IN THE CASE OF: BOARD DATE: 15 September 2016 DOCKET NUMBER: AR20150006505 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: 15 September 2016 DOCKET NUMBER: AR20150006505 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: 15 September 2016 DOCKET NUMBER: AR20150006505 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) discharge to an honorable or general, under honorable conditions discharge. 2. The applicant states: a. He received a chapter 10 discharge but he never pled guilty to an offense. It has been 23 years and he has received stern punishment since then for his offense. Since his discharge, he has been a good citizen and he suffers from post-traumatic stress disorder (PTSD) and bipolar disorder and needs Department of Veterans Affairs (VA) benefits. His PTSD was a problem during his active duty service and the date of the offense. After his discharge, he suffered from severe depression and PTSD and was diagnosed by the VA. He is deemed unemployable and everyday life is miserable. b. He is asking the Board to upgrade his discharge to allow him to seek mental health and other useful psychiatric therapy from the VA. He realizes the magnitude of the offense he committed while serving. He has suffered from suicidal attempts and is in need of help. He has truly suffered enough and apologizes for any inconvenience he caused his fellow Soldiers and the victims. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * five pages from an Army Discharge Review Board (ADRB) Case Report, undated * nine pages of treatment records from the Hampton - Newport News Community Services Board (CSB), dated between 17 July 2013 and 3 November 2014 * a letter from the VA, dated 29 December 2015 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. The applicant enlisted in the Regular Army on 20 January 1988. On 3 April 1989, he was assigned to D Company, 2nd Battalion, 4th Aviation Regiment, Germany. On 1 December 1989, he was promoted to specialist (SPC)/E-4. 3. On 4 May 1990, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for two specifications each of failing to go to his appointed place of duty at the prescribed time. Part of the punishment imposed was reduction to private first class/E-3. This Article 15 is not available for review with this case. 4. He was subsequently transferred to I Company, 4th Aviation Regiment. On 1 March 1991, he was promoted to SPC. 5. On 28 April 1991, after being involved in a motor vehicle accident with German nationals, he was apprehended by the Military Police and charged with driving while intoxicated, failing to yield the right way, and operating a motor vehicle without an operator's permit in his possession. 6. His record contains a letter of reprimand, dated 3 June 1991, from Brigadier General (BG) JSD, Assistant Division Commander. BG JSD stated, in part: a. The applicant was formally reprimanded for driving a vehicle while intoxicated with a blood alcohol test of 1.37. As a Soldier, he was expected to conduct himself in a professional manner at all times. His misconduct had brought discredit upon himself and the U.S. Army and he would not tolerate it. b. The reprimand was imposed as an administrative measure and not as punishment under Article 15, UCMJ. 7. On 24 June 1991, court-martial charges were preferred against him for one specification each of on 28 April 1991: * operating a vehicle while drunk in a reckless manner by failing to yield the right of way before making a left turn, causing the vehicle to strike and injure two German nationals * violating a lawful general regulation by wrongfully operating a privately owned vehicle without having a valid operator's license in his possession 8. In a memorandum to the Division Commander, dated 19 July 1991, the Brigade Commander stated, on 16 July 1991 a summary court-martial was opened. During the proceedings, the applicant objected to a trial by summary court-martial. He was forwarding the entire court-martial packet for review and recommended the charges be referred to a special court martial. 9. On 3 September 1991, the applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the 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 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. 10. In his request for discharge, he acknowledged: a. He was submitting the request of his own free will and had not been subjected to any coercion, that he was guilty of an offense or lesser included offense which authorized the imposition of a bad conduct or dishonorable discharge, and that under no circumstances did he desire further rehabilitation or to perform further military service. He declared his legal counsel explained to him to his complete understanding and satisfaction, all legal and social ramifications of that type of discharge he could receive and what it would mean to him in the future. b. He acknowledged he understood if the request were approved he might be discharged under other than honorable conditions. He also acknowledged he understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the VA, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life. 11. In a statement he submitted in his own behalf, he asked the convening authority to consider the fact that he have served honorably for 3 and a half years and that the opportunities for advancement and educational experience he received daily from the Army would provide a good foundation for his future. Prior to the charges filed against him, he had an unblemished record and was truly sorry that anyone had to be injured due to his own irresponsibility. He asked that he be discharged with a general, under honorable conditions discharge. 12. On 4 September 1991, his senior commander recommended approval of the applicant's request with the issuance of an UOTHC Discharge Certificate. 13. On 6 September 1991, the separation authority approved his request for discharge, directed his reduction to private (PV1), and that his service be characterized as UOTHC. 14. On 12 September 1991, he underwent a mental evaluation. The examining physician found his behavior was normal, he was fully alert and oriented, his mood was unremarkable, thinking process clear, his thought content was normal, and he had the mental capacity to understand and participate in proceedings (emphasis added). 