (PEBLO) to obtain additional information and the scheduling of an MEB.

16.  On 7 January 2010, NJP was imposed against the applicant for filing a false claim against the government in the amount of $3,168.85.  His punishment consisted of a reduction to the pay grade of E-5, a forfeiture of $1,000 pay for 2 months (suspended for 6 months), and extra duty for 45 days. 
17.  The applicant's record contains the following DA Forms 4856 documenting counseling sessions on the dates shown for the reasons indicated:

* 8 January 2010, failure to obey order or regulation and false official statement
* 19 January 2010, failure to obey order or regulation
* 19 January 2010, missed formation
* 20 January 2010, failure to obey a lawful order or regulation
* 22 January 2010, to discuss utilization of the Command Group, Human “Recourse,” Training Technician and Supply Technician Areas
* 25 January 2010, to discuss duty performance, personal issues, promotions, and upcoming events
* 27 January 2010, numerous violations of the UCMJ 

18.  The pre-MEB process was begun in January 2010. 

19.  A Suspension of Favorable Personnel Actions (FLAG) was placed in the applicant’s record on 5 February 2010.  The FLAG was an initial adverse action FLAG.  Also on 5 February 2010, the applicant was offered NJP for alleged violations of Article 91 and Article 86 of the UCMJ.  On 11 February 2010, the applicant refused Article 15 proceedings and demanded trial by court-martial. 

20.  The applicant's record contains the following DA Forms 4856 documenting counseling sessions on the dates shown for the reasons indicated:

* 19 February 2010, not performing duties assigned to extra duty personnel
* 3 March 2010, returning from leave after leave ended
* 3 March 2010, to discuss duty performance, personal issues, promotions and upcoming events
* 9 March 2010, failure to report and failure to obey an order or regulation
* 13 March 2010, numerous issues including making a false official statement and failure to obey regulations

21.  On 16 March 2010, the applicant was evaluated in one 60-minute session by Dr. MR (a psychiatrist), who assessed the applicant as having PTSD and depression, which did not meet retention standards.  Dr. MR stated the applicant's "subjective history would meet criteria for a Major Depressive Disorder…and PTSD."  Dr. MR noted the applicant was diagnosed with PTSD in 2008, but did not mention the fact that Dr. GK had previously found the applicant to be Fit for Duty in 2009.  Dr. MR also did not explain why the applicant's diagnoses of PTSD and depression failed to meet retention standards.  

22.  Dr. MR also opined that the applicant was mentally responsible, able to distinguish right from wrong according to cultural norms, and had the capacity to participate in MEB proceedings.  Dr. MR's assessment is filed in the applicant's medical records.  Dr. MR was not the applicant's attending physician, he did not provide the applicant with any psychological testing, and he did not evaluate the applicant again.  In a Declaration, Dr. MR stated that he entered his assessment into applicant's electronic medical records for consideration by the MTF commander.  The MTF commander would have authority to refer the applicant to an MEB.  Dr. MR also stated that he personally did not have authority to refer Soldiers to an MEB.  

23.  On 5 April 2010, Dr. B, a licensed psychologist, noted that she told the applicant his problems appeared to be legal, not mental health.  When asked why he did not return to duty after Dr. GK found him fit for duty, the applicant responded that he wanted out of the Army via a medical board.  This notation is in applicant's electronic medical records.  

24.  The applicant's record contains the following DA Forms 4856 documenting counseling sessions on the dates shown for the reasons indicated:

* 26 March 2010, failure to report to PT formation
* 6 April 2010, insubordinate conduct
* 6 April 2010, failure to obey order or regulation and insubordinate conduct

25.  On 8 April 2010, the applicant underwent a mental health evaluation in accordance with Army Regulation 635-200 due to the pending administrative discharge action.  The examiner was Dr. KG, Clinical Psychology Resident.  Dr. KG stated the applicant did not meet retention standards as defined by Army Regulation 40-501.  This Report of Behavioral Health Evaluation was included in the administrative separation package.  This report indicated Dr. KG's determination that the applicant did not meet retention standards was based on the 16 March 2010 examination by Dr. MR, the applicant's statements, a clinical assessment, and information provided by the applicant’s commander.  A record of this assessment is also located in applicant's electronic medical records.  In a Declaration, Dr. KG stated he assumed all Soldiers being administratively separated from the WTU were being considered for referral or had been referred to an MEB.  Based on the applicant's statements and notes in applicant’s medical records Dr. KG assumed the applicant had been referred and completed his report to reflect this assumption.  He stated he did not have authority to refer a Soldier to an MEB.  


