IN THE CASE OF: BOARD DATE: 23 March 2017 DOCKET NUMBER: AR20150016846 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: 23 March 2017 DOCKET NUMBER: AR20150016846 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: 23 March 2017 DOCKET NUMBER: AR20150016846 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 his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge. He later submitted a supplemental request to have his UOTHC discharge be upgraded to a medical discharge due to post-traumatic stress disorder (PTSD). 2. The applicant defers the initial statements to counsel. In his supplemental request he states, in effect, that: * his discharge should be a medical discharge as initially approved by a medical review board for injuries he sustained during his military service * as documented, he made some really bad decisions, one of which was self-medicating after his traumatic life events * shortly after arriving in Germany, he started experiencing severe back pain, which caused his chain of command hardship since he was placed on a permanent profile (P3) * in light of the 2014 Secretary of Defense Memorandum, he requests a review of his discharge due to PTSD that went untreated due to the lack of support from his chain of command 3. The applicant provides an initial packet rendered by his counsel (as mentioned below). In conjunction with his supplemental request, he provides the Secretary of Defense Memorandum on consideration of discharge upgrade requests by veterans claiming PTSD, multiple excerpts of articles on PTSD from websites, and an award he received as a Department of the Navy civilian employee. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests, in effect, that the applicant's UOTHC discharge be upgraded to an honorable discharge under medical conditions. 2. Counsel states: a. In the interest of justice, the applicant should be granted an upgrade of his discharge. The applicant takes full responsibility for his actions and consequences. b. During basic training, the applicant suffered from severe back pain. However, he thought it was a muscle pull and continued to train. He was selected to participate in the Expert Driving Program, which caused him additional extreme back pain. Upon his arrival for duty in Germany, he continued to suffer from back pain. On or about 26 March 1989, he had surgery for a ruptured vertebrae; unfortunately, the surgery did not help relieve his back pain. c. On or about 2 August 1989, he was recommended to be placed on the Temporary Disabled Retired List (TDRL). The paperwork was delayed and the message approving his medical separation was not sent until on or about October 1989. d. During that time, his chain of command did not believe he was severely injured and they constantly verbally harassed him. Additionally, he began to have marital problems; his wife would contact his chain of command and complain about him. This forced the chain of command to restrict him to the barracks. He sought the help of a chaplain and the community marriage counselor but his wife refused to participate in counseling. According to the applicant, he had no support from his chain of command or the support system; therefore, the combination of marital problems, health issues, and the lack of support from the Army played a major role in his personal conduct. He thought he could deal with them on his own; however, he acknowledges he was wrong. Eventually, he and his wife divorced in May 1992. e. On or about 19 July 1989, the applicant went absent without leave (AWOL). On or about 21 July 1989, he was charged with operating a vehicle while drunk (while in Germany). He was not charged with the offense alleged by the German legal system. He was referred for alcohol abuse after receiving an Article 15; however, his commander and counselor were not able to agree on the proper treatment. Consequently, he was never scheduled to attend counseling. f. The applicant admits to some of the court-martial charges preferred against him but stated some of his prescribed medication for his back pain caused a positive reading on his drug tests. He received a letter indicating he tested positive on a urine analysis; he was instructed that a medical review officer would determine if a medical explanation existed for the results. g. The applicant's request for an under other than honorable discharge was submitted under the guidance and advice of the Judge Advocate General, which advised him if he was found guilty [by court-martial], he could possibly serve 28 years in prison. Reluctantly, he chose to submit his discharge packet. h. The applicant contends he was in his early twenties and has grown and matured significantly since that time. It is inequitable for his youthful mistakes to continue to negatively impact his present and future opportunities. For the past 23 years, he has been working for the Department of Defense (DoD) as a management analyst, holds a security clearance, and strives to make positive changes. His children currently serve in the military, he has remarried his ex-wife, and he has several letters of recommendation that attest to his reliability, trustworthiness, and good judgement. i. The applicant understands that his actions as a young man had severe consequences; he was just too naïve and immature to seek professional help. He has an outstanding record and his discharge blemishes his record and is inequitable. An upgrade to an honorable discharge would alleviate any stigma and blemishes that come with