BOARD DATE: 18 May 2017 DOCKET NUMBER: AR20160001989 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: 18 May 2017 DOCKET NUMBER: AR20160001989 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: 18 May 2017 DOCKET NUMBER: AR20160001989 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. 2. The applicant states he was abused, depressed, young, and discriminated against. 3. The applicant provides: * Parkland Behavioral Health Center, Initial Evaluation Record, dated 16 March 2015 (9 pages) * Parkland Behavioral Health Center, Office Visit, dated 19 December 2016 (5 pages) 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 28 June 1976, the applicant, at age 18, enlisted in the Regular Army. He was assigned to Fort Bliss, Texas, for basic combat training. 3. On 19 August 1976, the applicant accepted non-judicial punishment (NJP) for being disrespectful in language toward a sergeant first class who was in his chain of command. 4. On 14 September 1976, the applicant accepted NJP for being absent without authority on 12 and 13 September 1976. 5. On 3 November 1976, the applicant completed advanced individual training as an Air Defense Artillery (ADA) Short Range Gunnery Crewman. He was subsequently placed on orders for duty in the Federal Republic of Germany (FRG). 6. On 3 December 1976, the applicant was assigned as an ADA crewman with Battery B, 1st Battalion, 59th ADA, located in the FRG. The applicant accepted NJP on: a. 7 July 1977, for assaulting a staff sergeant with a stick; b. 14 December 1977, for being disrespectful in language toward a commissioned officer and for willfully disobeying a lawful order from the same commissioned officer; and c. 17 February 1978, for two specifications of assaulting a corporal with a knife by cutting him on the nose and arm. 7. On 11 May 1978, the applicant’s commander recommended his separation from the service under the provisions of Army Regulation 635-200 (Personnel Separations), Chapter 14, for misconduct. 8. On 11 May 1978, the applicant was advised by legal counsel of the basis for his separation action, its effects, and of the rights available to him. He acknowledged this counseling and waived representation. He also waived a psychiatric examination, appearance before a board of officers, and elected not to submit a statement on his own behalf. 9. On 15 May 1978, the applicant underwent a mental examination wherein he was found to be fully alert and orientated. His mood was level, his thinking was clear, his thought content normal and memory were good. The applicant was mentally responsible. He was able to distinguish right from wrong and to adhere to the right. He had the capacity to understand and participate in board proceedings. He met the medical retention standards. 10. On 7 June 1978, the appropriate authority approved the recommendation for discharge and directed the applicant be issued a DD Form 794A (Under Other than Honorable Conditions Discharge Certificate). 11. Accordingly, on 3 July 1978, the applicant was discharged UOTHC. He completed 1 year, 11 months, and 9 days of creditable active duty service. 12. On 27 May 1986, the Army Discharge Review Board (ADRB) considered the applicant’s request for an upgrade of his discharge. The ADRB found his discharge to be proper and equitable and denied his request. 13. In the processing of this case, the following medical advisory opinion was obtained: a. Medical evidence provided by the applicant was considered. b. The applicant was discharged UOTHC because of a wide range of repeated instances of misconduct, including assault and larceny. c. The applicant contended that depression and discrimination led to his discharge. The applicant did not provide evidence from a licensed expert to support the existence of a psychiatric disorder at the time of discharge that would mitigate the range of his misconduct. His medical profile at the time of discharge indicates he did not have any medical conditions suggestive of a mitigating condition. d. The applicant’s service medical records do not reasonably support his having had a boardable medical condition. He met the medical retention standards. There is no supporting evidence showing he had a mitigating mental health condition. e. No nexus between the applicant’s misconduct and his mental health was discovered. 14. On 17 January 2017, a copy of the medical advisory opinion was sent to the applicant for his information and opportunity to respond. No response was received. REFERENCES: 1. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include a pattern of misconduct and commission of a serious offense. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. b. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. c. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 2. PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster. The Diagnostic and Statistical Manual of Mental Disorders (DSM) is published by the American Psychiatric Association (APA) and it provides standard criteria and common language for the classification of mental disorders. In 1980, the APA added PTSD to the third edition of its DSM-III nosologic classification scheme. Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice. From an historical perspective, the significant change ushered in by the PTSD concept was the stipulation that the etiological agent was outside the individual (i.e., a traumatic event) rather than an inherent individual weakness (i.e., a traumatic neurosis). The key to understanding the scientific basis and clinical expression of PTSD is the concept of "trauma." 3. PTSD is unique among psychiatric diagnoses because of the great importance placed upon the etiological agent, and the traumatic stressor. In fact, one cannot make a PTSD diagnosis unless the patient has actually met the "stressor criterion," which means that he or she has been exposed to an event that is considered traumatic. Clinical experience with the PTSD diagnosis has shown, however, that there are individual differences regarding the capacity to cope with catastrophic stress. Therefore, while most people exposed to traumatic events do not develop PTSD, others go on to develop the full-blown syndrome. Such observations have prompted the recognition that trauma, like pain, is not an external phenomenon that can be completely objectified. Like pain, the traumatic experience is filtered through cognitive and emotional processes before it can be appraised as an extreme threat. Because of individual differences in this appraisal process, different people appear to have different trauma thresholds, some more protected from and some more vulnerable to developing clinical symptoms after exposure to extremely stressful situations. 