IN THE CASE OF:	  

		BOARD DATE:	  29 October 2015

		DOCKET NUMBER:  AR20150007552


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, through his Member of Congress, requests an upgrade of his service characterization from under other than honorable conditions (UOTHC) to honorable.

2.  The applicant states, in effect, that post-traumatic stress disorder (PTSD) was the catalyst for the misconduct that resulted in his discharge.  He contends the mental and physical injuries he sustained directly influenced his timely return to service.   

3.  The applicant provides:

* a letter from the office of his Member of Congress, addressed to the Army Board for Correction of Military Records (ABCMR), dated 19 March 2015
* a privacy release form from the office of his Member of Congress
* a hand-written letter addressed to his Member of Congress, dated          29 September 2014
* third-party letters from three of his siblings, addressed to a staff member at the office of his Member of Congress
* his letter, dated 13 October 2010, which was considered by the ABCMR under Docket Number AR201000026583

4.  Additionally, the applicant provides the following historical documents, arranged chronologically:

* his hand-written timeline of events
* DA Forms 1059 (Service School Academic Evaluation Report), dated
4 September 1993, 11 April 1998, 31 May 2003, and 20 June 2004
* California Army National Guard (CAARNG) Form 672-16-R (Counterdrug Service Ribbon Certificate of Eligibility), dated 3 July 1996
* DA Form 2173 (Statement of Medical Examination and Duty Status), dated 7 April 1998, with supporting documentation
* a memorandum from the 94th Regional Support Command, subject: Information Request/Address Verification, dated 6 February 2003
* Orders C-02-306362, issued by the U.S. Army Reserve Personnel Command, St. Louis, Missouri on 27 February 2003
* DA Form 2173, dated 14 June 2004
* DA Form 3349 (Physical Profile), dated 10 September 2004, 3 April 2005, 6 March 2006 and 21 November 2006
* DA Form 7349 (Initial Medical Review – Annual Medical Certificate), dated 28 August 2005
* Standard Form (SF) 600 (Chronological Record of Medical Care), dated 25 September 2005, 24 February 2006 and 20 June 2006
* Red Cross messages, dated 21 February and 1 March 2006
* DA Form 2823 (Sworn Statement), provided by the applicant on 2 March 2006
* DA Form 4856 (Developmental Counseling Form), dated 4 March 2006
* Air Force (AF) Form 1536 (Physical Therapy Consultation – Continuation Sheet), dated between 6 and 20 March 2006
* a memorandum from the Commander, 220th Transportation Company to the Commander, 181st Transportation Battalion, dated 18 March 2006
* DA Form 31 (Request and Authority for Leave), for rest and recuperation (R&R) leave commencing on 21 March 2006
* his flight itinerary, dated 22 March 2006
* a letter from the Department of Social Services, Executive Office of Health and Human Services, for the Commonwealth of Massachusetts, dated     10 April 2006
* an email message from his first sergeant, dated 13 April 2006
* medical documentation from Baystate Medical Center, Springfield, Massachusetts, dated 13 April 2006
* email written between him, his commander, and his first sergeant, dated between 14 April and 1 May 2006
* DA Form 2823, provided by his first sergeant on 28 April and 3 May 2006
* a letter from his first sergeant, addressed to his sister, dated 1 May 2006
* Authorization to Release Medical Records to Other Party, from the office of his physician, dated 5 May 2006
* an email from his physician's assistant to his first sergeant, dated 5 May 2006
* email from his commander, dated 6 and 8 May 2006
* DD Form 553 (Deserter/Absentee Wanted by the Armed Forces), dated   8 May 2005 [sic]
* a letter from his physician, dated 9 May 2006
* 2 copies of a letter from his son's pediatrician at the Pediatric Associates of Hampden County, Massachusetts, Incorporated., dated 13 May 2006
* an email from the Assistant Staff Judge Advocate of the 94th Regional Readiness Command, Devens, Massachusetts, dated 16 June 2006
* an email message, dated 19 June 2006
* a facsimile transmittal sheet from the Medical Treatment Facility at Hanscom Air Force Base, Massachusetts, dated 21 June 2006
* an SF 513 (Consultation Report), dated 20 June 2006
* surgical authorization forms
* letters from Health Net Federal Services, dated 27 and 29 June 2006
* an operative report from Emerson Hospital, Concord, Massachusetts, dated 25 July 2006
* physician's notes, dated 13 September 2006
* a letter from the Army Reserve G-1 to his Member of Congress, dated    16 November 2006
* a letter from his physician, dated 21 December 2006
* Orders 064-0166, issued by Headquarters, U.S. Army Armor Center and Fort Knox, Kentucky on 5 March 2007
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 7 March 2007
* third-party letters of support, dated 1 October 2007 and 6 November 2007
* medical summary from Baystate Magnetic Resonance and Imaging Center, dated 9 January 2008
* a letter from the Department of Veterans Affairs (VA), dated 25 January 2008
* SF 509 (Medical Record – Progress Notes), from the Northampton VA Medical Center, dated 12 June 2008
* a Neuropsychological Assessment, dated 15 June 2008
* an extract of his progress notes, printed from the Veterans Integrated System Technology Architecture, Northampton VA Medical Center on
9 September 2008
* VA Form 10-1000 (Discharge Summary), dated 12 September 2008
* a letter from his clinical neuropsychologist, dated 16 June 2009
* his VA rating decision, dated 29 September 2009
* letters from the VA, dated 2 June and 25 August 2010
* Health Summary from the Boston Healthcare System VA Medical Center, dated 25 August 2010
* letters from the Army Review Boards Agency, dated 29 March and 8 June 2012
* a letter from the VA, dated 27 January 2014
* a letter from the Springfield Veterans Center, West Springfield, Massachusetts, dated 22 December 2014
* a letter from the Berlin Veterans Center, Gorham, New Hampshire, dated  15 January 2015 

