BOARD DATE: 30 April 2015 DOCKET NUMBER: AR20150000822 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 general discharge under honorable conditions to an honorable discharge. 2. The applicant states, in effect, that almost losing his life during the war in Iraq was scary and as a result he suffers from post-traumatic stress disorder (PTSD). Thanks to his sacrifice he survives. The Department of Veterans Affairs (VA) diagnosed him with PTSD and informed him that this condition could have had an adverse affect on his behavior and a causative factor for his misconduct. He is a 100 percent disabled veteran as a result of almost losing his life in Iraq. 3. The applicant provides: * a VA Rating Decision, dated 23 March 2011 * a letter from the VA, dated 5 May 2011 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 5 February 2004. Upon completion of initial entry training he was awarded military occupational specialty 11B (Infantryman). 3. The applicant served in Kuwait and Iraq from 28 September 2005 through 11 June 2006. He was awarded the Purple Heart for wounds received as a result of hostile actions on 27 March 2006. 4. On 28 April 2006, the applicant received nonjudicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for willfully disobeying a noncommissioned officer (NCO), on 26 April 2006. His punishment included a reduction to the rank/pay grade private first class (PFC)/E-3, suspended to be automatically remitted if not vacated before 28 September 2006; and, he was required to perform extra duty and to be on restriction for 14 days. He did not appeal the punishment imposed. 5. On 6 May 2006, the suspension of the punishment of reduction to PFC/E-3 was vacated. The vacation of the punishment imposed on 28 April 2006 was based on his failure to go to his appointed place of duty at the time prescribed on 5 May 2006. 6. On 31 May 2006, the applicant received an Article 15, under the provisions of the UCMJ, for willfully disobeying a sergeant (SGT)/E-5, a sergeant first class/ E-7, and a first sergeant/E-8, on 28 May 2006; for attempting to physically strike the SGT on 28 May 2006; and for assaulting a specialist/E-4 by running after him on 28 May 2006. The imposed punishment was reduction to the rank and pay grade private, E-1; a forfeiture of $636.00 pay for 2 months; and extra duty for 45 days, suspended, to be automatically remitted unless vacated before 30 November 2006. The applicant did not appeal the punishment imposed. 7. On 3 August 2006, the suspension of the punishment of extra duty for 45 days was vacated. The vacation of the punishment imposed on 31 May 2006 was based on the applicant having been disrespectful in language and deportment toward an NCO on 29 July 2006. 8. On 22 August 2006, charges were preferred against the applicant for leaving his appointed place of duty without authority on 3 August 2006; for willfully disobeying an NCO on 29 July 2006; and for being disrespectful in language and deportment toward an NCO on 29 July 2006; for willfully disobeying an NCO on 3 August 2006; and for being disrespectful in language and deportment toward an NCO on 3 August 2006. 9. On 22 August 2006, the applicant voluntarily 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 (Active Duty Enlisted Administrative Separations), Chapter 10. 10. In his request the applicant acknowledged he understood he could request discharge for the good of the service because charges had been filed against him under the UCMJ, which could authorize the imposition of a bad conduct or dishonorable discharge. He added that he was making his request of his own free will and had not been subjected to coercion whatsoever by any person. The applicant stated he had been advised of the implications that were attached to his request and that by submitting his request, he acknowledged that he was guilty of the charge against him or of a lesser or included offense which also authorized the imposition of a bad conduct or a dishonorable discharge. Moreover, he stated that under no circumstances did he desire further rehabilitation for he had no desire to perform further military service. 11. Prior to completing his request for discharge for the good of the service, the applicant was afforded the opportunity to consult with counsel. He consulted with counsel on 22 August 2006 and was fully advised of the nature of his rights under the UCMJ. Although he was furnished legal advice, he was informed that the decision to submit a request for discharge for the good of the service was his own. 12. The applicant stated he understood that if his request was accepted, he could be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate. He was advised and understood the effects of an UOTHC discharge and that issuance of such a discharge could deprive him of many or all Army benefits that he might be eligible for, that he might be ineligible for many or all benefits administered by the VA, and that he might be deprived of his rights and benefits as a veteran under both Federal and state laws. He also understood that he could expect to encounter substantial prejudice in civilian life because of an UOTHC discharge. 13. The applicant was advised that he could submit a statement in his own behalf, which would accompany his request for discharge. There is no evidence the applicant submitted a statement in his own behalf. 