26.  On 9 April 2010, an officer was appointed to conduct an informal investigation under the provisions of Army Regulation 15-6 into the circumstances surrounding the alleged misconduct of the applicant from June 2008 to April 2010.  The investigating officer found the applicant:

	a.  had missed eight medical appointments in violation of WTB Policy Letter #30 and that there were no documented reasons for him missing the appointments;

	b.  was in arrears for his child support, that a protective order was issued against the applicant to prevent further abuse of his ex-wife; and

	c.  was recommended for a field grade NJP twice for misconduct:  Once for temporary duty (TDY) fraud and once for failure to obey a lawful order, leaving his place of duty without authorization, and four specifications of failure to go to his place of duty.

27.  The investigating officer also found the applicant had been reprimanded for:

	a.  ten specifications of failure to obey orders or regulations;

	b.  insubordinate conduct (two counts);

	c.  failure to report (three counts);

	d.  missed medical appointments; and

	e.  numerous failures to meet his obligations while performing extra duties.

28.  The investigating officer recommended that further disciplinary or adverse administrative action be taken against the applicant.  The investigation was completed on 21 April 2010.

29.  The applicant's record contains the following DA Forms 4856 documenting counseling sessions on the dates shown for the reasons indicated:

* 19 April 2010, counseling for disobeying a direct order on 17 and 18 April 2010; the applicant disagreed without providing remarks
* 17 May 2010, counseling regarding applicant’s termination from his work program job because he was performing the duties of the job improperly; cited actions were talking on his cell phone, giving wrong directions, evidencing an "I don’t care attitude"; the applicant agreed and did not provide comments 
30.  On 21 June 2010, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, paragraph 14-12c, for commission of a serious offense.  He cited as the basis for his recommendation that the applicant had been derelict in the performance of his duties on four separate occasions, for making eight false official statements, disobeying lawful orders from NCOs 10 times, disobeying a direct order from a commissioned officer 33 times, failure to go to his appointed place of duty on 20 occasions, assaulting someone with a deadly weapon, failure to pay his just debts eight different times, committing larceny of a value over $500.00, and filing a false and fraudulent claim against the United States.  He advised the applicant of his rights and also advised him that he was recommending that he be issued a UOTHC discharge.  The notification memorandum indicated that a medical evaluation and mental health evaluation were attached.

31.  After consulting with defense counsel, the applicant elected to exercise his right to appear before an administrative separation board and he indicated that he would submit a statement in his own behalf within 7 days; however, there is no evidence that he did so.  The applicant submitted a request for a conditional waiver in which he agreed to waive his rights to appear before an administrative separation board in return for a guarantee of receiving a general discharge.  

32.  On 13 October 2010, the convening authority directed that the applicant appear before the Standing WTB board.  On 9 December 2010, the convening authority (a lieutenant general) disapproved his request for a conditional waiver.

33.  On 10 December 2010, the administrative separation board convened and after hearing testimony and reviewing the facts and circumstances, the board found that the applicant was not desirable for further retention in the service and recommended the issuance of a UOTHC discharge. 

34.  On 22 December 2010, the applicant's defense counsel submitted a memorandum to the convening authority contending the applicant's administrative separation board contained numerous administrative discrepancies.  He further contended the applicant should be processed through medical channels because he did not meet medical fitness standards for retention and noted the applicant's MEB proceedings had been stopped numerous times and had yet to be completed.

35.  On 4 February 2011, a legal review was conducted and the administrative law attorney reviewing the case determined the findings of the administrative separation board were legally sufficient.  She also indicated no evidence was contained in the records to show that any MTF commander or attending medical officer determined the applicant did not meet medical standards for retention or that he had begun the MEB process.  She also indicated that if such evidence was presented to the separation authority, Army Regulation 635-200, paragraph 1-33 dictates that final action should not be taken pending the results of the MEB.

36.  On 4 February 2011, the applicant underwent psychological testing.  The applicant was diagnosed with "Dysthymic Disorder."  Dr. B met with the applicant and referred him back to Dr. GK for further treatment/counseling.  The medical records reflect that Dr. B did not conclude the applicant had a condition that did not meet medical retention standards.  This assessment is in the applicant's electronic medical records.  