CONSIDERATION OF EVIDENCE:

1.  The applicant served in the Regular Army from 19 August 1982 through       17 September 1984.  He served in the Massachusetts Army National Guard (MAARNG) from 5 June 1992 through 15 September 2002.  Upon his discharge from the MAARNG, he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).

2.  He was reassigned from the USAR Control Group (Reinforcement) to the 304th Transportation Company (Medium Truck), a troop program unit of the USAR, effective 27 February 2003.

3.  He was mobilized and ordered to active duty in support of Operation Iraqi Freedom.  He entered active duty on 23 August 2005 and deployed to Iraq on or about 10 November 2005.  He served in Iraq with the 220th Transportation Company.

4.  He was granted leave to return to the continental United States (CONUS), effective 21 March through 8 April 2006.    

5.  His unit reported him absent in an absent without leave (AWOL) status when he failed to return from CONUS on 9 April 2006.  

6.  He was diagnosed on or about 5 May 2006 with extensive medical issues involving a herniated disc in his lower back.   

7.  He was dropped from the rolls of the Army on 9 May 2006.

8.  He was returned to military control on 11 November 2006.

9.  Court-martial charges were preferred against him on 30 November 2006, based on his period of AWOL from on or about 9 April 2006 through 
11 November 2006.

10.  He consulted with legal counsel on 30 November 2006 and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and the procedures and rights available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.

11.  In his request for discharge, he indicated he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person.  He indicated he understood that by requesting discharge, he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He acknowledged he understood if the discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He elected not to submit statements in his own behalf.

12.  His company commander's endorsement of his request for discharge is not available for review; however, his battalion commander endorsed his request and recommended his discharge on 5 February 2007, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.

13.  The separation authority approved his request for discharge on 16 February 2007, and directed his reduction from the rank/grade of specialist/E-4 to the lowest enlisted grade, private/E-1, and the issuance of an under other than honorable conditions discharge.

14.  He was discharged accordingly on 7 March 2007.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was credited with 11 months and 13 days of net active service during this period; however, he had lost time from 9 April to 10 November 2006.  His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, and he was issued an under other than honorable conditions discharge.

15.  The applicant appeared at a personal appearance hearing before the Army Discharge Review Board (ADRB) on 23 August 2010; however, the ADRB denied his request for a discharge upgrade.  His ADRB Case Report and Directive does not cite PTSD as a consideration or factor in that board's decision. 

16.  The applicant petitioned the ABCMR for an upgrade of his service characterization; however, the ABCMR denied his request under Docket Number AR20100029922, on 4 August 2011.  The Record of Proceedings in this case notes that on 6 October 2009, the Office of Personnel Management notified him that he had been found disabled, as a mail carrier, due to PTSD, degenerative disc disease with a herniated disc, and a torn meniscus of the knee.

