IN THE CASE OF: BOARD DATE: 21 June 2016 DOCKET NUMBER: AR20150003896 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: 21 June 2016 DOCKET NUMBER: AR20150003896 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: 21 June 2016 DOCKET NUMBER: AR20150003896 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 the issuance of separate DD Forms 214 (Certificate of Release or Discharge from Active Duty) for his two periods of service and an upgrade of his discharge under other than honorable conditions (UOTHC) for his second period of service. 2. The applicant states: * he completed his first enlistment contract * his second period of service was cut short through no fault of his own because of undiagnosed post-traumatic stress disorder (PTSD) * he was shot by the military police after being driven to breakdown * he did not realize he would be unable to receive health care with his current character of service 3. The applicant provides: * Stars and Stripes news article titled "Rampaging GI wounded by MP," dated 30 July 1986 * DD Form 214 * Department of Veterans Affairs (VA) Statement in Support of Claim for Service Connection for PTSD Secondary to Personal Assault, dated 18 February 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. The applicant enlisted in the Regular Army on 18 June 1982. 3. He provided a news article from the Stars and Stripes, dated 30 July 1986, titled "Rampaging GI wounded by MP" telling how he was wounded by a military policeman after a 20-minute rampage in which he assaulted three people, smashed two stolen cars, and stripped three weapons from military policemen and a security guard. He sustained gunshot wounds to his arm and leg after the military policeman fired two shots at him, when he pointed a rifle at the officer and refused to surrender the weapons he stole. At the time of the article, he was in satisfactory condition at the Frankfurt Army Regional Medical Center. 4. Headquarters, V Corps, General Court-Martial Order Number 3, dated 27 February 1987, shows he appeared before a general court-martial which convened at Frankfurt, Germany, pursuant to Headquarters, V Corps, Court-Martial Convening Order Number 30, dated 4 August 1986. He was charged with and found guilty of: * attempting to murder Sergeant T____ C____ R____ on 26 July 1986 at Frankfurt, Germany, by pointing a loaded M1911A1 pistol at his head and pulling the trigger * attempting to wrongfully appropriate a Volkswagon Passat station wagon taxicab, the property of E____ K____ on 26 July 1986 at Frankfurt, Germany * two specifications of operating a motor vehicle on 26 July 1986 at Frankfurt, Germany, while drunk, to wit: a Dodge Daytona passenger car and a 1977 Buick passenger car * wrongfully appropriating an M1911A1 pistol, the property of the U.S. Government, of a value of more than $100.00 from Private K____ F____ on 26 July 1986 at Frankfurt, Germany * two specifications of robbery of an M1911A1 pistol, property of the U.S. Government, of some value from Private S____ R____ and Sergeant T____ C____ R____ on 26 July 1986 at Frankfurt, Germany * wrongfully appropriating a wallet and its contents of some value and a 1977 Buick, the property of Sergeant First Class W____ M____, and aggravated assault by striking Sergeant First Class M____ in the mouth and head with a means likely to produce serious bodily harm, to wit: an M1911A1 pistol, on 26 July 1986 at Frankfurt, Germany * wrongfully appropriating an M16A1 rifle, the property of the U.S. Government, of some value from Specialist Four C____ T____ and assault by unlawfully touching Specialist Four T____ on the back of his neck on 26 July 1986 at Frankfurt, Germany * two specifications of assaulting an on-duty military policeman by repeatedly striking Private S____ R____ and Private K____ F____ on the head with a means likely to produce grievous bodily harm, to wit: an M1911A1 pistol, on 26 July 1986 at Frankfurt, Germany * assaulting Specialist Four J____ M____ H____, an on-duty military policeman, by pointing a dangerous weapon at him, to wit: a loaded firearm, on 26 July 1986 at Frankfurt, Germany * assaulting E____ K____ by striking him in the head with a blunt object on 26 July 1986 at Frankfurt, Germany * assaulting Private S____ R____ by pointing a loaded M1911A1 pistol at his head on 26 July 1986 at Frankfurt, Germany 5. On December 1986, he was sentenced to confinement for 12 years, forfeiture of all pay and allowances, and reduction to the rank/grade of private/E-1. On 27 February 1987, the sentence was approved. 6. On 22 February 1991, the Commander, Correctional Holding Detachment, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, initiated discharge action against the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12, for commission of serious offenses, namely his misconduct on 26 July 1986, at Frankfurt, Germany, involving attempted premeditated murder, robbery (with force and violence and a firearm), larceny, wrongful appropriation, aggravated assault, and drunk driving. 