BOARD DATE: 15 December 2016 DOCKET NUMBER: AR20150015747 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: 15 December 2016 DOCKET NUMBER: AR20150015747 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: 15 December 2016 DOCKET NUMBER: AR20150015747 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 that his under other than honorable conditions discharge be upgraded. 2. The applicant states he was suffering from post-traumatic stress disorder (PTSD) and didn't know it. He is currently receiving treatment for PTSD. 3. The applicant provides: * Air Force (AF) Form 565-4 (Clinical Record Cover Sheet), dated 22 October 1977 * Standard Form (SF) 603 (Health Record, Dental) * two SFs 600 (Health Record, Chronological Record of Medical Care) * Progress Notes, dated 9 November 2014, from Battle Creek Department of Veterans Affairs (VA) Medical Center (VAMC) * DD Form 214 (Report of Separation from Active Duty) with an effective date of 24 April 1979 * DD Form 214 with a separation date of 15 July 1983 * VA medical records from VAMC Battle Creek, MI 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. On 1 December 1976, the applicant enlisted in the Regular Army. 3. On 30 August 1977, he was assigned to the 1st Battalion, 333rd Field Artillery at Camp Pieri, Wiesbaden, Germany. 4. AF Form 565-4, dated 22 October 1977, from the U.S. Air Force Hospital, Wiesbaden, Germany, indicates oral surgery was performed on the applicant for broken teeth and some non-restorable teeth. The cause of the injury is shown as "Accidentally incurred, on 21 October 77, at 0130, at Kirchgasse, Wiesbaden, Germany, patient was involved in a fight. Off base, off duty." 5. On 1 January 1978, he was promoted to private first class/E-3. 6. On 20 October 1978, the applicant received non-judicial punishment (NJP) for being derelict in the performance of his duties. 7. On 19 December 1978, court-martial charges were preferred against the applicant for: * being absent without leave (AWOL) from 22 November 1978 until 4 December 1978 * stealing a butane lighter, two necklaces, two tie tacks, all of a value of $77.00 * stealing a Sansui amplifier, a Technics cassette deck and turntable, a Sony cassette deck, and a Sansui amplifier all of a value of about $1,207.00 * unlawfully striking a specialist four (SP4)/E-4 in the face and on the body with his closed fist * unlawfully entering the room of a staff sergeant (SSG)/E-6 with the intent to commit a criminal offense, larceny * unlawfully entering the room of a sergeant (SGT)/E-5 with the intent to commit a criminal offense, larceny * being disrespectful in language toward a sergeant first class (SFC)/E-7 8. On 30 January 1979, the applicant was arraigned and tried before a special court-martial. a. The applicant pled guilty to: * being AWOL from 22 November 1978 until 4 December 1978 * stealing a Butane lighter, two necklaces, two tie tacks, all of a value of $77.00 * unlawfully striking a SP4 in the face and on the body with his fist * unlawfully entering the room of a SSG with the intent to commit a criminal offense, larceny * being disrespectful in language toward a SFC b. The applicant pled not guilty to: * stealing a Sansui amplifier, a Technics cassette deck and turntable, a Sony cassette deck, and a Sansui amplifier all of a value of about $1,207.00 * unlawfully entering the room of a SGT with the intent to commit a criminal offense, larceny 9. On 2 February 1979, the court-martial proceedings were indefinitely recessed by the Military Judge. 10. On 27 March 1979, the applicant consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of chapter 10 of Army Regulation (AR) 635-200 (Enlisted Personnel Separations). He acknowledged he had been afforded the opportunity to speak with counsel prior to making this request. He acknowledged he understood the elements of the offense he was charged with and he was: * guilty of the offenses for which he was charged * making the request of his own free will * advised he may be furnished an Under Other Than Honorable Conditions Discharge Certificate * advised he could submit statements in his own behalf 11. In addition, the applicant was advised he could expect to encounter substantial prejudice in civilian life if he was issued an under other than other honorable conditions discharge and he: * would be deprived of many or all Army benefits * might be ineligible for many or all veteran's benefits * might be deprived of his rights and benefits as a veteran under both Federal and State laws 12. The applicant did not submit a statement in his own behalf. 13. The applicant's battery commander recommended disapproval of his request for discharge, noting the applicant was accused of numerous crimes including stealing from his fellow Soldiers and a crime of violence and should not be allowed to leave the Army without facing the charges in court. 14. The applicant's battalion commander strongly recommended disapproval of his request for discharge. The commander was convinced that it would be in the best interest of morale, discipline, and justice of the entire command to bring the applicant to trial by court-martial. 15. The applicant's brigade commander recommended disapproval of his request for discharge. 16. On 19 April 1979, the appropriate authority approved the applicant's request for discharge for the good of the service. He directed the applicant be reduced to the grade of private E-1 and furnished a discharge certificate under other than honorable conditions. 17. On 24 April 1979, the applicant was discharged under the provisions of chapter 10 of AR 635-200 due conduct triable by court-martial. He had completed 2 years, 4 months, and 6 days of net active service that was characterized as under other than honorable conditions. He had 18 days of time lost. 18. On 19 February 1981, the Army Discharge Review Board (ADRB) determined that the applicant had been properly discharged. The applicant's request for a change in the type and nature of his discharge was denied. The ADRB Case Report and Directive states the applicant was AWOL two times for a total of 18 days. 19. The applicant provided a DD Form 214 that shows he served in the United States Marine Corps from 15 February 1980 - 15 July 1983. His service was characterized as "general under honorable." 