15. On 12 September 1991, he underwent a medical examination. On the Standard Form (SF) 93 (Report of Medical History), dated 12 September 1992, he stated he was in good health and was not taking any medication. He checked the appropriate blocks on the form to indicate that he did not have and never had frequent trouble sleeping, depression or excessive worry, or nervous trouble of any sort. 16. His SF 88 (Report of Medical Examination), dated 12 September 1991, shows the examining physician did not note any physical or psychiatric defects and he was found fit for separation. His PUHLES was 1-1-1-1-1-1. 17. On 20 September 1991, he was discharged in the rank of PV1. The DD Form 214 he was issued shows he was discharged under the provisions of AR 635-200, chapter 10, for the good of the service - in lieu of trial by court martial with an UOTHC characterization of service. 18. His record is void of any evidence that shows he was ever treated for or diagnosed with any mental condition/disorder while serving on active duty. 19. On 8 July 1997, the ADRB denied his request for an upgrade of his discharge and determined his discharge was both proper and equitable. 20. The applicant provides client progress notes, dated between 17 July 2013 and 3 November 2014, wherein, in part, they show the Newport News Criminal Court requested he be evaluated after he was involved in a domestic dispute with his girlfriend, arrested and incarcerated for 15 days, after not taking his prescribed medication. He was subsequently diagnosed with and treated for mood disorder not otherwise specified (NOS), bipolar disorder, anxiety disorder, PTSD, depressive disorder, and alcohol abuse. 21. In the processing of this case an advisory opinion was received on 29 July 2016 from the Chief, Behavioral Health (BH) Division, Office of the Surgeon General (OTSG). The advisory official stated: a. References: Diagnostic and Statistical Manual-5 (DSM-5); AR 40-501 (Standards of Medical Fitness), with revision, dated 4 August 2011; and AR 635-200, dated 6 September 2011. b. The applicant entered active duty on 28 January 1988 and was discharged on 28 September 1991 UOTHC in accordance with AR 635-200, chapter 10. c. In September 2015, the applicant requested the Board upgrade his discharge from UOTHC so he would be eligible for VA medical benefits for his BH conditions. OTSG was asked to determine if the applicant's military separation was due to PTSD or any other BH condition. This opinion is based solely on the information provided by the Board as the Department of Defense (DOD) electronic medical record (AHLTA) was not in use at the time. d. While stationed in Germany, the applicant was charged with failing to yield the right of way, driving while intoxicated, striking and injuring two civilians, and the case was referred to a special court-martial. He requested a chapter 10 separation in lieu of trial by court-martial. e. Records indicate the applicant has been in treatment with the Hampton - Newport News CSB since July 2013 when he requested crisis stabilization. On 9 September 2013, he was discharged from inpatient BH hospitalization on sertraline and quetiapine. The applicant told the CSB he used to receive VA services until they realized he was not eligible for care because of his UOTHC discharge and cut him off. He was diagnosed with mood disorder (NOS);history of PTSD; and history of alcohol dependence, and receives Supplemental Security Income (SSI) and Medicare. f. Although other sources have presented mitigating factors at the time of the accident, expressing the opinion that his punishment was excessive in light of his otherwise outstanding performance and conduct, there is no documentation to indicate that the applicant met the criteria for PTSD or any BH condition at the time of the automobile accident that led to his separation. 22. On 4 August 2016, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal; however, no response was received. 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 included 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. A discharge UOTHC is normally considered appropriate. 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 was issued to a Soldier whose military record was 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 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. 4. The 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 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. 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. DISCUSSION: 1. The evidence of record confirms the applicant was charged with the commission of serious offenses punishable under the UCMJ with a punitive discharge and was discharged on 20 September 1991 under the provisions of AR 635-200, chapter 10, with an UOTHC characterization of service. Discharges under the provisions of AR 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. 2. As such, he voluntarily requested a discharge to avoid trial by a court-martial. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The type of discharge directed and the characterization of his service were appropriate considering all the facts of the case. 3. While he provides evidence that shows by 2013 he has been diagnosed with PTSD, this is well over 20 years after his discharge. Regardless, his record is void of any evidence that shows he was ever treated for or diagnosed with any mental condition/disorder while serving on active duty and the evidence of record clearly shows he was mentally competent at the time of his discharge. 4. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits. Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge. 5. Based on a review of his complete record of service, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and does not meet the criteria for an honorable or a general discharge //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150006505 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150006505 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2