his under other than honorable conditions discharge. He has shown remorse for his actions and does not want his past mistakes to continue to limit his future work. 3. Counsel provides numerous documents organized as follows: * Exhibit A – the applicant's submitted DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1551), dated 5 May 2014 * Exhibit B – the applicant's submitted DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 5 May 2014 * Exhibit C – the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 24 November 1989 * Exhibit D – counsel's 7-page statement in support of applicant's request * Exhibit E – a memorandum, dated 20 January 1989, subject: Memorandum of Achievement * Exhibit F – an extract memorandum, dated 3 November 1989, subject: Request for Discharge * Exhibit G – a two-page Medical Evaluation Board Summary, dated 2 August 1989 * Exhibit H – the applicant's DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 14 August 1989 * Exhibit I – a memorandum, dated 21 July 1989, subject: Physical Disability Processing * Exhibit J – a memorandum, dated 2 November 1989, subject: Prescribed Medication List * Exhibit K – a DD Form 458 (Charge Sheet), dated 16 October 1989 w/ DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 6 September 1989 * Exhibit L – an approval memorandum, dated 3 November 1989, subject: Request for Discharge for the Good of the Service * Exhibit M – a memorandum, dated 12 September 1989, subject: Urinalysis Test Results * Exhibit N – a memorandum, dated 3 November 1989, subject: Bar from USAREUR (U.S. Army Europe) Installations * Exhibit O – a letter from F.P.H., general attorney advisor, undated * Exhibit P – a letter from a Dr. O.W., Attorney at Law, dated 26 July 1989 * Exhibit Q – 15 letters of support/character reference letters, all dated between 12 and 14 March 2014 * Exhibit R – four letters of support, dated in 1989 and 1990 * Exhibit S – two training certificates * Exhibit T – Resume * Exhibit U – a Star and Stripes newspaper article titled "In Europe, top sergeant tells senior Army NCOs to roll up their sleeves," dated 5 March 2012 * Exhibit V – a document titled "New/Critical Evidence Supporting Review of Military Upgrade," author and date unknown 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 1 September 1988. He completed his initial entry training and was awarded military occupational specialty 88M (Motor Transport Operator). Following the completion of his initial entry training, he was assigned on or about 25 January 1989 to the 501st Transportation Company in the Federal Republic of Germany. 3. A DA Form 3647 (Inpatient Treatment Record Cover Sheet) with accompanying form, shows the applicant was admitted to the Army Medical Center, Landstuhl, Germany, and surgery was performed on 28 March 1989 for a herniated disc. It also shows he was released back to duty on 1 April 1989. 4. A DA Form 3349 (Physical Profile), dated 1 April 1989, shows he was given a temporary profile for lower extremities (T3) as a result of his medical condition of a herniated lumbar disc with the restriction of no Army Physical Fitness Test (APFT) and physical training at his own pace and distance. His profile expired on 1 July 1989. 5. DA Forms 4187 (Personnel Action), dated 19 and 21 July 1989 respectively, show the applicant was reported absent without leave (AWOL) on 19 July 1989 and was reported present for duty on 21 July 1989. 6. The applicant provides the following documents: a. Optional Form 275-111-77 (Medical Record Report) with the title of "Medical Evaluation Board (MEB) Summary," dated 2 August 1989 and authored by Dr. J.D.W. of the neurosurgery service. It states the following: (1) The applicant's chief complaint was low back and right leg pain after he injured his back in January 1989 during initial entry training. He began having back and right leg pain subsequent to that injury. He was evaluated by the neurosurgery clinic in early March 1989, at which time he was diagnosed with a herniated disc on the right. (2) The patient was seen by both psychiatry and physical therapy. It is noted that this patient has some difficulties with chronic depression particularly as related to his pain. Physical therapy has recommended on-going low back exercises and treatments as needed. (3) After surgery and upon repeated examination, the patient elected to proceed with an MEB. His condition is stable but he is not capable of repetitive bending, stooping, lifting, or prolonged sitting or standing based on his condition. (4) Recommendation: It is felt that the patient has received maximum medical benefit from treatment at this time and further treatment would not likely benefit his condition. A further operation is not recommended and epidural lumbar steroid injections were considered; however, were refused by the patient. It is felt that in view of the above diagnosis and continuing discomfort, the patient is medically unfit for continued active duty in the military and therefore, he should be evaluated by the PEB (Physical Evaluation Board). b. A DA Form 199, dated 14 August 1989, shows a PEB was convened on 10 August 1989 at Fort Gordon, GA and found the applicant's medical condition prevented him from adequately performing the duties of his grade and primary specialty. The PEB found him physically unfit and recommended he receive a 40 percent (%) disability rating with placement on the TDRL, with reexamination in February 1991 based on his intervertebral disc with persisting low back pain and loss of lumbar motion. (Note: The DA Form 199 provided has no signatures or dates by the applicant or the approval authority). 