IN THE CASE OF: BOARD DATE: 2 August 2016 DOCKET NUMBER: AR20150003088 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: 2 August 2016 DOCKET NUMBER: AR20150003088 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: 2 August 2016 DOCKET NUMBER: AR20150003088 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 general discharge (GD) under honorable conditions be upgraded to an honorable discharge (HD) and add air assault training to his DD Form 214 (Certificate of Release or Discharge from Active Duty). 2. The applicant states: a. He completed air assault training at Fort Rucker, AL, in 1995. The air assault school was his last unit of assignment before he got out. His unit was disbanded in early 1995. b. He was all messed up, scared, and has post-traumatic stress disorder (PTSD). He thought he had a fully honorable discharge and a medical discharge due to his laparoscopic surgery. He was not able to do his job since he was injured in a parachute jump at Fort Benning, GA. After surgery, he could not run and his sergeant almost beat him up on the road side. Since he could not run like he used to, his commanding officer and other noncommissioned officers decided to ?push him out? of the Army. c. He and his family requested the assistance of a congresswoman in Jacksonville, FL, to investigate the abuses. Eventually, he was told by a legal officer that he could get out, but he thought he was getting out on a medical discharge not a GD. He just wanted to get out, so he signed whatever they asked him to sign. d. He did not know he could do anything about upgrading his GD. He was young and did not understand what was going on at the time. He just wanted to stop being abused and picked on because he could not do his job. By upgrading his discharge now, he will be able to receive assistance from the Department of Veterans Affairs (VA) for his PTSD. 3. The applicant provides: * a self-authored letter * medical records * Standard Forms (SF) 600 (Chronological Record of Medical Care) * SF Form 539 (Abbreviated Medical Record) * Authorization to Use or Disclose Protected Health Information Form, dated 28 May 2013 * University of Florida Psychiatry Medication Management Forms * Florida Department of Corrections Individualized Service Plan, dated 4 June 2015 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 24 March 1994 he enlisted in the Regular Army. He completed basic training and was awarded military occupational specialty 11B (Infantryman). 3. From 20 February 1995 to 18 April 1995, the applicant received multiple counseling’s for failure to report, failure to shave, wearing an earring while in uniform, disobeying an order from a superior noncommissioned officer (NCO), disrespectful toward an NCO, failure to follow instructions, indecent language, missing movement, and using provoking speech or gestures. 4. On 18 April 1995, the applicant received a general counseling form that states, in pertinent part, he was released from Air Assault Class 95-07 for missing more than one hour of training, specifically physical fitness training. When cadre informed his he was dropped, he became belligerent, disrespectful in language, and disobeyed direct order of his superiors. He also threated to go absent without leave (AWOL). He was advised his conduct was prejudicial to good order and discipline. He was advised he was violating the Uniform Code of Military Conduct. 5. Two DA Forms 4187 (Personnel Action) shows the applicant went AWOL on 18 April 1995 (the date of the counselling) and returned to military control on 12 May 1995. 6. On 16 May 1995 the applicant received nonjudicial punishment (NJP) for being AWOL from 18 April 1995 to 12 May 1995. 7. The applicant's unit commander notified the applicant he was initiating action to separate him under the provisions of paragraph 14-12c, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), by reason of a commission of a serious offense. He cited the offense as AWOL. 8. On 25 May 1995 the applicant underwent a mental status evaluation at the behavioral health clinic. The report was reviewed and signed by the clinic chief. It states he has the mental capacity to understand and participate in administrative proceedings and was mentally responsible. He had difficulty in his unit and often went AWOL when he no longer could handle the stress. He stated he wanted to get out of the Army and get a good job back home. The report evaluation states his * Behavior – normal * Level of alertness – fully alert * Level of orientation – fully oriented * Mood or affect – unremarkable * Thinking process – clear * Thought content – normal * Memory – good 9. On 31 May 1995 the applicant was advised of his right to consult with legal counsel and he was advised of the basis for the contemplated separation action, its effects, of the rights available to him, and of the effect of a waiver of those rights. He acknowledged he may encounter substantial prejudice in civilian life if he received a GD. After this counseling, he elected not to submit a statement in his own behalf or be represented by military counsel. He signed the legal notification. 10. On 1 June 1995 the separation authority approved the applicant's separation under the provisions of paragraph 14-12c, Army Regulation 635-200. He directed the issuance of a GD. 11. On 2 June 1995, the applicant was discharged by reason of misconduct under the provisions of paragraph 14-12c, Army Regulation 635-200. He completed 1 year, 2 months, and 9 days of net active service that was characterized as under honorable conditions (general). 12. There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its statute of limitations. 13. The applicant provides excerpts from his military medical records: * 12 - 21 September 1994, testicular pain which started after a parachute jump in July 1994 * 5 October 1994, left testicular pain * 30 November 1994, laparoscopic surgery for high ligation of left internal spermatic veins 14. The applicant provides medical records from the University of Florida showing: a. In August 2012, his diagnoses were: * Axis I: schizoaffective disorder, bipolar type 295.70; PTSD 309.81 * Axis II: deferred * Axis III: migraine headaches * Axis IV: chronicity of illness, limited social support, poor coping skills, history of trauma * Axis V: current global assessment of functioning (GAF) approximately: 31 - 40 * Severity of illness: 7 – among the most extremely ill patients * Global improvement: 7 – very much worse * Plan: patient meets criteria for Baker Act because he is acutely psychotic, suicidal, and is a danger to self. b. In August 2013, his diagnoses were: * Axis I: schizoaffective disorder, bipolar type 295.70; PTSD 309.81 * Axis II: deferred * Axis III: migraine