BOARD DATE: 26 September 2017 DOCKET NUMBER: AR20160006794 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: 26 September 2017 DOCKET NUMBER: AR20160006794 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: 26 September 2017 DOCKET NUMBER: AR20160006794 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 honorable conditions (general) discharge be upgraded to honorable. 2. The applicant states: * he was suffering from post-traumatic stress disorder (PTSD) when he was transferred to Fort Hood, TX * Sergeant (SGT) JLB was stationed at Fort Hood, TX, too * SGT JLB broke a beer bottle in his room and started chanting "now I'm going to kill you" * SGT JLB started swinging the bottle at him in an attempt to cut him * he defended himself * his chain of command said that he over-defended himself and did not mention the broken bottle in the report * his chain of command threaten him with jail time if he did not accept the general, under honorable conditions discharge * he had planned to make the Army a career * in the 1970s the Army failed to recognize his symptoms of PTSD * the attached documents establish his treatment for PTSD * the Department of Veterans Affairs (VA) states his PTSD came from his service in the military 3. The applicant provides: * DD Form 214 (Report of Separation from Active Duty) * State of California Department of Corrections and Rehabilitation medical records * self-authored letter, dated 5 August 2015 * self-authored letter, dated 14 April 2016 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 (RA) on 30 April 1975. 3. On 22 September 1975, he was assigned to the Company A, 2nd Battalion, 9th Infantry Brigade, 2nd Infantry Division, in Korea. His record shows he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on: * 8 December 1975, absenting himself from his unit without authority * 23 December 1975, violating a lawful general regulation by having an unauthorized guest in the company barracks and possessing a straight razor * 8 January 1976, absenting himself from his unit without authority 4. Special Court-Martial Order 21, dated 25 August 1976, shows that charges were dismissed on 9 July 1976 against the applicant for being disorderly and refusing to leave the Pass and Identification Entrance to Camp Casey, Korea. 5. On 1 November 1976, he was assigned to Company B, 2nd Battalion, 7th Cavalry Regiment, 1st Cavalry Division, Fort Hood, TX. His record shows he accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ on: * 2 December 1976, willfully disobeying a superior commissioned officer and wrongfully possessing one gram, more or less of marijuana * 21 December 1976, violating a lawful general regulation by wrongfully possessing a straight edge razor * 23 February 1977, willfully disobeying a superior commissioned officer and wrongfully using provoking words * 7 April 1977, failing to go at the time prescribed to his appointed place of duty * 25 April 1977, wrongfully possessing two grams of marijuana and wrongfully violating a lawful general regulation by possessing two knives with blades exceeding four inches in length and disobeying a superior noncommissioned officer 6. On 11 March 1977, the applicant’s immediate commander notified him of his intent to initiate action to eliminate him from the Army under the provisions of chapter 13 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) because of unsuitability. Specifically, the immediate commander cited the applicant's apathy, defective attitudes, and/or inability to expand effort constructively. His supervisors wrote statements describing the applicant's excessive lack of cooperation, bad attitude, substandard duty performance, and inability to accept work and lack of respect towards superiors. They described their multiple failed efforts in counseling, coaching, and rehabilitating him. 7. A Mental Status Evaluation shows the applicant's behavior was normal, he was fully alert and oriented, level mood, thinking clearly, and his thought content was normal. He had no significant mental illness, was mentally responsible, and able to distinguish right from wrong. The applicant was able to adhere to the right and possessed the mental capacity to understand and participate in board proceedings. He met medical retention standards. 8. The applicant acknowledged receipt of the notification of pending separation action. He was advised by counsel of the basis for the contemplated action to separate him for unsuitability under the provisions of AR 635-200. He waived consideration of his case by a board of officers, personal appearance before a board of officers, and representation by counsel. He elected not to submit a statement on his own behalf. He further indicated that he understood that he might expect to encounter substantial prejudice in civilian life if he received a general, under honorable conditions discharge. 9. Subsequent to this acknowledgement, the applicant’s immediate commander initiated elimination action against him under the provisions of chapter 13 of AR 635-200 because of unsuitability. The commander stated that the applicant had received extensive counselling but failed to respond positively. He requested a waiver of any further rehabilitative efforts as he did not see any positive response. 10. His chain of command recommended approval of the discharge action. 11. On 27 April 1977, the separation authority approved the applicant's discharge under the provisions of chapter 13 of AR 635-200. He directed the issuance of a General Discharge Certificate. 