7. The applicant was advised by consulting counsel of the basis for the contemplated separation action for misconduct, the type of discharge he could receive, the possible effects of this discharge, and the procedures and rights available to him. He acknowledged he understood he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him and that he might also be ineligible for many or all benefits as a veteran under both Federal and State laws if a discharge UOTHC were issued to him. 8. A DA Form 3822-R (Report of Mental Status Evaluation), dated 28 February 1991, shows he had the mental capacity to understand and participate in the proceedings, did not evidence disorder of thought or mood meriting medical disposition, and was psychiatrically cleared for any actions deemed appropriate by his command. 9. On 28 February 1991, he requested consideration of his case by an administrative separation board, a personal appearance before the separation board, and representation by military counsel. He did not submit statements in his own behalf. 10. On 14 March 1991, his commander recommended his appearance before a board of officers convened under the provisions of Army Regulation 635-200, paragraph 14-12, for the purpose of determining whether he should be discharged before the expiration of his term of service since his sentence did not include a punitive discharge and Army Regulation 635-200 requires commanders of such Soldiers to consider their administrative elimination. On 17 April 1985, the applicant reenlisted for a term of 4 years and 4 months and was continuously in pretrial or post-trial confinement since 26 July 1986. That time in confinement was not credited as good time, thus he had nearly 3 years of service obligation remaining. Discharge prior to his expiration term of service was recommended because of the gravity of the offenses for which he was found guilty by court-martial. In light of the number and severity of his offenses, efforts at rehabilitation were neither warranted nor recommended. 11. On 6 May 1991, a board of officers convened at Fort Leavenworth, Kansas, to consider the applicant for elimination under the provisions of Army Regulation 635-200, paragraph 14-12c. After careful consideration of the evidence the board recommended his discharge from the service because of the commission of serious offenses with the issuance of a discharge UOTHC. 12. On 28 June 1991, the approval authority carefully reviewed and approved the request to discharge the applicant for misconduct for commission of serious offenses under the provisions of Army Regulation 635-200, paragraph 14-12c, with a characterization of service of UOTHC. 13. On 2 August 1991, he was discharged accordingly. Item 18 (Remarks) of his DD Form 214 shows "Continuous Honorable Active Service From: 820618-850416//Immediate reenlistments this period: 820618-850416//Retained in service 838 days for convenience of the Government per AR [Army Regulation] 635-200//Excess Leave: 65 days 910530-910302//NOTHING FOLLOWS." 14. 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. 15. The Army Review Boards Agency Case Management Division sent him a letter on 31 March 2016, requesting copies of the medical documents that support his diagnosis of PTSD. 16. He provided a VA Statement in Support of Claim for Service Connection for PTSD Secondary to Personal Assault, dated 18 February 2015, wherein he describes two stressful incidents that occurred while in service that he feels contributed to his current condition. a. The first incident transpired at 0100 or 0200 on 12 January 1985. He was alone in his darkened room when he was violently awoken by the weight of several bodies pinning him down, forcing a musty laundry bag over his head, directing racial epithets at him, and pulling a small rope taught over his face. He was humiliated and unable to fight back. When he reported the incident to his first sergeant the next morning, he was summarily dismissed and further degraded. b. The second incident transpired on 26 July 1986. After the prior incident, he suffered from sleepless nights, paranoia, and a burning need to right all wrongs perpetrated against Black people. He does not enumerate the details of the day, but refers to the Stars and Stripes article "Raging GI wounded by MP," dated 30 July 1986. 17. He did not provide any medical documents and his military records are void of any documents corroborating he was diagnosed with or was ever treated for PTSD. