IN THE CASE OF BOARD DATE: 16 June 2016 DOCKET NUMBER: AR20150006245 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: 16 June 2016 DOCKET NUMBER: AR20150006245 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: 16 June 2016 DOCKET NUMBER: AR20150006245 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 other than honorable conditions (UOTHC) characterization of service. 2. The applicant states he has made many mistakes in his life, but he is trying to get himself together and needs to get his DD Form 214 (Certificate of Release or Discharge from Active Duty) upgraded in order to receive benefits. He suffers from bipolar disorder, post-traumatic stress disorder (PTSD), and learning disabilities. 3. The applicant provides: * DD Form 214 * Memorandum, U.S. Army Criminal Investigation Command, subject: CID Report of Investigation – Final, dated 27 February 1992 * DD Form 458 (Charge Sheet), dated 19 March 1992 * Memorandum, subject: Request for Discharge for the Good of the Service, dated 27 March 1992 * Memorandum, Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, subject: Order not to Reenter or Be Found Within the Limits of the United States Military Reservation at Fort Bliss, TX, dated 18 May 1992 * Standard Forms (SF) 88 (Report of Medical Examination) * SF 513 (Consultation Sheet) * SFs 600 (Chronological Record of Medical Care) * SF 558 (Emergency Care and Treatment) * DA Form 5181-R (Screening Note of Acute Medical Care) 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, 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. On 1 November 1988, the applicant enlisted in the Regular Army (RA). After initial training, he was awarded military occupational specialty (MOS) 91A (Medical Specialist). 3. On 5 June 1989, the applicant received nonjudicial punishment (NJP) for failing to go at the time prescribed to his appointed place of duty. 4. In August 1991, his company commander referred him for a psychological evaluation due to concern about his poor job performance. The commander requested an evaluation of the applicant to include ruling out learning disorders. The evaluation shows: a. The applicant stated his problems began last year when he was falsely accused of stealing. He felt he had been consistently picked on since then. b. The findings stated the applicant may be prone to having an alcohol dependency. His personality reflected a state of rumination and self-absorption. Paranoid ideation may have been present and self-expectations were perfectionistic so that failure tended to be experienced as disastrous. The findings also show: * Verbal IQ – borderline * Performance IQ – low average * Full Scale – low average c. The recommendation stated the patient had a typical approach to life which brought him into conflict with those in authority over him and that the applicant could benefit from psychotherapy and should be evaluated through the Alcohol & Drug Abuse Prevention & Control Program. The commander was to meet with a psychologist on 8 October 1991. 5. A Memorandum for Record, dated 16 January 1992, subject: Psychiatric Evaluation on [Applicant], shows from 22 November 1991 to 10 January 1992, the applicant was under a psychiatrist’s care at William Beaumont Army Medical Center. He was referred by his company commander for psychiatric evaluation related to administrative discharge proceedings. The evaluation shows: He was found to have symptoms of an illness suggestive of a bipolar disorder. This was also evident in his psychological testing results. a. The evaluation shows: * On 17 December 1991, the recommendation was psychotherapy and psychotropic medication * On 24 December 1991, he agreed to take the medication and was ordered to undergo several essential laboratory tests as part of the treatment * On 31 December 1991, he was reevaluated, stated he was taking the medication, noting he only had 2 pills left, and he received another Lithium prescription * On 7 January 1992 he failed to show up or call for his appointment; another appointment was rescheduled for 9 January 1992 * On 10 January 1992 he showed up claiming he had run out of medication on 3 January 1992 stating he turned in his prescription on 9 January and lost his lab and appointment slip b. The recommendation stated he could benefit from psychotropic medication; however he did not take it for an adequate length of time. He did not cooperate and follow instructions; this and other types of action by him were strongly suggestive of a personality disorder. The examining physician suggested he be dealt with administratively. 6. On 18 December 1991, the applicant’s company commander stated in a memorandum that the applicant was arrested by the El Paso Police on 15 December 1991 for being drunk in public and voluntarily agreed to submit to urinalysis testing. (The tests were later confirmed to be positive for cocaine use. He was subsequently received NJP on 31 January 1992.) 7. On 22 January 1992, DA Form 3822 (Report of Mental Status Evaluation) was completed. The reason for the evaluation was misconduct. The examining physician reiterated the findings of his previous evaluation and again suggested he be dealt with administratively. 