IN THE CASE OF: BOARD DATE: 20 September 2016 DOCKET NUMBER: AR20150008215 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: 20 September 2016 DOCKET NUMBER: AR20150008215 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: 20 September 2016 DOCKET NUMBER: AR20150008215 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 to an honorable discharge. He also indicates he wishes to appear before the Board. 2. The applicant states he was suffering from post-traumatic stress disorder (PTSD). Additionally, the unit commander and unit first sergeant were relieved from command. 3. The applicant provides a letter from the Department of Veterans Affairs (VA). 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. Having had prior service, the applicant enlisted in the Regular Army for a 3-year term on 17 September 1973 and held military occupational specialty 76X (Subsistence Storage Specialist). 3. He was assigned to Detachment C, 407th Supply and Service Battalion, 82nd Airborne Division, Fort Bragg, NC. He was advanced to specialist four/E-4 in January 1974. 4. On 18 February 1974, he departed his unit in an absent without leave (AWOL) status; however, he returned on 22 February 1974. He again departed AWOL on 25 February 1975 and ultimately returned to military control on 26 March 1975. 5. On 22 April 1975, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 18 to 22 February 1975 and from 25 February to 25 March 1974. His punishment consisted of a reduction to E-3, correctional custody facility for 30 days, and a forfeiture of pay. 6. On 15 July 1975, his commander initiated a Bar to Enlistment/Reenlistment Certificate against him citing his misconduct. The applicant was furnished with a copy of this bar but elected not to submit a statement in his own behalf. The bar was ultimately approved. 7. On 13 August 1975, he again accepted NJP under the provisions of Article 15 of the UCMJ for being disrespectful to a superior noncommissioned officer. 8. On 22 August 1975, the applicant underwent a mental status evaluation. The examiner did not find any significant mental illness and indicated the applicant met retention standards. 9. On 29 August 1975, the applicant’s immediate commander notified the applicant that he intended to recommend his discharge from the Army under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-37 (Expeditious Discharge Program (EDP)). He recommended a general discharge and cited the following specific reasons: * substandard performance of duty * failure to obey directives * inability to adjust to military lifestyle * non-desire to achieve and poor attitude 10. The applicant acknowledged notification of his proposed discharge from the Army. He consulted with legal counsel and he was advised of the basis for the contemplated separation from the Army, the effect on future enlistment in the Army, the possible effects of a general discharge, and of the procedures and rights that were available to him. * he voluntarily consented to this discharge * he acknowledged that he understood if he were issued a general discharge he could expect to encounter substantial prejudice in civilian life * he elected not to submit a statement in his own behalf 11. Following this acknowledgement, his immediate commander initiated separation action against him in accordance with paragraph 5-37 of AR 635-200. The intermediate commander recommended approval. 12. On 10 September 1975, subsequent to a legal review for legal sufficiency, the separation authority approved the applicant's discharge under the provisions of the Expeditious Discharge Program by reason of failure to meet acceptable standards for continued military service and directed that he receive a General Discharge Certificate. On 29 September 1975, the applicant was discharged accordingly. 13. His DD Form 214 (Report of Separation from Active Duty) confirms he was discharged under the provisions of AR 635-200, paragraph 5-37 with an under honorable conditions (general) character of service. He completed 1 year, 11 months, and 11 days of net active service during this period. He was also awarded or authorized the: * National Defense Service Medal * Vietnam Service Medal * Meritorious Unit Commendation * Parachutist Badge * Republic of Vietnam Gallantry Cross with Palm unit Citation * Presidential Unit Citation * Expert Marksmanship Qualification Badge with Rifle Bar * Expert Marksmanship Qualification Badge with Machine Gun Bar (M-60) * Expert Marksmanship Qualification Badge with Pistol Bar (M-45) * Good Conduct Medal * Combat Action Ribbon * Vietnam Campaign Medal 14. On 11 December 1987, the Army Discharge Review Board (ADRB) reviewed his discharge processing but found it proper and equitable. The ADRB denied his petition for an upgrade of his discharge. 15. The applicant provides a letter, dated 13 November 2015, wherein the VA certifies that he is rated at 50 percent for PTSD. 16. The Board forwarded his medical documents to the Office of The Surgeon General (OTSG) for review. An OTSG official rendered an advisory opinion on 10 August 2016 in the processing of this case. The official stated: a. The applicant entered active duty on 17 September 1973 and he was discharged under honorable conditions on 29 September 1975 in accordance with AR 635-200, chapter 5-37. He deployed to Vietnam from 2 August 1968 to 27 February 1969. The reasons for his separation were "substandard performance of duty, failure to obey directives, inability to adjust to the military life style, non-desire to achieve, and poor attitude." b. The applicant did not make a specific request to the Board. OTSG was asked to determine of the applicant's military separation was due to PTSD or any 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. The only supporting medical documentation provided by the applicant is a letter from the VA, dated 13 November 2015, confirming he is rated at 50 percent for PTSD. There is no evidence that he met the criteria for PTSD while in the service or that he failed to meet retention standards. OTSG medical officials are unable to determine if he is eligible for a discharge upgrade due to PTSD. 17. The applicant was provided with a copy of this advisory opinion to give him an opportunity to comment and/or submit a rebuttal but he did not respond. REFERENCES: 1. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. The pertinent paragraph in chapter 5 provided that members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential may be discharged under the EDP. a. It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary. No member would be discharged under this program unless he/she voluntarily consented to the proposed discharge. Issuance of an honorable discharge certificate was predicated upon proper military behavior and proficient performance of duty during the member's current enlistment with due consideration for the member's age, length of service, grade, and general aptitude. 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. 2. AR 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. 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 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." 4. 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. 5. 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) * Direct exposure * Witnessing, in person * 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 * 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) * Recurrent, involuntary, and intrusive memories * Traumatic nightmares * Dissociative reactions (e.g., flashbacks) which may occur on a continuum from brief episodes to complete loss of consciousness * Intense or prolonged distress after exposure to traumatic reminders * 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) * Trauma-related thoughts or feelings * 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) * Inability to recall key features of the traumatic event (usually dissociative amnesia; not due to head injury, alcohol, or drugs) * Persistent (and often distorted) negative beliefs and expectations about oneself or the world (e.g., "I am bad," "The world is completely dangerous") * Persistent distorted blame of self or others for causing the traumatic event or for resulting consequences * Persistent negative trauma-related emotions (e.g., fear, horror, anger, guilt, or shame) * Markedly diminished interest in (pre-traumatic) significant activities * Feeling alienated from others (e.g., detachment or estrangement) * 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) * Irritable or aggressive behavior * Self-destructive or reckless behavior * Hypervigilance * Exaggerated startle response * Problems in concentration * 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. 6. 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. 7. In view of the foregoing, on 3 September 2014 the Secretary of Defense directed the Service 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. 8. 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? 9. Although 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 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 evidence of record shows the applicant demonstrated that he could not or would not meet acceptable standards required of enlisted personnel in the Army. Accordingly, his immediate commander initiated separation action against him. He voluntarily consented to his discharge. 2. His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. The type of discharge directed and the reason for separation were appropriate considering all the facts of the case. 3. Based on his overall record, the applicant's service does not meet the standards of acceptable conduct of duty for Army personnel required for an honorable characterization of service. 4. The applicant provided a supporting medical document from the VA confirming he is rated at 50 percent for PTSD. However, there is no evidence that he met the criteria for PTSD while in the service or that he failed to meet retention standards. More importantly, there is no documentary evidence to support a relationship between his PTSD and the reason for his discharge. 5. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150008215 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150008215 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2