17.  The applicant provides, in effect:

	a.  His hand-written timeline of events that chronicles relevant dates and included mention of his spouse's mental health and his son's behavioral health issues, as well as his own medical issues involving his back.

   b.  Two Red Cross messages he received on 21 February and 1 March 2006, which further detail his spouse's mental health and his son's behavioral health issues.

	c.  Documents regarding his family care plan and custodial issues pertaining to his son.

	d.  Documents that show he requested emergency leave to return to CONUS to address custody issues related to his son.  He was granted leave from          21 March to 8 April 2006; however, both his DA Form 31 and DA Form 4187 show his leave was classified as rest and relaxation (R&R) leave instead of emergency leave.

   e.  Numerous medical documents that show he suffered from a herniated disc in his lower back.  This issue eventually required surgery, which he underwent on 25 July 2006.

	f.  Numerous medical documents that show that, in addition to his herniated disc, he was diagnosed with PTSD on several occasions following his discharge from the Army.  His VA Progress Notes from 12 June 2008 contain the following notes, quoted as they appear:
      
      (1)  IEDs (improvised explosive devices) were a common event and one never knew when they would detonate.  Pressure activated most feared or shaped charges enroute from Fire Support Base Speicher to Taji to Anaconda and TQ.
      
      (2)  Complex attacks usually followed IEDs, Taji, TQ.  Small arms fire, armor piercing bullets.
      
      (3)  Mortars, RPGs (rocket propelled grenades) at Anaconda and Mackenzie.
      
      (4)  Combat flight returns back into northern Iraq after convoys (leaving equipment) into southern Iraq.  Flew in hot several times.
      
      (5)  After going on repetitive missions my lower back (was) worn I had to go into traction at Camp Anaconda.
      
      (6)  During leave I was incapacitated with herniations in my back.  Had surgery (private sector, referred by military) and my unit (carried me in an) AWOL (status) causing undue hardship upon my family and me.  Was sent home for Red Cross issues originally.

	g.  Documents from the VA, including his VA rating decision dated 
29 September 2009, which show he was determined to be disabled due to numerous mental and physical issues, including service-connected PTSD.

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

   a.  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.

   b.  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.
   
   c.  Chapter 10 of the regulation in effect at the time provided for the separation of enlisted Soldiers for the good of the service, in lieu of trial by court-martial.  It stated, in pertinent part, 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 under other than honorable conditions is normally considered appropriate.  However, at the time the applicant was discharged an undesirable discharge was considered appropriate.
19.  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 an 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." 

20.  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.

21.  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. 

22.  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 the Army (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.  

23.  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.

24.  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?

25.  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.  
   
   a.  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.  
   
   b.  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.  
   
   c.  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.  The applicant's request for an upgrade of his under other than honorable conditions discharge based on the existence of PTSD as a mitigating factor was carefully considered.

2.  The applicant was granted R&R leave from 21 March to 8 April 2006 to return to CONUS to address family-related issues.  Once in CONUS, he further aggravated an existing medical issue involving a herniated disc in his lower back, which eventually required surgery.  Nevertheless, he had an obligation to return to his unit from leave and he made a conscious decision not to do so.  Consequently, his unit processed him as a deserter.  

3.  After his return to military control, he was discharged from the Army in lieu of trial by court-martial.  His discharge proceedings were conducted in accordance with law and regulations in effect at the time.  The characterization of his service  was commensurate with the reason for discharge and his overall record of military service in accordance with the governing regulations in effect at the time.

4.  After his discharge, he was diagnosed by the VA with service-connected PTSD based on numerous stressors he experienced in Iraq.  The DOD now has a 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.  Consequently, Soldiers who suffered from PTSD, who were separated solely for misconduct subsequent to a traumatic event, warrant careful consideration for the possible re-characterization of their overall service.  

5.  A review of the applicant's record and the evidence he provides shows he was subjected to the ordeals of war while serving in Iraq.  Based on those experiences, he was diagnosed with PTSD by a competent mental health professional.  It is impossible to know for certain whether his service-connected PTSD played a role in the misconduct that ultimately led to his discharge.  However, it is likely his service-connected PTSD was a causative factor in the misconduct that led to his discharge.  

6.  His record is void of any misconduct prior to his service in Iraq; however, the seriousness of deserting his unit at a time when that unit was deployed in a theater of war should not be completely overlooked.  

7.  After carefully weighing that facts against the severity of the applicant's misconduct, there is sufficient mitigating evidence to warrant upgrading the applicant's characterization of service to under honorable conditions (general), and to warrant restoring his rank/grade to SPC/E-4 with an effective date of        7 March 2007.

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 DOD records of the individual concerned be corrected by re-issuing the applicant's DD Form 214 to show his characterization of service as "Under Honorable Conditions (General)" and his rank/grade as SPC/E-4 with an effective date of 7 March 2007.
 
2.  The Board further determined 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 the applicant's DD Form 214 to show his characterization of service as "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)                                         AR20150007552



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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