7. Orders D172-17, issued by U.S. Total Army Personnel Command, Alexandria, VA on 6 September 1989, relieved him from duty because of physical disability incurred under conditions permitting placement of the TDRL, with an effective date of retirement of 14 November 1989. 8. Standard Form 513 (Medical Record – Consultation Sheet), dated 8 September 1989, shows the applicant was referred to the Psychiatry Clinic for the possible diagnosis of anorexia nervosa [a serious, potentially life-threatening eating disorder characterized by self-starvation and excessive weight loss] due to extreme loss of weight over the past 3-5 months. The medical professional determined he did not appear to have anorexia nervosa. 9. The applicant provides a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), which shows he accepted non-judicial punishment (NJP) on 6 September 1989, for being AWOL from on or about 19 July 1989 to on or about 21 July 1989. 10. A DD Form 458 (Charge Sheet), dated 16 October 1989, shows court-martial charges were preferred against him for the following charges: a. Charge I, in violation of Article 86 of the UCMJ, being AWOL from on or about 19 July 1989 to on or about 21 July 1989. b. Charge II, in violation of Article 111 of the UCMJ, operating a vehicle while drunk in the Federal Republic of Germany, on or about 21 July 1989. c. Charge III, in violation of Article 112a of the UCMJ, eight specifications in which: (1) At an unknown location, between on or about 10 June 1989 and 11 July 1989, he wrongfully used hashish, a controlled substance, the use of which was detected by biochemical testing of a urine sample submitted on 11 July 1989. (2) At an unknown location, between on or about 10 June 1989 and 11 July 1989, he wrongfully used amphetamines, a controlled substance, the use of which was detected by biochemical testing of a urine sample submitted on 11 July 1989. (3) At an unknown location, between on or about 4 July 1989 and 11 July 1989, he wrongfully used cocaine, a controlled substance, the use of which was detected by biochemical testing of a urine sample submitted on 11 July 1989. (4) At an unknown location, between on or about 20 July 1989 and 21 August 1989, he wrongfully used hashish, a controlled substance, the use of which was detected by a urine sample submitted on 21 August 1989. (5) At an unknown location, between on or about 13 August 1989 and 21 August 1989, he wrongfully used cocaine, a controlled substance, the use of which was detected by a urine sample submitted on 21 August 1989. (6) At an unknown location, between on or about 20 July 1989 and 21 August 1989, he wrongfully used amphetamines, a controlled substance, the use of which was detected by a urine sample submitted on 21 August 1989. (7) At an unknown location, between on or about 18 August 1989 and 19 September 1989, he wrongfully used hashish, a controlled substance, the use of which was detected by a urine sample submitted on 19 September 1989. (8) At Kleber Kaserne, Kaiserslautern, Federal Republic of Germany, on or about 19 September 1989, he wrongfully possessed 1.5 grams of hashish, a controlled substance. 11. His immediate commander forwarded the court-martial charges to higher headquarters on 16 October 1989, and recommended a special court-martial empowered to adjudge a bad conduct discharge. On the same date, his intermediate commander, concurred with the immediate commander's recommendation. 12. The charges were forwarded to the court-martial convening authority on 19 October 1989, with the recommendation to convene a special court-martial to adjudge a bad conduct discharge. 13. The applicant consulted with legal counsel on 2 November 1989, and subsequent to that meeting, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial. 14. In doing so, the applicant acknowledged that the charges preferred against him under the UCMJ authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged: * he had not been subjected to coercion with respect to his request for discharge * he had been advised of the implications that were attached to it * by submitting the request, he was acknowledging he was guilty of the charge(s) against him or of (a) lesser included offense(s) therein contained which also authorized imposition of a bad conduct or dishonorable discharge * he could be discharged under other than honorable conditions and he could be ineligible for many or all benefits administered by the Veterans Administration (VA) * he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits as a veteran under both Federal and State laws * he could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge 15. The applicant was advised that he could request a physical examination prior to discharge and submit any statements he desired in his own behalf; however, no options were selected. 16. The separation authority approved the applicant's request for discharge on 3 November 1989. He directed the applicant’s reduction to the lowest enlisted grade and that he be issued an UOTHC Discharge Certificate. 17. The applicant was discharged on 24 November 1989, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service-in lieu of trial by court-martial. His DD Form 214 confirms he was discharged in the rank/grade of private/E-1 and his service was characterized as under other than honorable conditions. 