12. Accordingly, the applicant was discharged on 23 May 1977. The DD Form 214 he was issued shows a character of service under honorable conditions (general). This form further shows he completed 2 years and 21 days of net active service and he had 3 days of lost time and 19 days in an excess leave status. 13. In support of his application, the applicant provided copies of California Department of Corrections and Rehabilitation medical records showing he was diagnosed with and is being treated for PTSD. He also provided self-authored letters requesting assistance with VA benefits for PTSD and correcting his first name within this Agency's case tracking system. 14. In the processing of this application, an advisory opinion was obtained from the Army Review Boards Agency's staff psychologist. The psychologist restates the applicant's disciplinary history and provides the following analysis. a. The applicant was diagnosed by his provider (a psychologist with a doctorate degree) with PTSD. The provider also diagnosed the applicant with major depressive disorder. The applicant purports to his civilian provider that he experienced witnessing the death of Soldiers within his unit in Korea. From this experience he endorses PTSD symptoms such as feelings of intense fear and horror, recurrent and intrusive thoughts of the incident, nightmares and flashbacks of the event. This diagnosis appears to be doubtful based on available evidence. In the notorious "Hatchet Incident," North Korean soldiers killed two American officers of the United Nations Command. b. There is no medical evidence in his Army records showing he sought treatment for a behavioral health condition or that a provider noted mental-health symptoms on any of his available medical examination forms. c. The applicant's available records did not at the time of his discharge reasonably support him having had a boardable medical condition. He appears to have met regulatory standards of AR 40-501 (Standards of Medical Fitness) and AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation). The available case material did not lend support to the existence of a mitigating mental-health condition of any kind during his period of active service, and based on available behavioral-health evidence, there appears to be no behavioral health condition that would warrant upgrading his discharge. A nexus between the applicant's extensive history of misconduct and his mental health was not discovered. d. Of note, the applicant is currently serving a life sentence for molesting a child under the age of 14. He also had a previous incarceration for armed robbery. 15. The applicant was provided with a copy of this advisory opinion in order to give him an opportunity to submit a rebuttal or general comments. He did not respond. REFERENCES: 1. AR 635-200 provides for the separation of enlisted personnel: a. Chapter 13, in effect at the time, set forth the policy and prescribed procedures for discharging enlisted personnel for unsuitability. Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that: the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability. Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis (bed wetting), and chronic alcoholism. Evaluation by a medical officer was required and when psychiatric indications were involved, the medical officer must be a psychiatrist, if one was available. A general under honorable conditions or an honorable discharge was considered appropriate. b. 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. 2. On 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 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 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? 3. Although the DOD acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had an undiagnosed condition of PTSD at the time of their discharge, it is presumed that they were properly discharged based upon the evidence that was available at the time. Conditions documented in the record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which PTSD or PTSD-related conditions may be reasonably determined to have existed at the time of discharge; those conditions will be considered potential mitigating factors in the misconduct that caused the under other than honorable conditions characterization of service. Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of under other than honorable conditions. Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. DISCUSSION: 1. The applicant's record revealed an extensive history of misconduct. He accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for willfully disobeying a superior commissioned officer, possessing marijuana, being absent without leave, and violating lawful general regulations. His record of indiscipline led his chain of command to initiate separation action for unsuitability. 2. His separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights. The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The reason for his discharge and the characterization of service were both proper and equitable. 3. There are no service medical records available to support his contention that a possible undiagnosed behavioral health condition (PTSD) contributed to his multiple acts of misconduct that ultimately led to his discharge. He provides evidence showing he is currently receiving treatment for PTSD and major depressive disorder from the State of California Department of Corrections and Rehabilitation, where his now incarcerated. The advising psychologist in this case did not find a nexus between the applicant's extensive history of misconduct and his mental health. 4. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006794 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160006794 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2