IN THE CASE OF:	  

		BOARD DATE:	  7 July 2015

		DOCKET NUMBER:  AR20150003576 


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 reconsideration of his earlier request to upgrade his general discharge to honorable and amendment of his separation authority, separation code, reentry eligibility (RE) code, and narrative reason for separation.  As a new issue, he also requests elimination of the dates of lost time shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states:

	a.  Early manifestations of his currently-diagnosed post-traumatic stress disorder (PTSD), undiscovered at the time of the Board's original decision, sufficiently mitigated his deficiencies of record to warrant an upgrade of his discharge to fully honorable.

	b.  His experience in Iraq was a very stressful moment in his life.  He deployed in September 2005.  His job consisted of security convoys, roving patrols, tower guard, gate guard, and refueling ground vehicles and aircraft.  He was also part of the quick response team which was tasked to locate the impact area of mortars hitting the forward operating base during enemy attacks.

	c.  He started to notice in his mental instability after a 7-hour convoy from Tikrit to Tal Afar.  Whenever he was alone in his quarters, he would hear loud voices in his head.  It would be a scream or yell and sometimes he would stare at his weapon and a voice would tell him to kill himself.  Two of his fellow comrades had committed suicide.  He knew it was time to seek help when he saw what looked like the devil sitting at the foot of his bed and he started to feel a burning sensation on his feet.

	d.  He went to a mental health physician twice in Iraq and explained what he was experiencing.  The physician informed him of a place in Mosul where they send Soldiers to get away from the stressors of combat for a while, but he told the physician he would rather stay with his unit and finish his tour.  After finishing his tour in Iraq, he had so much anger and rage built up inside of him that he found it difficult to control himself.  He was later discharged from the Army.

	e.  After his discharge from the military, he was diagnosed with PTSD as a service-related illness.  Despite his past and ongoing struggles with PTSD, he continues to be a productive citizen.  He has a full-time job as a public servant, he attends church and counseling, he goes to the gym five times a week, and he has a clean criminal record.

	f.  He refuses to accept the notion that a war veteran cannot successfully reintegrate into civilian life after seeing so many inhumane things at war.

	g.  The discharge he received as a result of his struggles with PTSD has plagued him both professionally and emotionally.  Although he is proud of the many accomplishments he has made despite his struggles with PTSD, he still aspires to do more.  He will never elevate to his highest potential unless he is granted an honorable discharge.  He is ashamed of having anything less than an honorable character of service on his DD Form 214.

	h.  During a time of war he put his country first and his dreams of competing in the Olympics aside because he knew at a young age the sacrifices a man must make for his country.  He has made mistakes in the military, but he honestly feels that he served his country honorably during a time of war.  He earned many awards, including the Army Commendation Medal.

3.  The applicant provides:

* DD Form 214
* Department of Veterans Affairs (VA) documentation and medical records

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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080008267 on 28 August 2008.

2.  The applicant provided a letter from the VA, dated 9 January 2013, which states he was granted 70-percent service-connected disability compensation for PTSD effective 14 May 2012.

3.  He also provided numerous VA records pertaining to his medications, vital statistics, laboratory results, and progress notes.  This VA documentation is new evidence that will be considered by the Board.

4.  The applicant enlisted in the Regular Army on 17 June 2004 and trained as a petroleum supply specialist.  He served in Iraq from 6 September 2005 to 16 August 2006.

5.  Between 19 July 2005 and 14 July 2006, nonjudicial punishment (NJP) was imposed against him twice for:

* being disrespectful in language toward a noncommissioned officer
* disobeying a lawful order
* assaulting individuals (two specifications)
* communicating threats (two specifications)

6.  He was counseled for:

* intimidating and violent behavior
* using profane language
* being disrespectful
* disrespectful body language and facial expressions
* communicating threats
* assaulting individuals
* failing to report to formation
* disobeying a superior commissioned officer
* failing to obey an order or regulation
* disorderly conduct

7.  On 13 February 2007, court-martial charges were preferred against him for the following violations:

* failing to go at the time prescribed to his appointed place of duty
* being absent without leave (AWOL) from 2 February 2007 to 6 February 2007
* being AWOL from 9 February 2007 to 12 February 2007
* being disrespectful toward a superior commissioned officer
* disobeying a lawful command
* being disrespectful in language and deportment toward his first sergeant
* using provoking gestures toward his first sergeant 

8.  On 21 February 2007, he consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He acknowledged that by submitting his request for discharge he was guilty of the charge(s) against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated he understood he might be discharged under other than honorable conditions (UOTHC), he might be ineligible for many or all benefits administered by the VA, he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged he might expect to encounter substantial prejudice in civilian life because of a discharge UOTHC.  He elected not to make a statement in his own behalf.

9.  On 27 February 2007, the separation authority approved the applicant's voluntary request for discharge and directed the issuance of a UOTHC discharge with reduction to private (PVT)/pay grade E-1.

10.  On 5 March 2007, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He completed 2 years, 8 months, and 12 days of creditable active service.  His service was characterized as UOTHC.

