IN THE CASE OF: BOARD DATE: 2 August 2016 DOCKET NUMBER: AR20150003148 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: AR20150003148 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: AR20150003148 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 upgrade of his under honorable conditions discharge based on a diagnosis of post-traumatic stress disorder (PTSD). 2. The applicant states that his drug use during his military service ultimately led to his separation from the U.S. Army under the provisions of (UP) Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial. He states the Department of Veterans Affairs (VA) diagnosed him with service-connected PTSD and granted him disability compensation. He asserts that his discharge was a direct result of the undiagnosed PTSD. He adds the recent guidance pertaining to PTSD from the Secretary of Defense to military boards supports his request for upgrade of the characterization of his discharge. 3. The applicant provides copies of a: * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * VA rating decision * Secretary of Defense memorandum, dated 3 September 2014 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 14 June 1972 for a period of 3 years. He was awarded military occupational specialty 31B (Field Radio Mechanic) and served in Germany from 5 December 1972 to 21 December 1973. 2. On 25 July 1973, the company commander imposed nonjudicial punishment (NJP) against the applicant for, on 10 July 1973, willfully disobeying a lawful order (to take a urinalysis test) from his superior noncommissioned officer. a. His punishment included reduction to the grade of private (PV2)/pay grade E-2 (suspended for a period of 30 days) and 14 days of extra duty. b. On 27 July 1973, the applicant failed to report for formation and duty. Accordingly, the commander vacated the suspended portion of the NJP and reduced the applicant to PV2 (E-2). 3. On 26 September 1973, court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ), Article 92, for failing to obey a lawful order (two specifications) issued by his first sergeant on 13 September 1973 and by his commanding officer on 19 September 1973. 4. On 19 October 1973, the battalion commander approved a bar to reenlistment against the applicant based on offenses resulting in NJP and his continued failure to obey the orders of his superior NCO and company commander. 5. On 24 October 1973, the applicant consulted with legal counsel. He was informed of the charges against him for violating the UCMJ and that he was pending trial by court-martial. He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial. a. He voluntarily requested discharge for the good of the service in lieu of trial by court-martial. The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge. b. He acknowledged he understood that, if his request for discharge was accepted, he might be discharged with an undesirable discharge, under other than honorable conditions. c. He was advised that he might be: * deprived of many or all Army benefits * ineligible for many or all benefits administered by the VA * deprived of his rights and benefits as a veteran under both Federal and State laws d. He was also advised that he could submit statements in his own behalf; however, he did not elect to submit any statements. e. The applicant and his counsel placed their signatures on the document. 6. On 24 October 1973, applicant's legal counsel submitted to the battalion commander a request for defense delay in the special court-martial case of the applicant, pending final administrative decision on the applicant's request for discharge UP AR 635-200, chapter 10. 7. The chain of command recommended approval of the applicant's request for discharge with a General Discharge Certificate. (On 1 November 1973, the company commander wrote in his recommendation, "[t]here is no reason to believe that PV2 [Applicant] was mentally impaired or deranged at the time of the offense or at the present time.") 8. A DA Form 3822-R (Report of Mental Status Evaluation), completed by a physician on 9 November 1973, shows the applicant was found to: * be fully alert and oriented, his mood level, thinking process clear, thought content normal, memory good, and mentally responsible for his behavior * have the mental capacity to understand and participate in proceedings * meet medical retention standards 9. On 29 November 1973, the separation authority approved the applicant's request for discharge and directed that he be furnished a General Discharge Certificate. The separation authority also directed the applicant be escorted to the 97th General Hospital, Frankfurt, Germany, for medical evacuation to a U.S. Army hospital in the continental United States or a VA hospital near his home. 10. The applicant's DD Form 214 shows he entered active duty this period on 14 June 1972 and he was discharged on 15 February 1974 UP AR 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, with an under honorable conditions characterization of service. He had completed 1 year, 8 months, and 2 days of net active service that included 1 year and 17 days of foreign service. Item 30 (Remarks) shows, "[enlisted member] discharged in absentee status; in VA hospital, Wood, Wisconsin 53193." 11. A review of the applicant's military personnel records failed to reveal any evidence that the applicant applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations. 