IN THE CASE OF: BOARD DATE: 23 June 2016 DOCKET NUMBER: AR20150000862 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 June 2016 DOCKET NUMBER: AR20150000862 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 June 2016 DOCKET NUMBER: AR20150000862 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 discharge to be upgraded to honorable without the "Misconduct" identifier. In effect, he requests correction of his narrative reason for separation from misconduct to a more favorable term. 2. The applicant states due to having this "Misconduct" identifier, he is not entitled to benefits he earned during his service. He was suffering from anxiety, post-traumatic stress disorder (PTSD), and other mental health issues that led to his self-medicating with alcohol, which eventually led to his misconduct. The Department of Veteran Affairs (VA) determined his disabilities were 30 percent disabling initially in 1995, but currently he is rated at 70 percent service connected. He feels he was unfairly discharged without consideration of his debilitating health issues. He feels the Army should have discharged him based on his illnesses as opposed to his behaviors. Therefore, he is requesting that his discharge be revisited and upgraded. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * VA Form 21-526 (Veterans Application for Compensation or Pension) * VA progress notes, discharge notes, discharge instructions, and treatment plan * therapy progress notes * psychological assessment plan * consultation sheet 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 13 January 1987 and reenlisted on 29 September 1989. He held military occupational specialty 11C (Indirect Fire Infantryman). He was promoted to sergeant (SGT) in December 1989. 3. He served in Italy from 24 June 1990 to 17 June 1993. He was assigned to the 3rd Battalion, 325th Infantry Regiment, and deployed to Southwest Asia from 27 April 1991 to 20 July 1991. 4. He was frequently counseled by members of his chain of command for various infractions, including public intoxication, disorderly conduct, civilian arrest, conduct unbecoming a noncommissioned officer, and physical abuse towards his spouse. 5. On 4 May 1994, his immediate commander initiated a bar to reenlistment citing the applicant?s arrest by military authorities as the primary misconduct. He was provided with a copy of this bar but elected not to submit a statement on his own behalf. The bar was ultimately approved. 6. On 1 August 1994, the applicant’s immediate commander notified him of his intention to initiate separation action against him in accordance with Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12b, for misconduct – pattern of misconduct. The specific reason is cited as the applicant's misconduct, which was prejudicial to the good order and discipline of the unit. He recommended the issuance of a general discharge. 7. The applicant acknowledged receipt of the commander's intent to separate him. He consulted with legal counsel who advised him of the basis for the contemplated separation action for misconduct, the type of discharge he could receive and its effect on future enlistments or reenlistments, the possible effects of this discharge, and of the procedures/rights that were available to him. He requested consideration of his case by a separation board and/or a personal appearance before a separation board. He also elected not to submit a statement. He acknowledged he understood that: a. He could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him. b. He could be ineligible for many or all benefits as a veteran under Federal and State laws as a result of the issuance of an under other than honorable conditions discharge. 8. Subsequent to his acknowledgement, the applicant’s immediate commander initiated separation action against him in accordance with AR 635-200, paragraph 14-12b, for misconduct. He cited the patterns of misconduct as the applicant's physical abuse of his spouse, his civilian arrest for disorderly conduct, public intoxication, and his civil disobedience in a public area. His intermediate commander recommended approval. 9. On 31 August 1994, an administrative separation board convened at Fort Benning, GA, with the applicant and his counsel present. The administrative separation board found the applicant "did commit a pattern of misconduct that was prejudicial to good order and discipline." The administrative separation board found him undesirable for further retention and recommended his discharge with the issuance of an honorable characterization of service. 10. On 15 October 1994, he was arrested by civil authorities in Muscogee County, GA, for cruelty to children, driving under the influence, having an open container, and crossing the center line of a highway. 11. On 2 December 1994, the separation authority approved the findings and recommendations of the administrative separation board and ordered the applicant discharged from the Army under the provisions of paragraph 14-12b of AR 635-200, with his characterization of service as honorable. The applicant was accordingly discharged on 13 December 1994. 