4. The DSM fifth revision (DSM-5) was released in May 2013. This revision includes changes to the diagnostic criteria for PTSD and acute stress disorder. The PTSD diagnostic criteria were revised to take into account things that have been learned from scientific research and clinical experience. The revised diagnostic criteria for PTSD include a history of exposure to a traumatic event that meets specific stipulations and symptoms from each of four symptom clusters: intrusion, avoidance, negative alterations in cognitions and mood, and alterations in arousal and reactivity. The sixth criterion concerns duration of symptoms; the seventh assesses functioning; and the eighth criterion clarifies symptoms as not attributable to a substance or co-occurring medical condition. a. Criterion A, stressor: The person was exposed to: death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence, as follows: (one required) (1) Direct exposure. (2) Witnessing, in person. (3) Indirectly, by learning that a close relative or close friend was exposed to trauma. If the event involved actual or threatened death, it must have been violent or accidental. (4) Repeated or extreme indirect exposure to aversive details of the event(s), usually in the course of professional duties (e.g., first responders, collecting body parts; professionals repeatedly exposed to details of child abuse). This does not include indirect non-professional exposure through electronic media, television, movies, or pictures. b. Criterion B, intrusion symptoms: The traumatic event is persistently re-experienced in the following way(s): (one required) (1) Recurrent, involuntary, and intrusive memories. (2) Traumatic nightmares. (3) Dissociative reactions (e.g., flashbacks) which may occur on a continuum from brief episodes to complete loss of consciousness. (4) Intense or prolonged distress after exposure to traumatic reminders. (5) Marked physiologic reactivity after exposure to trauma-related stimuli. c. Criterion C, avoidance: Persistent effortful avoidance of distressing trauma-related stimuli after the event: (one required) (1) Trauma-related thoughts or feelings. (2) Trauma-related external reminders (e.g., people, places, conversations, activities, objects, or situations). d. Criterion D, negative alterations in cognitions and mood: Negative alterations in cognitions and mood that began or worsened after the traumatic event: (two required) (1) Inability to recall key features of the traumatic event (usually dissociative amnesia; not due to head injury, alcohol, or drugs). (2) Persistent (and often distorted) negative beliefs and expectations about oneself or the world (e.g., "I am bad," "The world is completely dangerous"). (3) Persistent distorted blame of self or others for causing the traumatic event or for resulting consequences. (4) Persistent negative trauma-related emotions (e.g., fear, horror, anger, guilt, or shame). (5) Markedly diminished interest in (pre-traumatic) significant activities. Feeling alienated from others (e.g., detachment or estrangement). (6) Constricted affect: persistent inability to experience positive emotions. e. Criterion E, alterations in arousal and reactivity: Trauma-related alterations in arousal and reactivity that began or worsened after the traumatic event: (two required) (1) Irritable or aggressive behavior (2) Self-destructive or reckless behavior (3) Hypervigilance (4) Exaggerated startle response (5) Problems in concentration (6) Sleep disturbance f. Criterion F, duration: Persistence of symptoms (in Criteria B, C, D, and E) for more than one month. g. Criterion G, functional significance: Significant symptom-related distress or functional impairment (e.g., social, occupational). h. Criterion H, exclusion: Disturbance is not due to medication, substance use, or other illness. 5. As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis and treatment of PTSD the Department of Defense (DOD) acknowledges that some Soldiers who were administratively discharged 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. 6. In view of the foregoing, on 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 7. BCM/NRs are not courts, nor are they investigative agencies. Therefore, the determinations will be based upon a thorough review of the available military records and the evidence provided by each applicant on a case-by-case basis. When determining if PTSD was the causative factor for an applicant's misconduct and whether an upgrade is warranted, the following factors must be carefully considered: * Is it reasonable to determine that PTSD or PTSD-related conditions existed at the time of discharge? * Does the applicant's record contain documentation of the occurrence of a traumatic event during the period of service? * Does the applicant's military record contain documentation of a diagnosis of PTSD or PTSD-related symptoms? * Did the applicant provide documentation of a diagnosis of PTSD or PTSD-related symptoms rendered by a competent mental health professional representing a civilian healthcare provider? * Was the applicant's condition determined to have existed prior to military service? * Was the applicant's condition determined to be incurred during or aggravated by military service? * Do mitigating factors exist in the applicant's case? * Did the applicant have a history of misconduct prior to the occurrence of the traumatic event? * Was the applicant's misconduct premeditated? * How serious was the misconduct? 8. Although the DOD acknowledges that some Soldiers who were administratively discharged UOTHC may have had an undiagnosed condition of PTSD at the time of their discharge, it is presumed that they were properly discharged based upon the evidence that was available at the time. Conditions documented in the record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which PTSD or PTSD-related conditions may be reasonably determined to have existed at the time of discharge; those conditions will be considered potential mitigating factors in the misconduct that caused the UOTHC characterization of service. Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of UOTHC. Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. DISCUSSION: 1. The applicant contends that his UOTHC discharge should be upgraded because he was young at the time. He also states he was abused, depressed, and discriminated against. 2. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. 3. The advisory official in this case found that the applicant’s service medical records do not reasonably support his having had a boardable medical condition. The advisory official found he met medical retention standards, found no supporting evidence showing he had a mitigating mental health condition, and found no nexus between the applicant’s misconduct and his mental health . //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001989 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001989 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2