18. The applicant's military records are void of any available documentation that shows he suffered from, sought medical treatment for, or was diagnosed with PTSD or any other mental health/behavioral health condition during his period of active military service. 19. The applicant's DA Form 199 (Revised PEB Proceedings), dated 10 April 1991, shows the following: The U.S. Army Physical Disability Agency [USAPDA] has modified your rating and disposition. Based on a detailed review of the evidence of your record, this Agency concludes that you were not eligible for processing under the Army disability system. Therefore, this Agency voids the PEB proceedings that were erroneously approved on 21 August 1989. Our records indicate your military service was not ended because of medical reasons. Your service was ended by administrative/judicial action. You were, therefore, not eligible for disability processing under paragraphs 4-1, 4-2, or 4-3 of Army Regulation 635-40 [Physical Evaluation for Retention, Retirement, or Separation]. 20. An accompanying memorandum issued by the USAPDA, dated 28 May 1991, noted that after attempts to notify the applicant of the decision, the findings of the new DA Form 199, dated 10 April 1991, were approved by the Secretary of the Army and he would be issued orders removing him from the TDRL. 21. Orders D108-26, issued by U.S. Total Army Personnel Command, Alexandria, VA on 5 June 1991, removed him from the TDRL. 22. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. On 12 March 1993, the ADRB determined that his discharge was both proper and equitable and denied his request for an upgrade. Subsequently, he applied to the ABCMR for an upgrade of his discharge to honorable, by reason of medical disability. On 28 May 1993, the ABCMR informed him that his request was denied. 23. In connection with the processing of this case, an advisory opinion was obtained on 12 January 2017 from an Army Review Board Agency (ARBA) Clinical Psychologist. The advisory opinion states: a. The applicant was in the Army on active duty from 1 September 1988 to 24 November 1989. He was discharged under other than honorable conditions with his agreement to escape a court-martial arising [primarily] from drug possession charges. His drug involvement, a driving while drunk charge in Germany, and 8 specifications of use and possession hashish, cocaine, and amphetamines. He also is on record as having admitted to purchasing and using hashish in June 1989. b. The applicant links his drug use to back injury he had that, if not for his accepting the discharge to escape court-martial, would have led to a medical discharge. In the current application, the applicant raised two mental-health issues. First, he was drug addicted. Second, he has PTSD and was using drugs to reduce his symptoms. Third, his back injury was causing him to use drugs to manage his pain. It appears reasonable to conclude that he had a substance use diagnosis, almost certainly "abuse," and possibly for "dependence." This diagnosis does not mitigate his misconduct, including his drug use. Second, there is no evidence supportive of a PTSD diagnosis at the time of his service. He had heavy medical contact as a result of his back injury; however, none of the notes suggested a pattern of symptoms consistent with him having PTSD (emphasis added). The applicant has also produced no evidence that a licensed professional has diagnosed him with PTSD. c. He did have a marital problem when in Germany, but that is not mitigating of his drug-related misconduct. Third, he may have viewed himself as using drugs to control his pain; however, he was having regular medical care for his back problem. If anything, his abusing drugs would have complicated his recovery. He had ample opportunity to obtain apt medical assistance from his treatment team. d. The applicant's medical records do not at the time of his discharge reasonably support him having had a boardable mental-health condition for that period and he met military retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness) and the provisions set forth in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to his era of service. e. The applicant's medical conditions were not shown to have been ignored at the time of his discharge. A review of available documentation did not find evidence of a mental health condition or conditions supportive of a change to the character of the discharge in this case. A nexus between the applicant's misconduct and a mental-health condition was not discovered (emphasis added). 24. The applicant, though his counsel, was provided a copy of the advisory opinion and responded on or about 13 February 2017. He provides an eight-page self-authored statement, a statement from the doctor that performed his back surgery, the Secretary of Defense Memorandum, dated 3 September 2014, an article extract from the VA, National Center for PTSD website, and 17 character references. a. His self-authored statement describes how he was injured, his disagreement over the advisory opinion, his coping mechanism of drugs and alcohol to alleviate his back pain, and his years of contributions working for the Department of Defense since his discharge. (1) He suffered from back pain during his initial training and it was not until his first duty station (Germany) that it was determined the cause of his back pain was a ruptured vertebra and herniated disc. On or about 26 March 1989, he had surgery; however, it did not provide much pain relief and the medication he was prescribed