SAMR-RB 9 August 2017 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for AR20150017645 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 11 July 2017, in which the Board members unanimously recommended denial of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant partial relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by issuing the applicant a new DD Form 214 showing his characterization of service as general under honorable conditions. 3. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading his character of service to fully honorable. 4. Request necessary administrative action be taken to effect the correction of records as indicated no later than 8 December 2017. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: Encl Jfhi114t · t.£t--- Deputy Assistant Secretary of the Army (Review Boards) CF: ( ) OMPF BOARD DATE: 11 July 2017 DOCKET NUMBER: AR20150017645 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: 11 July 2017 DOCKET NUMBER: AR20150017645 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: 11 July 2017 DOCKET NUMBER: AR20150017645 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 discharge under other than honorable conditions to honorable. 2.  The applicant states: a.  Throughout his enlisted career, he was a dedicated Soldier. b.  While he was on tour in South Korea, he received letters from his wife informing him that she was relinquishing custody of his children. His stepson was to go to his wife's mother and his daughter was turned over to the State of Pennsylvania. c.  When he returned to the States, he received a letter from Schuylkill County Children and Youth Services. The letter informed him that his 8-year old daughter had been raped while she was in foster care. d.  He went to his squad leader and he worked through his chain of command, seeking advice from the Judge Advocate General's (JAG) Office. He was escorted around by a sergeant first class and after months of nothing happening, he started having post-traumatic stress disorder (PTSD) symptoms. He had nightmares of his daughter being abused, his anxiety worsened, and his concentration was diminishing. e.  He foolishly took matters into his own hands and he left without permission. He was absent without leave (AWOL) in time of peace. He tried to gain custody of his daughter and he was denied. f.  Over the past 30 years, he has felt embarrassed, lonely, and depressed. First, for his failure as a protector of his child and second, as a heartbroken American Soldier. He loves his country and as a Soldier he excelled in performance. He was awarded the Army Commendation Medal when he was a private (E-1). g.  Rape is addressed differently today and he believes that his daughter's case should have been handled differently. He is an American, a father, and a Soldier. He wants to have the dignity to hold his head up as an honorable Soldier. 3.  The applicant provides: * memorandum for Secretaries of the Military Departments, dated 3 September 2014 * Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming PTSD * Army Review Boards Agency Congressional letter, dated 29 September 2015 (two copies) * U.S. Senate letter, dated 18 September 2015 * Release of Information, dated 15 September 2015 * letter to Senator Ayotte (Undated) * Schuylkill County Children and Youth Services letter, dated 26 October 1984 * Commonwealth of Pennsylvania Department of Public Welfare letter, dated 19 November 1984 * Pfeiffer, Brown, and Baldwin letter, dated 23 November 1984 * Schuylkill County Children and Youth Services letter, dated 16 June 1993 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 20 July 1982, the applicant enlisted in the Regular Army in pay grade E-1 for a term of 3 years. He completed training in air defense artillery-short range. He arrived in Korea on 7 December 1982. 3.  He accepted nonjudicial punishment (NJP) on 29 July 1983 for resisting apprehension by the military police and for failing to have a valid Armed Forces liberty pass in his possession while he was absent from the installation. 4.  He departed Korea en route to the United States on 2 December 1983 and he was attached to Fort Hood, Texas. 5.  The applicant was notified by letter from the Schuylkill County Children and Youth Services, dated 26 October 1984, that his daughter had been placed in one of their foster homes after they received voluntary custody from her mother. He was told the agency had received reports of suspected child abuse pertaining to his daughter (one physical and one sexual). He was provided releases of information for him to sign so the alleged abuse reports and placement information could be released to his attorney. 6.  On 9 November 1984, the applicant accepted NJP for wrongfully using some amount of marijuana between 30 September and 9 October 1984 at some location at or near Fort Hood, Texas. The punishment imposed was reduction to PV1 (E-1), forfeiture of $298.00 per month for 2 months, extra duty for 45 days, and restriction for 60 days. The applicant appealed and submitted the following additional matters: a.  In a self-authored statement, undated, he stated he felt the incident was not handled on an individual basis. He would like to present documents, counseling statements, and a handwritten statement on his behalf to explain his behavior and abilities as a Soldier. He would like to speak with his commander about financial and very personal affairs coming up shortly, which will affect his career and life. He felt the punishment was too harsh considering his circumstances. He would like to be treated fairly and equally. b. A DA Form 2823 (Sworn Statement), dated 9 November 1984, from Staff Sergeant D____ W. H____ stated the applicant was assigned as his driver from March to December 1984. He said the applicant had a drinking problem and that he referred himself to the Drug and Alcohol Program Phase I; however, after continuing to get into trouble and with two arrests by the military police, the applicant's command enrolled him in Phase II and then Phase III. In addition, the applicant was suspected of using drugs while stationed in Korea, but it was never proven. The applicant's NJP history involved alcohol-related incidents. He was a good