8. On 3 February 1992, the applicant received NJP for the wrongful use of a controlled substance and two specifications of failure to go at the time prescribed to his appointed place to duty. 9. A memorandum, subject: CID Report of Investigation-Final (C), dated 27 February 1992, shows the applicant was investigated for possession and use of a controlled substance. 10. A DD Form 458 (Charge Sheet), dated 19 March 1992, shows the applicant was pending court-martial charges for violating of a lawful general regulation by wrongfully possessing drug paraphernalia, wrongfully possessing cocaine, wrongfully using cocaine (three specifications), and wrongfully distributing some amount of cocaine. 11. On 27 March 1992, the applicant consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an UOTHC discharge, and procedures and rights available to him. Subsequent to receiving legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial and admitted that he was guilty of the charge(s) against him or of a lesser included offense. 12. In his request for discharge, the applicant indicated he understood that by requesting discharge 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 make a statement in his own behalf. 13. On 18 May 1992, the separation authority official approved his request and directed that he receive a UOTHC discharge and reduction to the lowest enlisted grade. 14. On 1 June 1992, the applicant was discharged accordingly. His DD Form 214 shows he completed 3 years, 7 months, and 1 day of net active service. He was discharged in the rank/grade of private/E-1. 15. His available military records are void of any evidence and he does not provide any evidence of a diagnosis of PTSD. ; however, his mental health records show he was diagnosed with Bipolar Disorder and a personality disorder that may have occurred or worsened while he was serving on active duty. 16. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 17. In the processing of this case an advisory opinion was received on 21 April 2016 from the staff clinical psychologist, Army Review Boards Agency (ARBA). Dr. J____ stated: a. In accordance with Army Directive 2014-28 (Subject: Requests to Upgrade Discharge by Veterans Claiming PTSD), and based on the information available for review at this time, the applicant’s record reasonably supports the condition of bipolar disorder which existed at the time of his military service. b. Bipolar disorder may be considered a likely mitigating factor for the misconduct listed above, especially when the individual’s symptoms are not routinely managed under medication treatment, as in the applicant’s case. c. The only behavior above not likely mitigated by the applicant’s behavioral health condition is the wrongful distribution of some amount of cocaine. d. In accordance with Title 10, U.S. Code, section 1177 (Subject: Members diagnosed with or reasonably asserting PTSD or traumatic brain injury: medical examination required before administrative separation), the requirement for a behavioral health examination prior to separation from service was not applicable to the applicant’s case for the following reason: he was discharged from the military on 1 June 1992, and it was not until 28 October 2009 that Title 10, U.S. Code, section 1177, was signed into law. 18. The above advisory was forwarded to the applicant for his comments and/or rebuttal. No response was received. REFERENCES: 1. 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 at any time after the charges have been preferred. A discharge under other than honorable conditions is normally considered appropriate. b. Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. 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. 2. 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." 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. 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. 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 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 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. 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 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. 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 UOTHC 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 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. 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 applicant contends that his diagnosis of bipolar disorder and a personality disorder contributed to his bad decision to use drugs. He attempted to seek help but for reasons unknown was not able to control his behavior or fully adhere to treatment. 2. His available military records are void of any evidence and he does not provide any evidence of a diagnosis of PTSD. 3. 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. In doing so, he admitted guilt and waived his opportunity to appear before a court-martial. 4. Evidence shows that the applicant was properly and equitably discharged in accordance with regulations in effect at the time; there is no indication of administrative or procedural error. The type of discharge directed and the reason for separation were appropriate. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150006999 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150006245 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2