IN THE CASE OF: BOARD DATE: 18 August 2016 DOCKET NUMBER: AR20150004780 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 18 August 2016 DOCKET NUMBER: AR20150004780 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. __________x_______________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. IN THE CASE OF: BOARD DATE: 18 August 2016 DOCKET NUMBER: AR20150004780 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 an upgrade of his under honorable conditions (general) discharge due to the disability of post-traumatic stress disorder (PTSD). 2. The applicant states he was chaptered out of the Army in 1992 due to misconduct and assigned a reentry (RE) code of 3. Based on the new guidance regarding discharge upgrades and PTSD, he is requesting an upgrade. The Department of Veterans Affairs (VA) awarded him a rating of 70 percent for PTSD. When he separated from the Army, he was stationed in Germany with the 9th Engineer Battalion. This was after the Gulf War. Prior to that, he had no altercations or misconduct. 3. The applicant provides: * VA rating decisions and progress notes * DD Form 214 (Certificate of Release or Discharge from Active Duty) * DD Form 215 (Correction to DD Form 214) CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, and has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. Having had prior service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 23 May 1986. He held military occupational specialties 53D (Field Artillery Systems Mechanic) and 63Y (Track Vehicle Mechanic). 3. He served in Germany from December 1987 to April 1990 and from July 1990 to March 1992. He also served in Southwest Asia from 21 December 1990 to 12 June 1991. He was assigned to D Company, 9th Engineer Battalion. 4. He was frequently counseled by members of his chain of command for various infractions, including: * failing to obey orders * multiple instances of missing formations * being consistently late for training, work calls, and/or formations * not being recommended for promotion * taking extra newspapers from the paper machine * unacceptable attitude toward the Army * deliberately falling out of company runs * failing to report to his appointed place of duty * displaying apathy and bad attitude 5. On 13 February 1992, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for failing to go at the time prescribed to his appointed place of duty. His punishment consisted of a reduction to E-3, a forfeiture of pay, and extra duty. 6. On 18 March 1992, the applicant’s immediate commander notified him of his intention to initiate separation action against him in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, for misconduct – pattern of misconduct. The specific reason is cited as the applicant's misconduct (failing to go to his appointed place of duty, frequent counseling for missing formations, not reporting to duty, and being late to formations). His actions were prejudicial to the good order and discipline of the unit. The commander recommended the issuance of a general discharge. 7. The applicant acknowledged receipt of the commander's intent to separate him. He consulted with legal counsel who advised him of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on future enlistments or reenlistments, the possible effects of this discharge, and of the procedures/rights that were available to him. He waived consideration of his case by a separation board and/or a personal appearance before a separation board and elected not to submit a statement. He acknowledged he understood that: a. He could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. b. He could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge. 8. Subsequent to his acknowledgement, the applicant’s immediate commander initiated separation action against him in accordance with AR 635-200, paragraph 14-12b, for misconduct. His intermediate commander recommended approval with the issuance of a General Discharge Certificate. 9. On 19 March 1992, the separation authority approved the applicant's discharge from the Army under the provisions of AR 635-200, paragraph 14-12b, with an under honorable conditions (general) discharge. The applicant was accordingly discharged on 30 March 1992. 10. His DD Form 214, as amended by his DD Form 215, shows he was discharged under the provisions of paragraph 14-12b of AR 635-200 due to misconduct with a general characterization of service. He completed 5 years, 10 months, and 8 days of net active service this period. His DD Form 214 listed his narrative reason for separation as "Misconduct-Pattern of Misconduct," the separation code as "JKM," and the RE code of 3. 11. There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 12. He provides a VA rating decision, dated 23 December 2014, that shows he was awarded a service-connected disability rating effective 21 March 2014 for various conditions, including PTSD rated at 70 percent disabling. 13. The Board forwarded his VA rating decision to The Office of The Surgeon General (OTSG) for review to determine if there was a nexus between his claim of PTSD and the misconduct that led to his discharge. OTSG rendered an advisory opinion on 27 July 2016. An OTSG official references the Diagnostic and Statistical Manual of Mental Disorder, Fifth Edition; AR 40-501 (Standards of Medical Fitness); and AR 635-200. This official states: a. The applicant entered active duty on 23 May 1986 and he was discharged on 30 March 1992, under honorable conditions, in accordance with AR 635-200, chapter 14, paragraph 14-12b (Misconduct-Pattern of Misconduct). His records document multiple incidents of lateness, missing formation and failure to report. He was deployed to Saudi Arabia in 1990 and participated in the invasion of Iraq. b. In March 2014 (i.e. 2015), he requested that his discharge be upgraded to honorable because of PTSD. OTSG was asked to determine if the applicant's military separation was due to PTSD or any other behavioral