12. His DD Form 214 shows he was discharged under the provisions of paragraph 14-12b of AR 635-200 due to misconduct with an honorable characterization of service. He completed 7 years, 11 months, and 1 day of net active service this period. The DD Form 214 listed the narrative reason for separation as "Misconduct" and the separation code as "JKA." 13. There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 14. He provides a VA application for Compensation or Pension, VA progress notes, discharge notes, discharge instructions, and treatment plan; therapy progress notes, psychological assessment plan, and consultation sheet. These medical documents were forwarded to the Office of The Surgeon General (OTSG) for an advisory opinion. An OTSG official rendered one on 1 June 2016. He references the Diagnostic and Statistical Manual of Mental Disorder, Fifth Edition, AR 40-501 (Standards of Medical Fitness), and AR 635-200. He states: a. On 4 January 2015, the applicant requested the Board upgrade his discharge due to anxiety, PTSD, and other issues because he self-medicated with alcohol, which eventually led to his pattern of misconduct. He specifically requested his narrative reason for separation be removed. OTSG was asked to review his record to determine if PTSD could have influenced his acts of misconduct. b. He deployed to the Persian Gulf in support of Operation Desert Storm from ?March 1992 to August 1993? (sic, 27 April 1991 to 20 July 1991). During his deployment, he was exposed to combat trauma. According to medical records, he witnessed people being killed and he had associated post-traumatic stress symptoms to include flashbacks, nightmares, and mood irritability. He was diagnosed with PTSD and received treatment from the VA and private practice psychologists. c. He reported that he was separated for misconduct. No additional information about the circumstances of his separation was noted in his post-service medical records. Likewise, active duty medical records were not available for review. There is clear documentation in the post-service medical records that he had combat-related PTSD and it is plausible that this condition influenced his behavior at the time of discharge. 15. The applicant was provided with a copy of this advisory opinion to allow him an opportunity to submit a rebuttal or comments, but he did not respond. REFERENCES: 1. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 14 established policy and prescribed procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, to include abuse of illegal drugs; convictions by civil authorities, and desertion or absence without leave. Action would be taken to separate a Soldier for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed. Paragraph 14-12 prescribes the conditions that subject Soldiers to discharge for misconduct. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. 2. AR 635-5-1 (Separation Program Designator (SPD)) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It states the SPD code of JKA is the appropriate code to assign to Soldiers separated under the provisions of AR 635-200, paragraph 14-12b due to misconduct – pattern of misconduct. 3. 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." 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. 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 individuals 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. Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge. 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 evidence of record shows the applicant served on active duty from 13 January 1987 through 13 December 1994. a. He displayed a pattern of misconduct ranging from public intoxication, disorderly conduct, and conduct unbecoming a noncommissioned officer, to physical abuse of his spouse and civilian arrest for driving under the influence. Based on his repeated patterns of misconduct, his chain of command initiated separation action against him. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. b. Based on his years in service, he requested consideration by an administrative separation board. He appeared before the board with counsel. The administrative separation board found the applicant "did commit a pattern of misconduct that was prejudicial to good order and discipline." The administrative separation board found him undesirable for further retention and recommended his discharge from the service with the issuance of an honorable characterization of service. c. During his service the applicant was promoted to SGT and assigned as a team leader, a position of authority and responsibility. In promoting him, the Army reposed special trust, confidence, and recognized his potential for professional excellence in future assignments. As a SGT, the applicant was in a position of trust and responsibility. He was responsible for the welfare of those assigned under him. With his repeated acts of misconduct, the applicant violated this special trust and confidence. The final separation authority took into consideration the board?s recommendation to include his wartime service in Southwest Asia, and directed his honorable separation. d. His narrative reason for separation was determined based on the fact that he was separated under the provisions of AR 635-200, chapter 14, for misconduct – pattern of misconduct. Absent his pattern of misconduct, there was no fundamental reason to process him for separation. The underlying reason for his discharge was his continued misconduct. The only valid narrative reason for separation permitted under that paragraph is "misconduct" and the separation code associated with this discharge is "JKA," which is correctly shown on his DD Form 214. 2. There is documentation in the applicant's post-service medical records showing he has combat-related PTSD, and an OTSG advisor has opined that it is plausible that this condition influenced his behavior throughout his period of service after his deployment. PTSD would be considered a mitigating factor had he received a characterization of service that was less than honorable. The evidence does not indicate that there is an error or injustice in the reason for his separation. //NOTHING FOLLOWS//