IN THE CASE OF: BOARD DATE: 25 August 2016 DOCKET NUMBER: AR20150005756 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: 25 August 2016 DOCKET NUMBER: AR20150005756 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20100014333, dated 16 November 2010. _____________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: 25 August 2016 DOCKET NUMBER: AR20150005756 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 for an upgrade of his under other than honorable conditions discharge, due to post-traumatic stress disorder (PTSD). 2. The applicant states: * he served his first term of service honorably and he reenlisted; it was not until his second period of service that he had mental problems * he was mistakenly incarcerated from October 1982 to February 1983 due to mistaken identity * he was held at the Philadelphia Detention Center; his discharge was in effect a result of his PTSD * he has medical issues that he hopes the Board would consider mitigating; he loves our country and would serve again if he could 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * 2015 Letter from safe Meadow Health Center * 2015 letter from the Department of Veterans Affairs (VA * 2015 clinical summary and medical review * 2013 adult psychiatric report * Other Safe Meadow Health Center medical forms 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 AR20100014333, dated 16 November 2010. 2. The applicant does not meet the criteria for a request for reconsideration because his request was not received within 1 year of the Board's original decision. However, in view of the Secretary of Defense's Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming PTSD, his request warrants consideration by the Board. 3. The applicant enlisted in the Regular Army (RA) on 30 August 1979 and he held military occupational specialty (MOS) 13B (Cannon Crewman). He served in Germany from 13 December 1979 to 8 December 1981. 4. Following his Germany tour, he was reassigned to Fort Hood, TX where he reenlisted on 22 March 1982. He had been previously advanced to E-4 in November 1980. 5. On 21 July 1982, he departed his Fort Hood unit in an absent without leave (AWOL) status and on 20 August 1982, he was dropped from the Army rolls as a deserter. He returned to military control on 23 August 1982 at Fort Dix, NJ. 6. On 14 September 1982, he departed his Fort Dix unit in an AWOL status and on 15 September 1982, he was again dropped from the rolls as a deserter. He ultimately returned to military control on 11 March 1983 at Fort Dix. 7. On 14 March 1983, he departed his Fort Dix unit in an AWOL status and on 15 Mach 1983; he was again dropped from the Army rolls as a deserter. He returned to military control on 25 March 1983 at Fort Dix. 8. On 28 March 1983, court-martial charges were preferred against him for being AWOL from 14 March 1983 to 25 March 1983, 21 July 1982 to 23 August 1982, and 14 September 1982 to 11 March 1983. 9. On 30 March 1983, the applicant consulted with legal counsel. Counsel advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him. Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service – in lieu of trial by court-martial. In his request for discharge, the applicant acknowledged: * he was making this request on his own free will and he had not been subjected to any coercion whatsoever * he understood that if the discharge request was approved he could be discharged under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate * he acknowledged he understood that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, that he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he acknowledged he understood he could expect to encounter substantial prejudice in civilian life * he elected not to submit a statement in his own behalf 10. His immediate, intermediate, and senior commanders recommended approval with the issuance of an under other than honorable conditions discharge. The chain of command agreed that the applicant lacked the motivation to serve. 11. On 16 April 1983, the separation authority approved the applicant's voluntary request for discharge under the provisions of AR 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial and directed the applicant be reduced to the lowest enlisted grade, if applicable, and furnished an Under Other Than Honorable Conditions Discharge Certificate. Accordingly, the applicant was discharged on 29 April 1983. 12. His DD Form 214 shows he was discharged under the provisions of chapter 10 of AR 635-200, for the good of the service – in lieu of trial by a court-martial with an under other than honorable conditions characterization of service. He completed 3 years and 20 days of net active service this period with 222 days of lost time. 13. There is no indication he petitioned the Army Discharge Review Board for a review of this discharge processing within that board's 15-year statute of limitations. 14. On 16 November 2010, the Board denied his petition for an upgrade of his discharge. 15. He provides a post-service letter from the Safe Meadow Health Center, a letter from the VA, a clinical summary and medical review, an adult psychiatric report, and other Safe Meadow Health Center medical forms. The Board submitted these documents to the Office of The Surgeon General (OTSG) for review to determine if there is a nexus between any behavioral health condition he may have had and the misconduct that led to his discharge. OTSG rendered an advisory opinion on 18 July 2016 in the processing of his case. An OTSG official referenced the Diagnostic and Statistical Manual-5th Volume; AR 40-501, with revision, dated 4 August 2011; and AR 635-200, dated 6 September 2011. The OTSG official stated: a. The applicant entered active duty on 30 August 1979 and was honorably discharged on 23 March 1982 prior to reenlisting. He was discharged under conditions other than honorable on 29 April 1983 in accordance with chapter 10 (for the good of the service) of AR 635-200. In March 2015, he requested that the Board upgrade his discharge to honorable. OTSG was asked to determine if 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 lime. b. In a statement supporting his request, he explained that he was erroneously incarcerated from October 1982 through February 1983 because of a mistaken identity case that was eventually dismissed. His records indicate that he was treated for bipolar affective disorder at Safe Meadow Health Center in November 2011, that he was awarded Social Security Disability Insurance, and that he responded well to psychotropic medication. c. The absence of any BH treatment records from the date of his discharge until November 2011 makes it difficult to determine if his separation was related to a BH condition. However, the subsequent severity of his illness and the degree of functional impairment sustained suggest that BH symptoms could have been a mitigating factor in the misconduct that led to his discharge. 16. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal or any additional comments. He did not respond. REFERENCES: 1. AR 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, an undesirable discharge is normally considered appropriate. b. Paragraph 3-7a states 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 states 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. 2. PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster. Military Sexual Trauma and Stalking are stressors that could lead to PTSD. 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." 3. 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. 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, 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 former service members administratively discharged under other than honorable conditions 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. 7. 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? 8. Although the 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 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 under other than honorable conditions characterization of service. Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of under other than honorable conditions. 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. The evidence of record shows the applicant served on active duty from 30 August 1979 to 21 March 1982. He service was satisfactory and he reenlisted on 22 March 1982. During his second period of enlistment, he left his unit in an AWOL status on three separate occasions. When he returned, court-martial charges were preferred against him. a. He was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial. He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. b. There is no evidence of record and none was provided with this application to show he suffered an injury or was diagnosed with a physical or a mental illness, including PTSD, or any other medical condition that rendered him unable to reasonably perform the duties required of his former grade or military specialty or caused him to go AWOL. c. He was not discharged because of any medical condition. He was discharged because he chose to go AWOL on several occasions, and when he was returned to military control he chose to be discharged. His AWOL and request for voluntary discharge interrupted his service. d. The available evidence clearly shows he elected to go AWOL. Additionally, upon having court-martial charges preferred against him, he exercised his right to consult with counsel. His options were to face the court-martial that could have adjudged a dishonorable or a bad conduct discharge or submit a voluntary request for discharge. He voluntarily chose the discharge. He made those choices. 2. The advisory official opines that post-service severity of his illness, first documented in 2011, and the degree of functional impairment sustained suggest that BH symptoms could have been a mitigating factor in the misconduct that led to his discharge. 3. Based on the applicant's record of indiscipline, his service during the referenced period clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. The evidence does not clearly show to what degree, if any, BH symptoms may have contributed to his misconduct. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150005756 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150005756 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2