14. The applicant's request for discharge, for the good of the service, in lieu of court-martial, was reviewed by the 101st Airborne Division and Fort Campbell Staff Judge Advocate on 8 November 2006. After reviewing the charges and the applicant's service record, the SJA recommended the applicant's request be approved and that he be issued an UOTHC discharge. 15. On 8 November 2006, the approval authority, a Major General, approved the applicant's request for discharge, for the good of the service, in lieu of trial by court-martial. 16. The applicant was issued a UOTHC discharged, in the rank and pay grade of private, E-1, on 17 November 2006, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial. He had completed 2 years, 9 months, and 13 days creditable active military service, with no time lost. 17. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations. In his request, the applicant stated that he had always been a good Soldier, but was just having mental problems in Iraq from all the pressure that we have there, all the casualties he had seen, and all of the fallen Soldiers. He stated that this was no excuse for his behavior, but all of the incidents that occurred were based upon his mental condition. 18. On 11 October 2007, he was notified that after review of his case and all applicable records, it was determined that relief was warranted. The ADRB voted to grant partial relief to his request and approved an upgrade of the characterization of his discharge to general, under honorable conditions. The bases for this decision were the ADRB's opinion that the applicant's length of service, his combat service, and the medical circumstances surrounding his discharge mitigated the discrediting entries in his service record. As a result, the applicant was issued a DD Form 214 which shows his characterization of service was upgraded to General, under honorable conditions on 11 October 2007. 19. The applicant submitted: a. VA Rating Decision, dated 23 March 2011, which shows his evaluation of PTSD with major depression and psychotic features, which is currently 50 percent disabling, was increased to 100 percent effective 15 December 2010. It was noted that he was still experiencing nightmares and flashbacks from the war and his condition was getting worse. His symptoms include intense fear, hopelessness, horror with recurrent and distressing recollections of the event, and a tendency to avoid people. b. a letter from the VA, dated 5 May 2011, which shows his monthly disability compensation was increased as a result of his disability rating being increased from 50 percent to 100 percent. 20. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit, at any time after the charges have been preferred, a request for discharge for the good of the service, in lieu of trial by court-martial. An UOTHC discharge is normally considered appropriate, but the separation authority may direct a general discharge or an honorable discharge if such is merited by the Soldier's overall record and if the Soldier's record is so meritorious that any other characterization clearly would be improper. 21. Army Regulation 635-200, 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. 22. 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." 23. 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. 24. 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. 25. 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 (UOTHC) 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. 26. 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. 27. 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? 28. 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 AND CONCLUSIONS: 1. The applicant's request for an upgrade of his general discharge under honorable conditions was carefully considered. 2. The fact that the applicant has been diagnosed with PTSD is duly noted. 3. The applicant's administrative discharge was accomplished in accordance with applicable regulations with no violation of his rights. 4. Although he initially received a UOTHC discharge for misconduct, the ADRB subsequently determined that his medical condition contributed to his misconduct and upgraded his discharge to general, under honorable conditions. The fact that he was discharged for this more favorable reason indicates his commander took into consideration the entirety of his military service and the severity of his misconduct, to include any mental health issues he may have had at the time of discharge. Accordingly, his upgraded discharge and the reasons therefore were appropriate under the circumstances. 5. 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 and 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 military service was marred with misconduct. Therefore, he is not entitled to an honorable discharge. 6. In view of the foregoing, there is no basis for granting the applicant an upgrade of his discharge. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ __X___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that 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. ABCMR Record of Proceedings (cont) AR20150000822 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150000822 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1