37.  On 11 February 2011, after reviewing the entire case file and all matters submitted regarding the applicant, the General Court-Martial Convening Authority (GCMCA) approved the findings and recommendations of the administrative separation board and directed that the applicant be reduced to the lowest enlisted rank/grade and be given a UOTHC discharge.

38.  On 25 February 2011, he was discharged UOTHC under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct – commission of a serious offense.  He had served 13 years, 2 months, and 
25 days of active service.  

39.  The applicant's record contains a Declaration from Ms. TB, Chief, Patient Affairs Branch for WAMC.  She supervises all administrative aspects of the physical disability processing of all disability cases at WAMC.  Ms. TB searched the MEBITT database, which indicated that the applicant did not undergo an MEB at WAMC.  Ms. TB indicated that after receiving the assessments of all pertinent specialists, the MTF commander conducts a medical examination of the Soldier.  If it appears the Soldier is not medically qualified, the MTF commander will refer the Soldier to an MEB.  Ms. TB did not state that an "attending medical officer" had the authority to refer Soldiers to an MEB at the WAMC. 

40.  Counsel provides the following synopsis of extracts derived from the applicant's medical records:

	a.  On 17 June 2008, he was seen at WAMC Psychology Department by BB and KK.  On the computer-maintained records of his medical care, his problems listed included PTSD, concussion syndrome, depression, and adjustment disorder.  This note stated that he had no active medications.  Similarly, Ms. MC saw the applicant on 19 June 2008 and noted similar observations about the applicant including his lack of medications.  She referred him to Psychiatry for PTSD.  Simultaneous with the psychological studies, the applicant was seen by Ms. EG of the WAMC Neurology Clinic who noted his PTSD, concussion, and cognitive disorder to which she ascribed a moderate impairment.  On 8 July 2008, Dr. K renewed the applicant's prescription for Zolmitriptan for his headaches and noted that his problems included PTSD, concussion, and adjustment disorder.

	b.  On 17 July 2008, Ms. EG renewed his prescription for Zolmitriptan while she observed his condition to include adjustment disorder, PTSD, and concussion.  On 21 July 2008, Dr. SA found a "condition influencing health status:  PTSD and concussion."

	c.  On 1 August 2008, the applicant was again seen by Ms. EG at the WAMC Neurology Clinic.  While there, the psychologist noted that he had post-concussion syndrome depression disorder with mixed emotional features and PTSD.  She found his recall skills to be moderately impaired and continued his regimen of Zolmitriptan and added three additional medications to his prescription mix.

	d.  On 4 September 2008, the applicant visited the Psychology Clinic where a psychologist noted that he suffered from post-concussion syndrome, work-related occupational disease, depression adjustment disorder with emotional features, and PTSD.  She renewed his prescription for Zolmitriptan and released him back to his unit.

	e.  On 15 October 2008, Dr. MEC recommended the applicant be medically disqualified for further service under Army Regulation 40-501, chapter 3, having been diagnosed with TBI and PTSD.  This report was sent to the hospital commander at WAMC.

	f.  On 4 February 2009, the applicant was seen in the Psychology Clinic at WAMC and it was noted that he was suffering from post-concussive syndrome, depression, adjustment disorder with mixed emotional features, PTSD, and concussive disorder.  He was continued on his medications and released back to his unit.

	g.  On 6 February 2009, the applicant was seen by Dr. GK, a psychologist, who saw him for his current conditions which were noted as post-concussive syndrome, patient work-related occupational disease, depression, and PTSD.  His prescription for Zolmitriptan was renewed and he was released back to his unit.  Dr. GK found the applicant met retention standards of Army Regulation
40-501.  Dr. GK saw the applicant again on 24 February, 17 March, 8 April, 8 July, and 28 September 2009.  His assessment was consistent that the applicant could be released to his unit without restrictions.
	h.  On 16 March 2010, the applicant was seen by a psychiatrist, Dr. MR, who in a four-page summary explained this was a referral to an MEB for the applicant. He was giving an analysis based on that request and he found the applicant was suffering from sadness, decreased interest, decreased motivation, hyper-insomnia, diminished concentration, anhedonia, and would meet the criteria for PTSD in accordance with the Diagnostic and Statistical Manual of Mental Disorder, fourth edition (DSM-IV) for combat stressor exposure, recurrent recollections, flashbacks to traumatic events, avoidance of reminders of trauma, social avoidance, etc.  Dr. MR diagnosed the applicant with a major depressive disorder characterized as a medically disqualifying condition from military service under (emphasis added) Army Regulation 40-501.  The psychiatrist added his conclusion that "The Soldier's psychological conditions are medically disqualifying in accordance with Army Regulation 40-501.  The impact of his continuing Axis 3 conditions on his fitness for duty will be assessed by his other military providers and subsequent evaluation.  The Soldier retains the capacity to manage his own financial affairs and does not present a threat."  (Emphasis added).