Soldier while on duty, but he could never control his off-duty behavior. c. A sworn statement from Staff Sergeant J____ B. S____, the Drug and Alcohol Noncommissioned Officer for the applicant's unit in North Korea, dated 9 November 1984, stated the applicant was enrolled in the Drug and Alcohol Program for excessive drinking. During the time the applicant was in the program, he got into alcohol related trouble several times and was eventually given NJP. He said the applicant stated that his excessive drinking was due to his family problems. The applicant completed the Drug and Alcohol Program. d. A written statement from Sergeant First Class J____ A. B____, dated 14 November 1984, stated the applicant performed in a fine manner and his military bearing and appearance were outstanding. He praised the applicant's duty performance on the complicated M48 Chaparral missile system, which greatly enhanced the capabilities of his squad. The applicant always provided assistance to his squad leader and the platoon sergeant. Since the applicant's arrival at Fort Hood, TX, and assignment to his unit, the applicant's conduct on and off duty was exemplary. He planned to recommend the applicant for promotion in the near future. 7.   On 15 November 1984, the applicant's commander considered all of his additional matters and granted his appeal by remitting the punishment of forfeiture of $298.00 per month for 2 months and restriction for 45 days. Furthermore, the punishment of extra duty for 45 days was mitigated to extra duty for 30 days. 8.  In a letter, dated 19 November 1984, the applicant was notified by the Commonwealth of Pennsylvania Department of Public Welfare that a report of suspected abuse involving his daughter was investigated by the Schuylkill County Children and Youth Service Agency. It was determined she was abused. 9.   The applicant was notified by his attorney by letter, dated 23 November 1984, that the court approved the voluntary placement of his daughter in a foster home through Schuylkill County Children and Youth Services. His attorney stated he was present at the hearing and he informed the court that it was the applicant's intention to seek custody of his daughter at such time as he had accommodations for her. His attorney requested to be advised by the applicant when those circumstances occurred and stated no action needed to be taken in the meantime. 10.  The applicant was AWOL on 17 December 1984 and he remained absent until he surrendered to military authorities and returned to military control on 13 February 1985. 11.  The applicant's Official Military Personnel File contains a Personnel Control Facility Interview Sheet, dated 14 February 1985, explaining why he was AWOL. He stated he was AWOL because of personal problems. His problems had to do with his family life and he had let his chain of command know about the situation and nothing was done. He also said he talked to a chaplain prior to being AWOL. 12.  A DA Form 4384 (Commander's Report of Inquiry/Unauthorized absence) completed by his immediate commander shows in: * item 10 (Possible Contributing Factors Causing AWOL) – daughter in foster home * item 11 (Record of Any Evidence of the Following) – alcohol 13.  On 15 February 1985, the applicant was notified that charges were pending against him for being AWOL. He acknowledged receipt of the notification and consulted with legal counsel. He was advised of the basis for the contemplated trial by court-martial for offenses punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a request for discharge, and the procedures and rights available to him. Following consultation with counsel, he submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In his request for discharge, he acknowledged he understood the following: a. If his request for discharge were accepted, he could be issued a discharge under other than honorable conditions and he could be deprived of many or all Army benefits as a result of the issuance of such a discharge. b. He could be ineligible for many or all benefits administered by the Veterans Administration. c. He could be deprived of his rights and benefits as a veteran under both Federal and State laws. d. He could expect to encounter substantial prejudice in civilian life by reason of a discharge under other than honorable conditions. 14.  The separation authority approved his request for discharge on 1 March 1985 and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate. 15.  On 27 March 1985, the applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. He completed 2 years, 6 months, and 12 days of net active service. His service was characterized as under other than honorable conditions. 16.  On 8 July 1988, the applicant was advised that the Army Discharge Review Board denied his petition for an upgrade of his discharge and a change to his reason for discharge. 17.  A review of the available records failed to show the applicant was ever diagnosed with PTSD, either while he was in the Army or after his discharge. However, his records show he was dealing with alcohol-related issues and was enrolled in the Drug and Alcohol Program. 18.  In the processing of this case, a staff medical advisory opinion was obtained on 15 May 2017 wherein the psychiatrist stated: a. Based on the information available at this time, there is insufficient evidence to support the applicant's contention that his misconduct was due to PTSD. While the information submitted by the applicant clearly identifies that he met criterion A of the PTSD criteria listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM), fifth edition, there is no indication that any of the other PTSD diagnostic criteria were met. There is no documentation of any PTSD-related symptoms in the applicant's medical or military records. Additionally, the applicant has not provided medical documentation supporting a diagnosis of PTSD. Without appropriate medical documentation, a diagnosis cannot be determined. b. The exigent circumstances surrounding the applicant's AWOL need to be considered fully by the ABCMR. The lack of a diagnosis of PTSD notwithstanding, powerful psychological factors were at play in the applicant's misconduct. It is very likely the psychological stress of learning that his 8-year old daughter had been sexually and physically abused while in foster care caused the applicant to be AWOL impulsively in an effort to rescue his daughter. While an official diagnosis cannot be made because of a lack of medical documentation, it is more likely than not that the applicant was suffering from an unspecified trauma and stressor-related disorder during this trying period in his military career. 