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge UOTHC is normally considered appropriate for a Soldier discharged under this chapter. b. Paragraph 3-7a states 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. c. Paragraph 3-7b states that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 2. Army Regulation 635-5 (Separation Documents) prescribes the separation documents which are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army. It establishes standardized policy for preparing and distributing the DD Form 214. a. The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge and will be prepared for all personnel at the time of their retirement, discharge, or release from active duty. A DD Form 214 will not be prepared for enlisted members discharged for immediate reenlistment in the Regular Army. b. For enlisted Soldiers with more than one enlistment period during the time covered by this DD Form 214, enter "IMMEDIATE REENLISTMENTS THIS PERIOD (specify dates)" in item 18 (Remarks). However, for Soldiers who have previously reenlisted without being issued a DD Form 214 and are separated with any characterization of service except "honorable," enter "CONTINUOUS HONORABLE ACTIVE SERVICE FROM (first day of service which DD Form 214 was not issued) UNTIL (date before commencement of current enlistment)." c. For a Soldier retained past expiration term of service, enter in item 18 "RETAINED IN SERVICE (specify number of days) FOR CONVENIENCE OF THE GOVERNMENT PER (authority for retention)." 3. The Diagnostic and Statistical Manual of Mental Disorders (DSM), chapter 7, addresses trauma and stress or related disorders. The DSM is published by the American Psychiatric Association (APA) and provides standard criteria and common language for classification of mental disorders. In 1980, the APA added PTSD to the third edition of its DSM nosologic classification scheme. Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice. From a 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. 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. 5. The fifth edition of the DSM 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 criterion 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; or (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; or (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; or (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); and (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, and (6) sleep disturbance. f. Criterion F – Duration: Persistence of symptoms (in Criteria B, C, D, and E) for more than 1 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. 6. 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 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 Soldiers' misconduct that 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 a 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. 7. On 3 September 2014 in view of the foregoing information, 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 applicants' service. 8. 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? 9. Although 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 records 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. BCM/NRs 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. BCM/NRs 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 request for the issuance of separate DD Forms 214 for his two periods of service and an upgrade of his discharge UOTHC for his second period of service was carefully considered. 2. He was tried by court-martial and found guilty of attempted premeditated murder, robbery (with the use of violence and a firearm), larceny, wrongful appropriation, aggravated assault, and drunk driving. He was sentenced to 12 years in confinement, reduction to the rank/grade of private/E-1, and forfeiture of all pay and allowances. 3. Although not sentenced to a punitive discharge at the court-martial, the available evidence shows he was subsequently properly and equitably processed for discharged in accordance with Army Regulation 635-200, paragraph 14-12c, for misconduct for commission of serious offenses after review by a board of officers. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 4. Based on his record of serious misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. 5. His DD Form 214 appropriately reflects his character of service as UOTHC, while also accounting for his continuous period of honorable service from 18 June 1982 through 16 April 1983. Regulatory guidance specifies a DD Form 214 will not be prepared for enlisted members discharged for immediate reenlistment in the Regular Army. 6. At the time of his discharge, PTSD was largely unrecognized by the medical community and DOD. However, both the medical community and DOD now 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. 7. 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. 8. While the applicant contends he suffered from PTSD while serving on active duty which resulted in his less than honorable discharge, there is no evidence to support this contention. A review of his records and the evidence he provided shows he was involved in premeditated misconduct and was wounded by a military police officer in an attempt to subdue him while he engaged in assault and threatened the life of a Soldier with a loaded weapon. His mental status evaluation shows he suffered from no disorder of thought or mood meriting medical disposition. He has not provided any VA or other medical documents speaking to a diagnosis of or treatment for PTSD. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150003896 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150003896 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2