	i.  On 5 April 2010, the applicant appeared at the Psychological Clinic and was seen by HB who observed him to have a phase of life or circumstance problem and an adjustment disorder which she made an effort to treat him for his hostility at the unit.  JB also observed him to have post-concussive syndrome, depression, adjustment disorder with mixed emotional features, traumatic stress disorder, concussion, sleep disorders, sleep apnea, psychiatric diagnosis, restless leg syndrome, and chronic PTSD.

	j.  On 8 April 2010, the applicant was seen by Captain (CPT) Dr. KG, where he was observed for depression, adjustment disorder, concussion, and chronic PTSD.  During his visit, Dr. KG found that the applicant was suffering from major depression, recurrent-moderate and PTSD.  Dr. KG further remarked that "This serviceman has a psychiatric condition that is of sufficient severity to warrant disposition through military medical channels" (emphasis added).  His 16 March 2010 medical evaluation determined that he did not meet retention standards in accordance with Army Regulation 40-501.  The same date, Dr. KG and Mr. B, in response to a request for a Behavioral Health Evaluation issued by the WTB because the applicant was being administratively discharged, found the applicant to be suffering from PTSD, major depression disorder of such "severity to precluded further military service" (emphasis added).  His prescriptions were renewed.

	k.  On 6 May 2010, the applicant returned to the Psychology Clinic at WAMC and was seen by a psychologist, Dr. GK, and was observed to have adjustment disorder with disturbance of emotions and conduct, chronic PTSD, major depression recurrent moderate.  His prescriptions were renewed.

	l.  On 17 June 2010, the applicant was seen again at the Psychology Clinic by Dr. GK, who assessed him with work related occupational disease, PTSD with disturbance and emotional conduct.  His Oxycodone was renewed and he was sent back to his unit without limitations.

41.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  The regulation discusses reasons for separation including expiration of service obligation, convenience of the government, retirement and numerous other reasons.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, and commission of a serious offense, which includes drug offenses.  Although an honorable or general discharge is authorized, a UOTHC discharge is normally considered appropriate. 

42.  Army Regulation 635-200, Section VI (Medical Processing), paragraph 1-33 (Disposition through medical channels) states in paragraph 1-33a that except for separation action under chapter 10 and as is provided in paragraph 1-33b, disposition through medical channels takes precedence over administrative separation processing.

43.  Army Regulation 635-200, paragraph 1-33b, provides that when the MTF commander or attending medical officer determines that a Soldier being processed for administrative separation under chapter 7 or 14 does not meet the medical fitness standards for retention (Army Regulation 40-501, chapter 3), he or she will refer the Soldier to an MEB in accordance with Army Regulation 40-400.  The administrative separation proceedings will continue, but final action by the separation authority will not be taken, pending the results of the MEB.  If the MEB findings indicate that referral to a PEB is warranted for disability processing under Army Regulation 635-40, the MTF commander will furnish copies of the approved MEB proceedings to the Soldier's GCMCA and unit commander.  The GCMCA may direct, in writing, that the Soldier be processed through the Physical Disability Evaluation System (PDES) when action under the UCMJ has not been initiated and one of the following has been determined:   

* Soldier's medical condition is the direct or substantial contributing cause of the conduct that led to the recommendation for administrative separation
* Other circumstances of the individual case warrant disability processing instead of further processing for administrative processing

44.  Army Regulation 635-200 states the authority of the GCMCA to determine whether a case is to be processed through medical disability channels or under administrative provisions will not be delegated.

45.  Army Regulation 635-40 governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  

46.  Army Regulation 635-40, Section I (Eligibility for Disability Evaluation), paragraph 4-1, states a Soldier cannot be referred for, or continue disability processing when the Soldier is charged with an offense under the UCMJ which could result in a punitive discharge.  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 UOTHC.  It further states the GCMCA may abate the administrative separation if the Soldier's medical condition is the cause or substantial contributing cause of the misconduct that might result in a discharge under other than honorable conditions.  The GCMCA must sign the decision and forward it with a copy of the disability case file to the PEB.  The authority cannot be delegated.  Section III (Medical Processing Related to Disability Evaluation) at paragraph 4-9 states the MTF commander having primary medical care responsibility will conduct an examination of a Soldier referred for evaluation.  If it appears the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to an MEB. 

