BOARD DATE: 30 June 2016 DOCKET NUMBER: AR20150008484 BOARD VOTE: ___x_____ ____x____ __x__ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 30 June 2016 DOCKET NUMBER: AR20150008484 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by issuing her a new DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows her service characterization as under honorable conditions (general). __________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. BOARD DATE: 30 June 2016 DOCKET NUMBER: AR20150008484 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 her discharge characterization from under other than honorable conditions to under honorable conditions (general). 2. The applicant states she went to the Department of Veteran Affairs (VA) for mental health purposes and was informed that she could get help with her DD Form 214 (Certificate of Release or Discharge from Active Duty). 3. The applicant provides: * DD Form 214 * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * multiple pages of VA progress notes, dated between October 2013 and June 2014 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 7 March 2000. 3. On 22 September 2000, court-martial charges were preferred against her for being absent without leave (AWOL) from on or about 22 June to on or about 14 September 2000. 4. On 22 September 2000, she consulted with counsel and was advised of the basis for her contemplated trial by court-martial and the maximum possible punishment authorized under the Uniform Code of Military Justice (UCMJ), of the possible effects of a punitive discharge, and of the rights available to her. After consulting with counsel, she voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. a. In her request for discharge, she indicated she understood that if her request for discharge was accepted, she could be discharged under other than honorable conditions and be furnished an Under Other Than Honorable Conditions (UOTHC) Discharge Certificate. b. She acknowledged she had been advised of the possible effects of a punitive discharge and she understood that she may be deprived of many or all Army benefits, that she may be ineligible for many or all benefits administered by the VA, and that she could be deprived of her rights and benefits as a veteran under both Federal and State laws. 5. On 13 December 2001, the separation authority approved the applicant's request for discharge and directed she be discharged UOTHC. 6. On 15 January 2002, she was discharged under the provisions of Army Regulation 635-200, chapter 10, by reason of conduct triable by court-martial. 7. On 1 December 2013, the applicant applied to the Army Discharge Review Board (ADRB) for a change to her narrative reason for discharge and an upgrade of her service characterization. 8. On 10 December 2014, the ADRB determined she was properly and equitably discharged. Accordingly, her request for a change in the character and/or reason for her discharge was denied. 9. There is no evidence in her available military record that shows she was sexually assaulted or that shows she was diagnosed with or treated for post-traumatic stress disorder (PTSD), PTSD-related symptoms, or any other mental health disorder while serving in the Army. 10. The applicant provides 41 pages of VA progress notes, dated between October 2013 and June 2014, which document her VA mental health appointments and treatment. These documents, in effect, describe the following details over the course of various sessions: a. Her advanced individual training (AIT) supervisors were non-responsive to her questions or concerns and often spoke down to her or treated her as a sexual object. Approximately 3 weeks after beginning AIT, she was raped by a military colleague. She had difficulty sharing this information with others and never told anyone in the military. b. She was diagnosed with PTSD and major depressive disorder, single episode. 11. In connection with the processing of this case, an advisory opinion was obtained from the Department of the Army, Office of the Surgeon General, Chief, Behavioral Health Division. The medical advisory opinion states: a. VA records indicate the applicant was raped by a fellow Soldier in June 2000 but did not report it. A progress note dated 19 December 2013 states: "In 2000 following her rape, she went AWOL and rented a hotel room. At that time she attempted to overdose by taking a lot of ibuprofen." b. In October 2013, the applicant presented herself at the VA hospital with suicidal ideation but was not eligible for services and was admitted to a non-VA hospital. She began outpatient behavioral health treatment at the VA in December 2013 and was diagnosed with PTSD related to military sexual trauma (MST) and major depressive disorder, single episode. She completed four sessions of prolonged exposure and five sessions of cognitive processing therapy. c. No behavioral health records are available from the applicant's active duty service nor is there documentation that confirms she was sexually assaulted during military service. Although this is not unusual, there is no information regarding the circumstances of her discharge or her level of functioning in the 18 months between the rape and her discharge. d. Although the VA's subsequent recognition of her PTSD related to MST lends support to her request, it is the only evidence available. The lack of information regarding the misconduct that led to her separation prevents us from determining if there was a nexus between the sexual assault and her misconduct. 12. A copy of the advisory opinion was forwarded to the applicant for information and to allow her the opportunity to submit comments or a rebuttal; however, she did not respond. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. b. 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. c. Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual’s admission of guilt. Although an honorable discharge or general discharge was authorized, a discharge of UOTHC was normally considered appropriate. 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's request for an upgrade of the character of service reflected on her DD Form 214 from UOTHC to under honorable conditions (general) was carefully considered. 2. The evidence of record shows she was AWOL while in a training status, which resulted in a significant amount of lost time. Accordingly, she 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. 3. Subsequent to her discharge, medical evidence shows she was diagnosed with PTSD-related symptoms by the VA's mental health professionals. Therefore, it is reasonable to believe her PTSD condition existed at the time of her discharge. 4. The evidence of record indicates traumatic incidents led to the applicant's AWOL and the resultant UOTHC discharge. Additionally, her record is void of any previous misconduct during this period of service and the misconduct of AWOL appears to have been the result of a lapse in judgment, which is characteristic of Soldiers suffering from PTSD-related symptoms. 5. Compassion may be warranted in this case if one accepts as true the applicant's claim of having been sexually assaulted. While her service was short, there is nothing to indicate she would have gone AWOL if she had not been the victim of such treatment. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150008484 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150008484 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2