health (BH) condition. This opinion is based solely on the information provided by the Board as the DOD electronic medical record (AHLTA) was not in use at the time. c. On 4 March 1992, he was evaluated by a BH provider who did not find that a BH condition was present and was psychiatrically cleared for administrative separation. He was first seen at the VA on 7 October 2014 and was diagnosed with PTSD based on his combat experience in the Persian Gulf. It was further noted that his social and occupational functioning was impaired by PTSD symptoms. On 23 December 2014, the VA granted service connection for PTSD at 70 percent evaluation, effective March 2014. According to his 30 October 2015 PTSD review evaluation, he continued to meet criteria for PTSD and maintain his previous level of functioning. d. There are no BH records during his time of service that indicate he met the criteria for PTSD or any other BH condition at the time of his separation. Furthermore, his own responses to the many counseling statements he received for lateness made no mention of a possible medical cause or his behavior. Also of note is the 22-year gap between his discharge and seeking treatment. e. The applicant has been diagnosed with PTSD, a condition that can contribute to infractions such as those for which he was discharged. However, there is no information provided that links PTSD symptoms to his misconduct Therefore, OTSG officials are unable to determine if his separation was due to a BH condition. 14. The applicant was provided a copy of this advisory opinion to allow him an opportunity to submit a rebuttal or comments. He responded with a statement on 22 July 2016. He stated: a. He has been receiving outpatient treatment from the San Jose Vet Center since November 2012. The Board should request his records from the Vet Center and review them. He meets with a psychiatrist on a quarterly basis and they discuss the events with him. It took him almost 2 years before he got a diagnosis of PTSD. b. He attached a statement, dated 19 July 2016, from the San Jose Vet Center. It states that he has been assessed for PTSD as a result of trauma he experienced during the Gulf War. He currently receives readjustment counseling (psychotherapy and psycho education). He has been receiving this therapy since November 2012. REFERENCES: 1. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, to include abuse of illegal drugs; convictions by civil authorities, and desertion or absence without leave. Action would be taken to separate a Soldier for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. Paragraph 14-12 prescribes the conditions that subject Soldiers to discharge for misconduct. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. 2. AR 635-5-1 (Separation Program Designator (SPD)) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. The regulation in effect at the time of his discharge stated the SPD code of JKM was the appropriate code to assign to Soldiers separated under the provisions of AR 635-200, paragraph 14-12b due to misconduct – pattern of misconduct. 3. PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster. The American Psychiatric Association (APA) publishes the Diagnostic and Statistical Manual of Mental Disorders (DSM) 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." 4. 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. 5. As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis and treatment of PTSD the Department of Defense (DOD) acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had an undiagnosed condition of PTSD at the time of their discharge. It is also acknowledged that in some cases this undiagnosed condition of PTSD may have been a mitigating factor in the Soldier's misconduct, which served as a catalyst for their discharge. Research has also shown that misconduct stemming from PTSD is typically based upon a spur of the moment decision resulting from temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues for an extended period. 6. 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 individuals 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. 7. Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge. 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: 1. The evidence of record shows the applicant served on active duty from 23 May 1986 through 30 March 1992. a. He displayed a pattern of misconduct ranging from multiple instances of missing formation, failing to repair, and apathy. Based on his repeated patterns of misconduct, his chain of command initiated separation action against him. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. b. His narrative reason for separation was assigned based on the fact that he was separated under the provisions of AR 635-200, chapter 14, for misconduct – patterns of misconduct. Absent his patterns of misconduct, there was no fundamental reason to process him for separation. The underlying reason for his discharge was his continued misconduct. The only valid narrative reason for separation permitted under that paragraph is "misconduct" and the separation code associated with this discharge is "JKM," which is correctly shown on his DD Form 214. Additionally, the corresponding RE code for this type of separation code is RE-3. 2. There is no evidence in his record and he provided none to support that he had PTSD during his military service. The only document he provided was the 2014 VA rating decision that granted him service-connected disability for PTSD at 70 percent, effective March 2014. There is no evidence of a relationship between PTSD or any behavioral health condition and the misconduct that led to his discharge. 3. The evidence does not indicate the existence of an error or injustice in the characterization of his service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150004780 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150004780 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2