20. The applicant provided a medical record, progress notes, dated 9 November 2014, from the Battle Creek VAMC. a. The purpose of the visit was mental status examination and medication review/renewal. b. The veteran reported that he believed that he had PTSD because he was in the Army from 1978 to 1979 and was severely beaten by a gang (6 or 7 men) while walking downtown in Wiesbaden, Germany. He lost some teeth. He was taken to a military hospital unconscious and he woke up in the ambulance. Since then he has had nightmares about the beating and he feels overwhelmed in crowded settings. He has extreme anxiety and tends to look over his shoulder (hypervigilance) since the incident took place. c. The diagnosis was PTSD. 21. On 25 October 2016, an advisory opinion was received from the Army Review Boards Agency (ARBA) psychiatrist. The psychiatrist states in her opinion the applicant has a behavioral health condition (PTSD) which partially mitigates the misconduct leading to his discharge from the Army. a. The applicant contends he was assaulted by a gang of 5-6 men while he was walking in downtown Wiesbaden. He reported that the assault resulted in loss of consciousness for several minutes. It is his contention that his PTSD symptoms stem from this assault. A review of the military medical record indicates that the applicant was seen by the on-call oral surgeon on 21 October 1977 after being involved in a fight off base in Wiesbaden. b. A review of the VA medical documentation indicates that the applicant has been diagnosed with chronic PTSD, Mood Disorder, and Polysubstance Dependence to cocaine and alcohol. The traumatic incident identified as causing the PTSD is the previously mentioned assault upon the applicant. The VA notes indicated that the applicant endorses the following PTSD symptoms: nightmares about the beating, hypervigilance, poor sleep, difficulty dealing with crowds, and anger issues. c. PTSD is often associated with avoidant behaviors such as going AWOL. Based on the information available, there is likely a nexus between the applicant's PTSD and the two episodes of AWOL which occurred after his assault. PTSD, however, does not mitigate the misconduct of larceny, assault or disrespectfulness to a noncommissioned officer. REFERENCES: 1. AR 600-200 (Enlisted Personnel Management System), in effect at the time, prescribed policies, responsibilities, and procedures pertaining to career management of Army enlisted personnel. Paragraph 7-26 stated that upon determination by the general court-martial authority that an individual was to be discharged from the service under other than honorable conditions, the individual would be reduced to the lowest enlisted grade. Board action was not required. 2. AR 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who was charged with 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 or general discharge was authorized, an under than honorable conditions discharge was normally furnished an individual who was discharged for the good of the service. b. 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. c. 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 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." 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-V) 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; or (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; or (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; or (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); or (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; or (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 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. 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 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. 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 under other than honorable conditions 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 under other than honorable conditions. 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 ADRB Case Report and Directive states the applicant was AWOL two times for a total of 18 days. His DD Form 214 shows he had 18 days of time lost. The only period of AWOL shown in the record is from 22 November 1978 - 4 December 1978, a total of 13 days. A second period of AWOL is not shown in the record. 2. The applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations. 3. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case. The issuance of an under other than honorable conditions discharge was normally considered appropriate when a member was separated under the provisions of chapter 10. There is no evidence of procedural or other errors that would have jeopardized his rights. 4. When the separation authority determined a Soldier was to be discharged from the service under other than honorable conditions, he or she was reduced to the lowest enlisted grade. The applicant's reduction to private was based solely on his being approved for an under other than honorable conditions discharge. 5. At the time of the applicant's discharge, PTSD was largely unrecognized by the medical community and DOD. However, both the medical community and DOD now have a more thorough understanding of PTSD and its potential to serve as a causative factor in a Soldier's misconduct when the condition is not diagnosed and treated in a timely fashion. 6. Research has also shown that misconduct stemming from PTSD is typically based upon a spur of the moment decision resulting from a temporary lapse in judgment. PTSD is not a likely cause for either premeditated misconduct or misconduct that continues for an extended period of time. 7. The ARBA psychiatrist stated there is likely a nexus between the applicant's PTSD and the two episodes of AWOL which occurred after his assault. PTSD, however, does not mitigate the misconduct of larceny, assault, or disrespectfulness to a noncommissioned officer. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015747 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015747 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2