11.  His DD Form 214 shows in:

* item 25 (Separation Authority) – Army Regulation 635-200, chapter 10
* item 26 (Separation Code) – KFS
* item 27 (Reentry Code) – 4
* item 28 (Narrative Reason for Separation) – In Lieu of Trial by Court-Martial
* item 29 (Dates of Time Lost During This Period) – Under Title 10, U.S. Code, Section 972:  20070202-20070205; 20070209-20070211

12.  On 5 May 2008, the Army Discharge Review Board (ADRB) upgraded his discharge UOTHC to general under honorable conditions and restored his rank to specialist/E-4.  Full consideration was given to all of his faithful and honorable service as well as the infractions of discipline, the extent thereof, and the seriousness of the offenses.  The ADRB determined the overall length and quality of the applicant's service, to include his combat service, mitigated the discrediting entries in his service record.  While his misconduct was not condoned, the ADRB concluded the characterization of his service was too harsh and, therefore, inequitable.  However, the reason for his discharge was fully supported by the record and remained both proper and equitable.

13.  On 28 August 2008, the ABCMR denied his request for an upgrade of his general discharge to honorable and amendment of his narrative reason for separation, separation authority, and RE code.  In his original request, the applicant stated he joined the Army in a time of war and honorably served in Iraq for 1 year.  He claimed he was given poor legal advice by his counsel who told him he could face up to 6 years in a military prison based on his offenses.  The applicant's overall service record, including his service in Iraq, were considered; however, he was charged with multiple offenses punishable under the Uniform Code of Military Justice with a punitive discharge.  He voluntarily requested discharge for the good of the service in lieu of trial by court-martial and he did not provide any evidence showing any requirements of law or regulation were not met or that his rights were not fully protected throughout the separation process.

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

	a.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.  A discharge UOTHC requires reduction to the lowest enlisted grade.

	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.

	c.  Paragraph 3-7b provides that 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.

15.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard.  Table 3-1 includes a list of RE codes.

	a.  RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated.

	b.  RE-3 applies persons who are not considered fully qualified for reentry or continuous service at the time of separation but disqualification is waivable.

	c.  RE-4 applies to Soldiers who are separated from their last period of service with a nonwaivable disqualification.  They are ineligible for enlistment.

16.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  SPD code KFS applies to Soldiers who are voluntarily discharged in lieu of trial by court-martial.

17.  The SPD/RE Code Cross Reference Table, dated 15 June 2006, shows that Soldiers assigned an SPD code of KFS will be assigned an RE code of 4.

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's voluntary request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.  The type of discharge directed and the reason for his discharge were appropriate considering all the facts of the case.

2.  In May 2008, the ADRB upgraded his discharge UOTHC to general under honorable conditions based on his overall record of service.  There was no reference to a diagnosis of PTSD as a mitigating factor at that time.

3.  In August 2008, the ABCMR determined his discharge was proper and equitable and denied his request for an upgrade of his general discharge to honorable and amendment of his narrative reason for separation, separation authority, and RE code.  There was no reference to a diagnosis of PTSD as a mitigating factor at that time.

4.  The applicant contends he sought treatment from a mental health physician twice in Iraq and told the physician he would rather stay with his unit and finish his tour than seek stress relief in Mosul.  He further contends early manifestations of his currently-diagnosed PTSD, undiscovered at the time of the Board's original decision, sufficiently mitigated his deficiencies of record to warrant an upgrade of his discharge to fully honorable.  He provided a letter from the VA which states he was granted 70-percent service-connected disability compensation for PTSD effective 14 May 2012.  However, there is no evidence to support his contention that he sought treatment in Iraq and the available evidence is insufficient to show PTSD symptoms were a causative factor in the misconduct resulting in discharge.

5.  Since his record of service included adverse counseling statements, two NJPs, and 7 days of lost time due to AWOL, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  As a result, his record of service was not so meritorious as to warrant an honorable discharge.

6.  There is no evidence to show that his separation authority, separation code, and narrative reason for separation were not administratively correct and in conformance with applicable regulations at the time of his separation.  Therefore, there is no basis for amending items 25, 26, and 28 of his DD Form 214.

7.  The evidence of record confirms his RE code was assigned based on his discharge under the provisions of Army Regulation 635-200, chapter 10.  The RE code associated with this type of discharge is 4.  He received the appropriate RE code associated with his discharge.

8.  His request to eliminate the dates of lost time shown on his DD Form 214 was noted.  However, the evidence shows NJP was imposed against him for being AWOL from 2 February 2007 to 5 February 2007 and from 9 February 2007 to 11 February 2007.  Since there is no evidence and he provided no evidence that shows he was not AWOL during these periods, there is insufficient evidence on which to grant the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ____x___  ____x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 to amend the decision of the ABCMR set forth in Docket Number AR20080008267, dated 28 August 2008.

2.  With regard to the applicant's new request to eliminate the dates of lost time shown on his DD Form 214, the Board determined the evidence presented is insufficient to warrant a recommendation for relief.



      _______ _   _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)                                         AR20150003576



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ABCMR Record of Proceedings (cont)                                         AR20150003576



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