12. In support of his application the applicant provides an additional document that was not summarized above. He provides a copy of a Milwaukee VA Regional Office, Milwaukee, WI, letter, dated 4 April 2014 (pages 1, 3, 5, 7, and 9 of 9 pages). a. It shows, effective 14 October 2014, the VA granted the applicant service connection for: * chronic right lumbosacral plexopathy rated at 60% * PTSD and recurrent major depression rated at 50% b. It also shows: You provided a letter from a hometown friend of yours, Jim M____, which was dated October 23, 1973. This friend also served in Germany at the time that you were stationed there. The letter clearly shows that your friend was heavily involved in the drug culture at the time it was written. Not only does your friend admit to smuggling drugs onto an airplane in an effort to use them while on the plane, he also notifies you that he will try and send drugs back to you for your use in Germany. He also admits to filing a fraudulent insurance claim so that he can get prescription drugs to feed his addiction. You reported that this friend later committed suicide because of his drug addiction problems. You provided a statement from your treating physician, who speculated that your PTSD and right leg atrophy and limp due to neuromuscular disease could be related to your reported trauma during your military service in Germany. He did not reference any objective evidence in forming this opinion, thus, it is of no probative value. c. In reference to a letter the VA received from Darlene E___, who first met the applicant in October 2010, the applicant reported to her being a victim of a racial attack during his service and then becoming a recluse following the assault, using heroin and dirty needles. d. The available pages of the VA letter also show: * "You manifest symptoms consistent with an individual who has experienced PTSD." * "Your service records are negative for report or evidence of the assault." * "You were admitted on two occasions in 1973 for drug overdose, and were ultimately discharge[d] from the service." * "There was no report of the in-service trauma in these records." * "More recent VA treatment records show ongoing complaints of depression, hopelessness, suicidal ideation, and agitation. You have been diagnosed with chronic PTSD and major depression." 13. In the processing of this case, an advisory opinion was obtained from the Chief, Behavioral Health Division, Health Care Delivery, U.S. Army Medical Command, Office of The Surgeon General (OTSG), Falls Church, VA. a. The official stated that the advisory opinion was based solely on the information provided by the ABCMR as the Department of Defense electronic medical record (AHLTA) was not in use at the time of the applicant's service. b. The official noted the applicant was granted service connection by the VA for PTSD and major depressive disorder, recurrent, effective October 2014. However, there are no behavioral health (BH) records during the period of service under review that indicate the applicant met criteria for PTSD at the time of his separation. Therefore, there was insufficient information to determine if PTSD or any BH condition was the cause of the applicant's discharge. 14. On 17 June 2016, the applicant was provided a copy of the OTSG advisory opinion to allow him the opportunity (30 days) to submit comments or a rebuttal. A response was not received from the applicant. REFERENCES: 1. 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." 2. 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. 3. 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. 4. 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. 5. In view of the foregoing, on 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards 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. 6. 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? 7. 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. 8. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred. Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate. b. Chapter 3, 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. DISCUSSION: 1. The applicant contends that his discharge should be upgraded based on a diagnosis of PTSD. 2. The evidence of record shows the applicant's record of indiscipline began about 7 months after he was assigned overseas in Germany. a. The applicant requested and accepted a General Discharge. b. His available military service records fail to show he experienced a traumatic event during the period of service under review. Moreover, the VA found the statement that the applicant's civilian physician provided (speculating that the applicant's PTSD could be related to his reported trauma during his military service in Germany) offered insufficient evidence of PTSD. Thus, the VA determined the physician's statement to be of no probative value. c. The VA granted the applicant service connection for PTSD and recurrent major depression, effective 14 October 2014. 3. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards and 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. a. This policy provides for upgrade of an UOTHC characterization of service. b. The applicant was not discharged UOTHC; he was administratively discharged under honorable conditions. 4. The applicant's administrative separation UP AR 635-200, chapter 10, for the good of the service in lieu of court-martial was administratively correct and in compliance with applicable regulations in effect at the time with no indication of procedural errors which would have jeopardized his rights. Considering all the facts of this case, the reason for his separation and characterization of service were appropriate and equitable. 5. During the period of service under review the applicant received NJP for failing to obey a lawful order and he was later reduced to PV2 (E-2) for failing to report for duty. Then, court-martial charges were preferred against the applicant for failing to obey a lawful order (two specifications). In addition, he completed only 1 year and 8 months of his 3-year active duty obligation. The applicant's overall military service did not meet the standards of acceptable conduct and performance of duty for Army personnel sufficient to warrant an honorable discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150003148 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150003148 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2