only provided minimal relief. (2) He was only 20 years old and never experienced pain of that type before and did make some bad decisions. On 2 August 1989, he was recommended to be placed on the TDRL. However, a two-month delay in processing the paper work resulted and his chain of command did not support the TDRL and stated to harass him. This devastated him and further depressed his state of mind. At the same time, his marriage was falling apart. He sought help and marital counseling, however, his wife refused to participate. This further his stress. He then turned to drugs and alcohol to avoid reality. (3) He takes exception to the advisory opinions use of the word "escape" when he agreed to an UOTHC discharge instead of a court-martial; stating he was advised and received guidance from his counsel at the time. Additionally, he states his "drug addiction" is completely inaccurate. Since he experience a traumatic experience, battling mental health issues due to chronic depression and severe anxiety. He self-medicated and taking drugs was his way of coping. (4) He states his was not evaluated by a medical reviewing officer after a positive drug test nor was given an opportunity to seek help through a drug abuse program. (5) He understands that drug use is illegal and considered misconduct; however, his life altering factors explain why his behavior was occurring and he was not in the right state of mind to make smart decisions. (6) He states PTSD was not recognized as a diagnosis, but has done research and since the new guidance from the Secretary of Defense was issued, believes it applies in his case. (7) He states he was able to get in touch with the doctor that performed his back surgery and to review his medical records during that time and help provide a rebuttal to the advisory (discussed below). The applicant states this doctor was in the best position to understand the trials and tribulations and his mental state of mind to properly evaluate him. (8) He states he has worked hard to mitigate his past discrepancies and has been a model citizen. Since leaving the military he has worked for the past 25 years with the Department of Defense and has received many special act awards and ribbons for outstanding contributions in support of the Navy. He also submits numerous character reference statements from senior leaders as evidence of his effectiveness and work ethic. b. A letter from a Dr. J.D.W., dated 19 February 2017, who was the applicant's neurosurgeon that performed his surgery for a herniated lumbar disc. He states it is his opinion that the applicant suffered from severe anxiety and depression during the period in question. The reasons for this condition include ongoing pain, inability to perform his expected military duty and marital discord. It is also his opinion that this condition contributed significantly to the drug and alcohol offenses culminating in his type of discharge. He further notes: * he performed the surgery on 28 March 1989 of which led to ongoing anxiety and depression * he was unable to return to full duty and a MEB was conducted on 2 August 1989 recommending medical separation * psychiatry consultation at the time noted chronic depression * in September 1989, he was seen at his local medical clinic with signs of severe anxiety including a 40 pound weight loss * the diagnosis of anorexia nervosa was considered and psychiatry consult advised; however, no record exist of that psychiatry evaluation * on 20 October 1989, he was seen by the psychiatry clinic with increased anxiety related to the apparent loss of his medical separation paperwork * he believes the mental health considerations are sufficient to change the character of the discharge * he has led a productive and responsible life subsequent to his discharge as attested by his character references; indicating how atypical his behavior was in 1989 c. A Secretary of Defense Memorandum, subject: Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post-Traumatic Stress Disorder, dated 3 September 2014. This memorandum provides guidance for military boards 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. d. An article extract on PTSD from the VA, National Center for PTSD website, printed on 11 February 2017. This article discusses some symptoms and the overuse of substances (e.g., drugs and alcohol) that can occur in Veterans. e. He provides 17 character references statements, from Department of Navy employees, with various dates, each attesting to his professionalism, work ethic, and dedication to Naval Support functions. 25. Additionally, he provides numerous PTSD article excerpts that discuss signs, symptoms and factors of PTSD and treatments. He also provides his personal resume and several certificates and awards he has received as a result of his employment with the Department of the Navy. REFERENCES: 1. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. It is not an investigative agency. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides an honorable discharge is given when the quality of the Soldier's service has generally met standards of acceptable conduct and duty performance. b. Paragraph 3-7b states 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 provides that a member who has 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 at any time after court-martial charges have been preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the Service. An under conditions other than honorable characterization of service required reduction to the lowest enlisted grade. 