47.  Army Regulation 40-400 (Medical Services – Patient Administration) states in paragraph 7-5 that in cases involving separation under the provisions of Army Regulation 635-200 when it appears that a mental illness, medical condition, or physical defect is the direct cause of unfitness or unsuitability, that individuals will be processed under the PDES.  Referral into the PDES takes precedence over enlisted administrative separations except where the regulatory provisions authorize a discharge characterized as UOTHC.

48.  Army Regulation 40-66 (Medical Record Administration and Healthcare Documentation), dated 17 June 2008, sets policies and procedures for the preparation, disposition, and use of Army electronic paper medical records and other healthcare documentation.  Service treatment records with behavioral health documentation will be recorded in the Department of Defense (DOD) electronic health record system.

49.  Army Regulation 40-66, paragraph 1-4 states MTF commanders are the official custodians of the medical records at their facilities.  Medical records may be used by DOD employees who have an official need for access in the performance of their duties.     

50.  Army Regulation 40-501 states for both mood disorders (depression/depressive disorder is listed as a mood disorder by the DSM-IV and anxiety disorders (the DSM-IV lists PTSD as an anxiety disorder), the causes for referral to an MEB are as follows:

   a.  Persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization; or

   b.  Persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environment; or
   
   c.  Persistence or recurrence of symptoms resulting in interference with effective military performance.
   
51.  PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster.  The 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." 

52.  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.

53.  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 use, or other illness. 

54.  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 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.  

55.  In view of the foregoing, on 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards 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.

56.  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?

57.  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 UOTHC characterization of service.  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 causal relationship of symptoms to the misconduct.

DISCUSSION AND CONCLUSIONS:

1.  On 11 February 2011, after reviewing the entire case file and all matters submitted regarding the applicant, the GCMCA approved the findings and recommendations of the administrative separation board and directed that the applicant be discharged with a service characterization of UOTHC.

2.  The catalysts for this case to be remanded by the Court were initiatives of the Secretary of Defense issued on 3 September 2014, with instructions to the Boards of Correction of Military and Naval Records.  In view of these initiatives, the Court directed this Board to consider the impact of PTSD on the serviceman's behavior which rendered him eligible for a discharge under less than honorable conditions.

3.  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.

4.  A review of the applicant's record and the evidence that he provided shows that he was subjected to the ordeals of deployment and war while serving in Kosovo, Iraq, and Afghanistan.  Of particular note are the instances during which:

* he and his unit were engaged in firefights and subjected to IEDs
* he experienced the loss of his Team Leader
* he engaged with an Iraqi National who confessed to previously taking part in a firefight with the applicant's unit

5.  Subsequent to these experiences, medical evidence shows the applicant was diagnosed with PTSD/PTSD-related symptoms by a competent mental health professional.  Therefore, it is reasonable to believe the applicant's PTSD condition existed at the time of discharge on 25 February 2011. 

6.  The applicant's record is void of any serious previous misconduct during this period of service and the misconduct of assaulting an Iraqi National appears to have been an isolated event that was the result of an uncharacteristic lapse in judgment and rage brought on by his recollection of a traumatic event for which the Iraqi National was directly responsible.  Additionally, his offenses of misusing his government credit card (although this offense was also committed before he went to Iraq in 2007), disobeying orders, rendering false statements, missing medical appointments, failing to pay his debts all occurred after he was transferred to the WTU for medical evaluation and treatment and can be at least partially attributed to his medical condition at the time.

7.  It is concluded that PTSD conditions most likely contributed to the misconduct that led to the discharge.  After carefully weighing that fact against the severity of the applicant's misconduct, there is sufficient mitigating evidence to warrant upgrading the characterization of the applicant's service to a general discharge under honorable conditions and restoring his rank/grade to SGT/E-5 with a date of rank and effective date of 7 January 2010 (the date he was reduced from SSG/E-6 as a result of NJP under the provisions of Article 15).


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 to show that he was discharged on 25 February 2011 with a characterization of service of "General, Under Honorable Conditions" and his rank/grade as SGT/E-5 with a date of rank and effective date of 7 January 2010.

2.  The Board further determined that the evidence presented is 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 upgrading his characterization of service to honorable.



      _______ _   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)                                         AR20140018364



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ABCMR Record of Proceedings (cont)                                         AR20140018364



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