19. On 15 May 2017, a copy of the advisory opinion was sent to the applicant for his information and opportunity to respond. No response was received. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 states a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or a general discharge is authorized, a discharge under other than honorable conditions would normally be furnished to an individual who was discharged for the good of the service. b. Paragraph 3-7a states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. c. 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. 2. The DSM, chapter 7, addresses trauma and stress or related disorders. The DSM is published by the American Psychiatric Association (APA) and provides standard criteria and common language for classification of mental disorders. 3. In 1980, the APA added PTSD to the third edition of its DSM nosologic classification scheme. Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice. From a historical perspective, the significant change ushered in by the PTSD concept was the stipulation that the etiological agent was outside the individual (i.e., a traumatic event) rather than an inherent individual weakness (i.e., a traumatic neurosis). The key to understanding the scientific basis and clinical expression of PTSD is the concept of "trauma." 4. PTSD is unique among psychiatric diagnoses because of the great importance placed upon the etiological agent, the traumatic stressor. In fact, one cannot make a PTSD diagnosis unless the patient has actually met the "stressor criterion," which means that he or she has been exposed to an event that is considered traumatic. Clinical experience with the PTSD diagnosis has shown, however, that there are individual differences regarding the capacity to cope with catastrophic stress. Therefore, while most people exposed to traumatic events do not develop PTSD, others go on to develop the full-blown syndrome. Such observations have prompted the recognition that trauma, like pain, is not an external phenomenon that can be completely objectified. Like pain, the traumatic experience is filtered through cognitive and emotional processes before it can be appraised as an extreme threat. Because of individual differences in this appraisal process, different people appear to have different trauma thresholds, some more protected from and some more vulnerable to developing clinical symptoms after exposure to extremely stressful situations. 5. The fifth edition of the DSM 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 criterion 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); and (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, and (6) sleep disturbance. f. Criterion F – Duration: Persistence of symptoms (in Criteria B, C, D, and E) for more than 1 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 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 Soldiers' 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 a 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. On 3 September 2014 in view of the foregoing information, 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 applicants' 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 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 records 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. BCM/NRs 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. BCM/NRs 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 accepted NJP on 29 July 1983 for minor disciplinary infractions. Then on 9 November 1984, he also accepted NJP for wrongfully using marijuana. Shortly thereafter he was notified by civil authorities that his daughter was placed in a foster home by her mother. It is reasonable to presume that he was aware of and concerned about his child's safety prior to receiving that letter. He was told that an agency had received reports of suspected child abuse which were confirmed after an investigation. The notification letter is dated 19 November 1984. 2. On 23 November 1984, the applicant received confirmation from his lawyer that his daughter was placed in a foster home. He responded by stating it was his intent to seek custody of her. 3. On 17 December 1984, the applicant was AWOL, presumably to see and care for his daughter. It is understandable that he was under considerable duress at the time and was not thinking of the consequences of his actions. He ultimately did return to military control at which time he stated the reasons for his AWOL were related to his daughter and her safety. 4. The applicant voluntarily requested discharge in lieu of trial by court-martial for his AWOL offense. His request was subsequently approved and he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. There is no indication of procedural error in the processing of his voluntary request for discharge. 5. While the applicant did not provide medical evidence to support his claim that he has PTSD, the staff psychiatrist opined the applicant was probably suffering from anther behavioral disorder, unspecified trauma and stressor-related disorder, which could have impacted his decision to be AWOL. Thus it appears there is a nexus between his behavioral health and his conduct that led to his discharge under other than honorable conditions. 6. Under the 2014 DOD guidance, the Board may consider a discharge upgrade based on the mitigating evidence and medical opinion. As the applicant had a known history of alcohol-related incidents and punishment imposed under the Uniform Code of Military Justice, his conduct appears to diminish his service to less than fully honorable. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017645 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017645 13 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2