BOARD DATE: 11 August 2016 DOCKET NUMBER: AR20150006745 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 BOARD DATE: 11 August 2016 DOCKET NUMBER: AR20150006745 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. BOARD DATE: 11 August 2016 DOCKET NUMBER: AR20150006745 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 due to mental health issues (post-traumatic stress disorder (PTSD)). 2. The applicant states 70 percent of his 80-percent service-connected Department of Veterans Affairs disability rating is for PTSD. 3. The applicant provides his 2015 VA rating decision and his 1989 DD Form 214 (Certificate of Release or Discharge from Active Duty). 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 July 1987 and he held military occupational specialty 76P (Materiel Control and Accounting Specialist). He was assigned to Fort Bragg, NC. 3. He was frequently counseled by members of his chain of command for various infractions, including: * leaving his guard post without being properly relieved * failing to show up for physical training * improper display of uniform * being absent without authority (AWOL) * failing to report to his appointed place of duty * displaying apathy * failing to report * missing and/or being late to formation 4. On 29 September 1988, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for missing movement. His punishment consisted of a reduction from pay grade E-2 to E-1 and extra duty. 5. He departed his unit in an AWOL status from 10 to 15 November 1988 and again from 21 November to 12 December 1988. 6. On 9 January 1989, 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 (missing movement, substandard appearance, leaving his place of duty, and failure to repair), which was prejudicial to the good order and discipline of the unit. The commander 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 waived consideration of his case by a separation board and/or a personal appearance before a separation board and 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. His intermediate commander recommended approval. 9. On 20 January 1989, 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 30 January 1989. 10. His DD Form 214 shows he was discharged under the provisions of paragraph 14-12b of AR 635-200 due to misconduct with a general characterization of service. He completed 1 year, 5 months, and 13 days of active service this period and he had lost time from 10 to 15 November 1988 and from 21 November to 12 December 1988. His DD Form 214 listed his narrative reason for separation as "Misconduct-Patterns of Misconduct" and the separation code as "JKM." 11. The applicant petitioned the Army Discharge Review Board for a review of his discharge after that board's 15-year statute of limitations. 12. He provides a VA rating decision, dated 13 January 2015, that shows he was awarded a service-connected disability rating effective 11 July 2014 for various conditions, including PTSD rated at 70 percent disabling. 13. The Board forwarded his VA rating decision 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 27 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. This official states: a. The applicant entered active duty on 21 July 1987 and he was discharged under honorable conditions on 30 January 1989 in accordance with AR 635-200, paragraph 14-12b due to misconduct, pattern of misconduct. In April 2015, the applicant requested that the Board upgrade his discharge due to mental issues he claimed he had while on active duty. OTSG was asked to review his record to determine if PTSD could have influenced his acts of misconduct. b. Although the Board requested the applicant provide the medical documentation in support of his PTSD claim, none was received. The only document he provided was the 2015 VA rating decision that granted service-connection for PTSD rated 70 percent disabling, effective 11 July 2014. There is no evidence of a relationship between PTSD or any behavioral health condition and the misconduct that led to his discharge. 14. The applicant was provided 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. The regulation in effect at the time of his discharge stated the SPD code of JKM was 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 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." 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. 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 21 July 1987 through 30 January 1989. a. He displayed a pattern of misconduct ranging from leaving his guard post without being properly relieved, failing to repair, being AWOL, and apathy, to missing movement. 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. 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" and the separation code associated with this discharge is "JKM," 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 had PTSD during his military service. The only document he provided was the 2015 VA rating decision that granted him service-connected disability for PTSD at 70 percent, effective 11 July 2014. There is no evidence of a relationship between PTSD or any behavioral health condition and the misconduct that led to his discharge. 3. The evidence does not indicate the existence of an error or injustice in the characterization of his service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150006745 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150006745 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2