3. Army Regulation 635-40 establishes the Army physical disability evaluation system and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. a. Paragraph 3-1 provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating. The Army must find that a service member is physically unfit to reasonably perform their duties and assign an appropriate disability rating before they can be medically retired or separated. b. Paragraph 3-5 provides that there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. c. Paragraph 4-1-3 states a member who is under investigation for or charged with an offense for which he could be dismissed or given a punitive discharge may not be referred for disability processing. It also states an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions (emphasis added). 4. 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." 5. 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. 6. 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. 7. 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 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. 8. 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 (emphasis added). 9. 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? 10. 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 applicant's request for an upgrade of his UOTHC discharge, to an honorable discharge under medical conditions due to PTSD, was carefully considered. 2. The applicant contends he has PTSD that resulted from military service, during which time he was emotionally harassed and not supported by his chain of command, suffered from severe back pain, and had marital problems. He further contends he talked to a chaplain, sought marital counseling, and other community services but received no help or assistance. Notwithstanding the applicant's sincerity, the available records contain no evidence corroborating his claim that he was harassed by his chain of command or that shows he sought or was denied assistance from his command or any other agencies. 3. There is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial and credible evidence to support a claim. In this case, the applicant has provided no information that would indicate the contrary. 4. The applicant contends he should have been medically retired since he was initially approved by a PEB. The available evidence shows he was processed through medical channels and was found physically unfit. He was recommended to receive a 40% disability rating with placement on the TDRL based on his intervertebral disc with persisting low back pain and loss of lumbar motion effective 14 November 1989. However, there is no mention or evidence that shows he was suffering from disabling PTSD or another mental health condition that rendered him unfit to perform his military duties during his period of active duty service. 5. He contends he had traumatic experiences (his back surgery and marital discord), and he was suffering mental health issues that resulted in chronic depression and severe anxiety; therefore, he self-medicated and used drugs as his way of coping since his prescribed medication was not sufficient. 6. His decision to use controlled substances (hashish, cocaine, and amphetamines) on multiple occasions was serious misconduct. As a result, the available evidence shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. After consulting with legal counsel, he voluntarily requested discharge from the Army in order to avoid a trial by court-martial. 7. His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable laws and regulations. There is no indication the request was made under coercion or duress. 8. The governing regulation states an enlisted Soldier may not be referred for, or continue, physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of UOTHC. His misconduct that included AWOL, driving while intoxicated, and eight specifications of drug use, occurred before the final disposition of his physical disability processing. 9. As a result of the separation authority's action, the USAPDA determined him ineligible for disability processing and voided his PEB processing as erroneous as his military service ended by an administrative/judicial action. Further, orders were issued removing him from the TDRL. 10. The applicant's military service was marked by a number of serious incidents involving misconduct. The medical advisory opinion opined that, after a review of the available documentation, there is no nexus between the applicant's misconduct and a mental-health condition. The advisory opinion noted no evidence that would support a change to the character of his service or reason of his discharge. 11. An honorable character of service is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel. An under honorable conditions character of service is appropriate for those Soldiers whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge. The applicant's overall record of service did not support the issuance of a fully honorable discharge by the separation authority at the time and it does not support an upgrade of his discharge now. 12. The applicant’s post-service achievements and ability to overcome his discharge are commendable. Post-service achievements alone are not normally a basis for upgrading a characterization of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016846 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016846 19 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2