headaches * Axis IV: chronicity of illness, limited social support, poor coping skills, history of trauma * Axis V: current GAF approximately 41 - 50 15. He provides medical records from the Florida Department of Corrections, dated 4 June 2015, for fluctuating mood disturbances involving periods of manic symptoms alternating with period of depression, anxiety issues, apprehension, tension, pervasive uneasiness, nervousness, irritability, and tightness in his jaws. Records annotate a suicide attempt in 2003. The applicant was compliant with mental health counseling, attended sessions and was actively working on treatment plans. He was diagnosed with seasonal affective disorder (SAD), depressive disorder, and PTSD. 16. On 17 June 2016, The Office of the Surgeon General (OTSG) provided an advisory opinion: a. In an initial assessment conducted by the University of Florida Psychiatry Department in July 2012, the applicant was diagnosed with schizoaffective, bipolar type, PTSD, and was prescribed medication. This assessment indicates multiple prior inpatient psychiatric hospitalizations beginning at age 12. He was hospitalized in August 2012 after presenting with decreased need for sleep, increased irritability, racing and disorganized thoughts and psychomotor agitation. b. There is no record of behavior health (BH) problems or treatment during the applicant’s military service nor is there evidence that he met criteria for PTSD or any other BH disorder at the time of his separation. However, his reported hospitalization shortly after his separation from the Army and the severity of his current BH diagnosis suggests he may have met the criteria for schizoaffective disorder, bipolar type while he was in service. However, there is insufficient evidence on which to base a more definitive opinion. 17. The applicant was provided a copy of the advisory opinion for an opportunity to respond. He responded on 1 July 2016 stating: a. After his parachute accident, he had surgery and everything went downhill. He had physical and metal trauma and was not allowed to perform his military duties. b. His sergeant thought he was faking his injury after his surgery. He was isolated from his unit, and then started drinking to stop the pain and to help him sleep because of his nightmares. The abuse from others caused him great stress, which in turn, caused him great stress at home. He did not realize at the time that he had PTSD, schizoaffective, and bipolar type behavior. c. He sought help from the chaplain, but did not want to go to mental health because he was scared. He thought that when the Army finally let him out, it was for medical reasons since he could no longer do his job. REFERENCES: 1. Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. An HD was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate. b. Chapter 14 established policy and prescribed procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and AWOL. (1) Paragraph 14-12c provides for the discharge of Soldier for misconduct consisting of one of the following: (a) Discreditable involvement with civil or military authorities. (b) Discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the Uniform Code of Military Justice (UCMJ), Army regulations, the civil law, and time-honored customs and traditions of the Army. (2) A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter. 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, 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 (emphasis added) 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 under other than honorable conditions (emphasis added) 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 under other than honorable conditions (emphasis added) 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 (emphasis added) 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 (emphasis added). 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. 9. Army Regulation 635-5 (Separation Documents), then in effect, established the standardized policy for preparing and distributing the DD Form 214. Formal in-service (full-time attendance) training courses successfully completed during the period of service covered by the DD Form 214 were entered in item 14 (Military Education). All decorations, service medals, campaign credits, and badges awarded or authorized were entered on the DD Form 214. DISCUSSION: 1. The evidence of record shows he was dropped from air assault school because he missed training. He was formally counseled on his shortcomings and failure to comply with training standards. There is no evidence he successfully graduated from this training or was awarded the Air Assault Badge. With no course completion certificate, by regulation his partial participation in air assault training cannot be added to his DD Form 214. 2. Based on the applicant’s history of AWOL and lack of compliance with established standards of conduct for Soldiers, his chain of command initiated action to eliminate him from the Army prior to his expiration of his term of service. A review of the evidence indicates the applicant's administrative discharge was accomplished in accordance with applicable regulations with no violation of his procedural rights. Although he could have been recommended for an under other than honorable conditions characterization of service, his senior commander showed leniency by directing issuance of a GD. 3. The medical community and DOD have a more thorough understanding of PTSD and its potential to serve as a causative factor in a Soldier's misconduct when the condition is not diagnosed and treated in a timely fashion. Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible recharacterization of their overall service. Concerning the applicant’s record there is no known traumatic event documented in his record, such as witnessing a death or serious life threatening injury to himself or others, that would support a conclusion that PTSD symptoms were present while he was on active duty. 4. The applicant provided post-service medical records showing he was diagnosed with PTSD, SAD, depression, schizoaffective disorder, and bipolar disorder. The OTSG advisory opinion states there is no record of BH problems or treatment during the applicant’s military service nor is there evidence that he met the criteria for PTSD or any other BH disorder at the time of his separation. His reported hospitalization shortly after his separation from the Army and the severity of his current BH diagnosis is noted. However, the evidence does not indicate an error or injustice occurred in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150003088 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150003088 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2