BOARD DATE: 25 October 2016 DOCKET NUMBER: AR20150012908 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 BOARD DATE: 25 October 2016 DOCKET NUMBER: AR20150012908 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. BOARD DATE: 25 October 2016 DOCKET NUMBER: AR20150012908 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 discharge (HD). 2. The applicant states he volunteered to enlist in the U.S. Army at the age of 18 while he was still in high school. His father had been a prisoner of war (POW) in Germany during World War II for 4 to 5 years. During his time in the service he was unable to follow commands and was often disciplined. While in high school he had problems learning grammar and following verbal instructions. He later learned that he was dyslexic. He has been diagnosed with post-traumatic stress disorder (PTSD). His PTSD is largely a result of witnessing his father beat his mother. He was also beaten unconscious many times as a child by his father. He was hazed by his cadre to include being beaten, burned, and scarred with cigarettes. It was determined that he was incompatible with military service and he was discharged. His actions were the result of his disabilities. He is seeking an upgrade so that he can obtain medical services from the Department of Veterans Affairs. 3. The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States). 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 15 November 1968. 3. His DA Form 20 (Enlisted Qualification Record) shows he had lost time due to confinement for the following periods: * 5 January to 19 March 1969 (absent without leave (AWOL)) * 20 March to 21 June 1969 (confinement) * 3 June 1960 (AWOL) * 4 June to 18 July 1969 (confinement) 4. A Report of Psychiatric Evaluation, dated 28 April 1969, shows he was found to be mentally responsible, able to distinguish right from wrong and adhere to the right, and had the mental capacity to understand and participate in board proceedings. 5. Special Court-Martial Order Number 1043, issued by Headquarter, Special Troops, U.S. Army Armor Center, Fort Knox, Kentucky, dated 27 June 1969, shows he pled guilty and was found guilty of being absent without authority from his organization from on or about 5 January on or about 20 March 1969 and from on or about 3 June 1969 to 4 June 1969. 6. On 27 June 1969, he acknowledged receipt of the notification of separation action. He acknowledged the basis of the separation action and: * he waived consideration of his case by a board of officers * he elected not to submit a written statement in his own behalf * he waived appointment of military counsel to represent him * he understood that, as a result of the issuance of a discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and state laws, and that he may expect to encounter substantial prejudice in civilian life 7. On 3 July 1969, his immediate commander recommended separation action against him under the provisions of Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion)) due to the following reasons: a. The applicant was found guilty by the U.S. District Court, Cleveland, Ohio of the charge of transporting a stolen car. He was sentenced to 3 years of probation, to begin upon release from military service. b. Since his enlistment in the U.S. Army, his records indicated he had two periods of AWOL and two periods of confinement, was once dropped from the rolls as a deserter, and had one special court-martial conviction. 8. On 10 July 1969, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-206, due to civil conviction, and directed that the applicant be issued an Undesirable Discharge Certificate. 9. On 18 July 1969, he was discharged under the provisions of Army Regulation 635-206 due to a civil conviction with an Undesirable Discharge Certificate. He completed 1 month and 19 days of total active service and he had 195 days of lost time. 10. There is no indication in his records showing he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 11. In an advisory opinion, dated 31 August 2016, the Chief, Behavioral Health (BH) Division, Health Care Delivery, Medical Command, Office of The Surgeon General (OTSG), rendered an advisory opinion. The opinion stated in part: a. The applicant entered active duty on 15 November 1969. He was AWOL from 5 January to 20 March 1969 during which period he was convicted in a civil court of transporting a stolen car b. The applicant requested an upgrade of his characterization of service to honorable. The OTSG was asked to determine if there is a nexus between the applicant's behavioral health (BH) condition(s) and the misconduct that resulted in separation. The opinion was based solely on information provided by the Board, as Department of Defense (DOD) electronic medical record (Armed Forces Health Longitudinal Technology Application) was not yet in use during his term of service. b. In his application, the applicant asserts that, prior to service, he had PTSD caused by childhood physical abuse. He indicated it was determined he was incompatible with military service. Misconduct during his service included two periods of AWOL, two periods of confinement a special court-martial conviction and being dropped from the rolls as a deserter. He cited dyslexia as the reason he was unable to follow verbal instructions. On 28 April 1968, he was psychiatrically cleared for administrative separation without a diagnosis. c. On 6 April 2016, the Board requested medical documentation to support his claim of PTSD but none was forthcoming. There is no documentation showing the applicant met criteria for PTSD or any other BH at the time of separation. Nor are there records to indicate he was subsequently diagnosed with or treated for a BH condition. His psychiatric clearance for separation did not include a BH diagnosis and clearly stated he met retention standards. There is no indication in the research literature that dyslexia precludes understanding verbal commands. They did not find a nexus between a BH condition and the misconduct that resulted in his separation. 12. On 31 August 2016, the Case Management Division of the Army Review Boards Agency provided the applicant a copy of the advisory opinion for his review and comment. The applicant did not respond. REFERENCES: 1. Army Regulation 635-206, then in effect, established policy and prescribed procedures for the elimination of enlisted personnel for misconduct by reason of conviction by civil court. a. Section VI (Conviction by Civil Court) stated that an individual would be considered for discharge when the individual had been initially convicted by civil authorities, or action had been taken against the individual which was tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of 1 year. b. The discharge or recommendation for discharge would not be accomplished or submitted until the individual had indicated in writing that he did not intend to appeal the conviction, or until the time in which an appeal may be made had expired, whichever was earlier, or if the appeal had been made, until final action had been taken thereon. c. An individual discharged for conviction by a civil court normally would be furnished an Undesirable Discharge Certificate. 2. Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate. b. A general discharge was 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. 3. PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster. The DSM is published by the 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." 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-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. 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 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 (emphasis added). 7. 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. 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 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. 10. 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; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record; recommend a hearing when appropriate in the interest of justice; or deny applications when the alleged error or injustice is not adequately supported by the evidence and when a hearing is not deemed proper. 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. DISCUSSION: 1. The applicant contends his undesirable discharge should be upgraded because he was suffering from dyslexia and PTSD. He is seeking an upgrade so that he can obtain medical service from the Department of Veterans Affairs. 2. The ABCMR does not grant requests for discharge upgrades solely for the purpose of making an applicant eligible for veterans' benefits. Every case is individually decided based upon its merits when an applicant requests a change in his or her character of service. Additionally, granting veterans' benefits is not within the purview of the ABCMR. 3. OTSG rendered an advisory opinion in reference to the applicant's contentions. The opinion stated in part that the Board requested medical documentation to support his claim of PTSD but none was forthcoming. There was no documentation showing he met criteria for PTSD or any other BH at the time of separation, nor were there records to indicate he was subsequently diagnosed with or treated for a BH condition. His psychiatric clearance for separation did not include a BH diagnosis and clearly stated he met retention standards. There was no indication in the research literature that dyslexia precludes understanding verbal commands. They did not find a nexus between a BH condition and the misconduct that resulted in his separation 4. The available evidence of record shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time and the type of discharge directed and the reasons for separation were appropriate. The records contain no indication of procedural or other errors that would tend to jeopardize his rights. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012908 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012908 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2