IN THE CASE OF: BOARD DATE: 25 August 2016 DOCKET NUMBER: AR20150004572 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: 25 August 2016 DOCKET NUMBER: AR20150004572 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: 25 August 2016 DOCKET NUMBER: AR20150004572 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests an upgrade of his under honorable conditions (general) discharge. 2. The applicant states his discharge was inequitable because it was based on incidents that were directly caused by the onset of post-traumatic stress disorder (PTSD) that went untreated during his service. The PTSD is now documented with a 60 percent rating and serves as evidence in support of his discharge upgrade. 3. The applicant provides his Department of Veterans Affairs (VA) rating decision. 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 21 November 1989 and he held military occupational specialty 13E (Cannon Fire Direction Specialist). He was promoted to private first class/pay grade E-3 on 1 September 1990. He served in Southwest Asia from 11 October 1990 to 8 March 1991, a period of 4 months and 26 days. 3. He was frequently counseled by members of his chain of command for various infractions including: * failing to show up for formation * revocation of driving privileges * driving while privileges were revoked * theft of personal property 4. On 4 August 1991, he was apprehended by the Texas Department of Public Safety police for drunk driving. His installation driving privileges were subsequently suspended. On 7 August 1991, he was reprimanded by the Commanding General, 1st Cavalry Division, Fort Hood, TX for this offense. 5. On 14 February 1992, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for willfully disobeying a lawful order by wrongfully driving on post while his driving privileges were suspended. His punishment consisted of a reduction to pay grade E-1 (suspended) and a forfeiture of pay. 6. On 27 February 1992, the suspended punishment was vacated and ordered executed after the applicant stole property (license plate sticker belonging to another Soldier), a violation of the UCMJ. 7. On 4 March 1992, 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 repetitive acts of misconduct (poor attitude toward the military and exceeding weight control standards). The commander recommended the issuance of a general discharge and advised him to seek legal counsel. 8. 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 waived consideration of his case by a separation board and/or a personal appearance before a separation board contingent on receiving a characterization of service no less than under honorable conditions (general). 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. 9. 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. His intermediate commander recommended approval with the issuance of a General Discharge Certificate. 10. On 11 March 1992, the separation authority approved the applicant's discharge from the Army under the provisions of AR 635-200, paragraph 14-12b, with an under honorable conditions (general) discharge. The applicant was accordingly discharged on 26 March 1992. 11. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of AR 635-200, paragraph 14-12b, due to misconduct with a general characterization of service. He completed 2 years, 4 months and 6 days of active service. His narrative reason for separation was "Misconduct – Pattern of Misconduct". 12. There is no indication the applicant petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 13. He provides a VA rating decision, dated 10 March 2014, that shows he was awarded a service-connected disability rating for PTSD rated at 70 percent disabling. 14. The Board forwarded his file to The Office of The Surgeon General (OTSG) for review to determine if there was a nexus between his claim of PTSD and the misconduct that led to his discharge. OTSG rendered an advisory opinion on 6 July 2016. An OTSG official references the Diagnostic and Statistical Manual of Mental Disorder, Fifth Edition; AR 40-501 (Standards of Medical Fitness); and AR 635-200. The OTSG inadvertently listed the wrong name in the narrative of the advisory opinion but this was corrected. The official stated: a. In February 2015, the applicant told the Board that his "discharge is inequitable because it is based on incidents that are directly related to issues caused by the onset of PTSD." OTSG was asked to determine if applicant's military separation was due to PTSD or any other behavioral health (BH) condition. This opinion is based solely on the information provided by the Board as the Department of Defense electronic medical record (AHLTA) was not in use at the time of his service. b. The VA granted him service connection for PTSD with a disability rating of 70 percent prior to 2010. Two subsequent requests for an increased rating were denied in 2010 and 2014, respectively. c. There are no behavioral health records during his service that indicate he met criteria for PTSD or any other psychiatric disorder at the time of his separation. The only documentation he submitted were VA Rating Decisions in which the evidence cited dates 20 years after his discharge. There is no indication of a precipitating stressor and it does not appear as though he was deployed to combat during his service. There are no subsequent records of evaluation or treatment at the VA or elsewhere. Therefore, OTSG does not have sufficient information to determine if PTSD or any BH condition was present at the time of discharge. 15. The applicant responded a. The initial request he sent discusses the patterns of misconduct and attributes them to symptoms that led to years of denial and self-medicating and ultimately a diagnosis of PTSD. At the time of his service, he was unaware of the effects his combat experience and the hazards of self-medicating. In the advisory opinion response he received, there are references to someone other than himself in the letter. The advisory official listed another individual's name. That person has no behavioral health records that indicate he met the criteria for a PTSD diagnosis, and that he has no combat experience. He is now sending his DD Form 214 and his VA award letter to help with the clarification of his identity and his military experience which he hopes will provide the evidence to change his discharge to honorable. b. If the Board needs more evidence to reflect a positive change in his life, he is willing to provide medical records that show treatment through the VA, as well as credentials that show his Associates Degree and progress towards a Bachelor’s Degree. 16. Based on the applicant’s assertion that OTSG provided him with another applicant?s advisory opinion, the Case Management Division coordinated with OTSG and received a corrected advisory opinion. The corrected copy was forwarded to the applicant on 28 July 2016 for his review. He responded telephonically on 6 August 2016 and requested his application be processed accordingly. 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. PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster. The American Psychiatric Association (APA) publishes the Diagnostic and Statistical Manual of Mental Disorders (DSM) 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. 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 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. 5. 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. 6. 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 21 November 1989 through 26 March 1992. a. He displayed a pattern of misconduct ranging from missing formations to driving under the influence and acquiring stolen property. Based on his pattern 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. The separation authority showed leniency and potentially took into consideration his combat service when he directed the issuance of a general discharge vice an under other than honorable conditions discharge which was normally the appropriate discharge by regulation. b. His narrative reason for separation was assigned based on the fact that he was separated under the provisions of AR 635-200, chapter 14, for misconduct – patterns of misconduct. Absent his patterns 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" which is correctly shown on his DD Form 214. 2. There is no evidence in his record and he provided none to support that he sought BH treatment or had PTSD or any other BH condition during his military service. The only document he provided was the VA rating decision that granted him service-connected disability for PTSD. There is no medical evidence that shows a relationship between PTSD or any BH condition and the pattern of misconduct that led to his discharge. 3. The applicant’s contention that the OTSG advisory opinion did not state he served in combat is noted. However, his DD Form 214 does document his combat service in Southwest Asia and is a matter of official record. He received a corrected copy of the OTSG advisory opinion wherein it shows only his available medical service record was reviewed. He acknowledged the corrected copy. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150004572 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150004572 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2