IN THE CASE OF: BOARD DATE: 22 September 2016 DOCKET NUMBER: AR20150007714 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: 22 September 2016 DOCKET NUMBER: AR20150007714 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 to amend the decision of the ABCMR set forth in Docket Number AR20110013061, dated 26 January 2012. ___________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: 22 September 2016 DOCKET NUMBER: AR20150007714 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 previous request for an upgrade of his general, discharge to an honorable discharge. 2. The applicant states, in effect: a. He was diagnosed with post-traumatic stress disorder (PTSD) and he might not be employable. He had to drop his classes due to his condition. He has been depressed because of the discharge. b. After serving in Iraq, he had confrontations with his squad leader on a daily basis and he felt useless; he was put down and attacked emotionally and verbally. He was given an option to leave early or deal with a court-martial. His discharge has caused him stress and depression; he does not think he was treated fairly. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Department of Veterans Affairs (VA) Rating Decision * Letter from the VA * Letter from the Social Security Administration (SSA) 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 AR20110013061 on 26 January 2012. 2. Based on the applicant’s claim that he has PTSD, his application is being reviewed under the 2014 Secretary of Defense's guidance to Military Boards for Correction of Military (BCM)/Naval Records (NR). 3. On 12 May 2015, the applicant was sent a letter informing him that in order for the Board to consider his application he needed to provide the medical documents that supported his diagnosis of PTSD; however, no response was received. 4. The applicant enlisted in the Regular Army on 26 January 1989 and he held military occupational specialty 11M (Fighting Vehicle Infantryman). On 26 August 1990, he was assigned to Headquarters and Headquarters Company, 4th Battalion, 7th Infantry Regiment, Germany. 5. He served in Southwest Asia in support of Operation Desert Shield/Storm with his assigned unit from 26 December 1990 to 1 May 1991. 6. Between 12 June 1991 and 27 January 1992, he was frequently counseled by various members of his chain of command for: * displaying a bad attitude and lack of motivation * failing to follow instructions * failing to obey lawful orders * being disrespectful toward his supervisors * writing bad checks * repeatedly missing formation * repeatedly being late to formation * failing to report to his appointed place of duty at the prescribed time * reporting to duty in an improper uniform 7. He received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows: * on 27 January 1992, for failing to obey a lawful order * on 6 March 1992, for leaving his place of duty without proper authority 8. On 6 March 1992, he underwent a mental health evaluation. The DA Form 3822 (Report of Mental Status Evaluation), dated 6 March 1992, shows the examining physician found that his behavior was normal, he was fully alert and oriented, his thinking process was clear, and his thought content was normal. He had the mental capacity to understand and participate in discharge proceedings. 9. On 27 April 1992, his immediate commander notified him that he was initiating separation action against him under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12b, for a pattern of misconduct. The commander stated the basis for his recommendation was the Article 15s he received, the counseling for missing duty and formations, disobeying orders, being disrespectful, his poor attitude, and poor performance. The commander also stated he was recommending the applicant receive a general discharge. 10. On 27 April 1992, he consulted with legal counsel and was advised of the basis for the discharge action initiated against him for a pattern of misconduct, the type of discharge he could receive, the procedures and rights available to him, and the effect of waiving his rights. He acknowledged he understood if he were issued a general discharge he could expect to encounter prejudice in civilian life. He further acknowledged he understood if he were issued an under other than honorable conditions discharge he could be ineligible for many or all benefits as a veteran under both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life. He declined to submit a statement in his own behalf. 11. On 27 April 1992, his senior commander recommended approval of the separation action with the issuance of a general discharge. 12. On 28 April 1992, the separation authority approved the applicant’s discharge and directed the issuance of a general discharge. On 12 May 1992, he was discharged accordingly. 13. The DD Form 214 he was issued shows he was discharged under the provisions of AR 635-200, paragraph 14-12b, for misconduct - a pattern of misconduct, with an under honorable conditions (general) characterization of service. 14. His available record is void of evidence that shows he was treated for or diagnosed with PTSD while serving on active duty. 15. 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. 16. On 26 January 2012, the ABCMR denied his request for an upgrade of his discharge and determined his discharge was both proper and equitable. 17. The applicant provides a: a. VA Rating Decision, dated 11 October 2013, stating his claim for service-connected disability was granted effective 16 October 2012 as follows: * PTSD with depressive disorder, not otherwise specified (NOS), evaluated at 70 percent (%) * degenerative arthritis, right acromial-clavicular joint, evaluated at 30% * tinnitus, evaluated at 10% b. VA letter, dated 3 April 2014, stating it was determined the applicant’s PTSD with depressive disorder (NOS) had not changed and his PTSD evaluation of 70% was continued. c. Letter from the SSA, dated 11 August 2015, stating he was entitled to monthly disability benefits starting in June 2014 and that they found he became disabled under their rules on 15 March 2013. This letter does not state what disabling condition(s) the applicant had. 18. In the processing of this case an advisory opinion was received on 5 August 2016 from the Chief, Behavioral Health (BH) Division, Office of The Surgeon General (OTSG). This advisory official stated: a. The applicant's commanding officer initiated action to separate him for patterns of misconduct based on two company grade Article 15s for being disrespectful and leaving his place of duty. His separation counseling packet consists of several statements for missing duty and formations, disobeying orders, being disrespectful, a poor attitude, and poor performance. b. Although the Board requested the applicant provide medical documentation in support of his claim, no response was forthcoming. Therefore, they did not have sufficient information on which to base an opinion in his case. 19. On 12 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 within the time allowed. REFERENCES: 1. AR 635-200 sets forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 14 in effect at the time dealt with separation for various types of misconduct. Paragraph 14-12b provided for the separation of a Soldier due to a pattern of misconduct. This included discreditable conduct and conduct prejudicial to good order and discipline including conduct in violation of the accepted standards of personal conduct found in the UCMJ, Army regulations, civil law, and time-honored customs and traditions of the Army. The issuance of an under other than honorable conditions discharge was normally considered appropriate for separations under the provisions of chapter 14. 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. 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 the standard criteria and common language for the classification of mental disorders. In 1980, the APA added PTSD to the third edition of the DSM-III nosologic classification scheme. Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice. From a 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 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 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. DISCUSSION: 1. The evidence of record confirms the applicant demonstrated he could not or would not meet the acceptable standards required of enlisted personnel as evidenced by the adverse counseling he received and the two Article 15s for failing to obey a lawful order and leaving his place of duty without proper authority. Accordingly, his immediate commander initiated separation action against him under the provisions of AR 635-200, paragraph 14-12b, for a pattern of misconduct. 2. His separation action 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 reasons for separation were appropriate considering all the facts of the case. 3. While he provides evidence that shows by 2013 he was receiving VA benefits for PTSD effective October 2012, this is over 20 years after his discharge. Regardless, his record is void of evidence that shows he was treated for or diagnosed with a mental condition/disorder while serving on active duty. The evidence of record clearly shows he was mentally competent at the time of discharge. 4. Based on his overall record, his service did not meet the criteria for an honorable 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) AR20150007714 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150007714 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2