IN THE CASE OF: BOARD DATE: 22 September 2015 DOCKET NUMBER: AR20150008177 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: 22 September 2015 DOCKET NUMBER: AR20150008177 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: 22 September 2015 DOCKET NUMBER: AR20150008177 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 general discharge to an honorable discharge. 2. The applicant states: a. He was recently diagnosed with post-traumatic stress disorder (PTSD). He is being compensated by the Department of Veterans Affairs (VA) and is rated at 30 percent due to a service connected disability. The PTSD stressor was determined to be combat-related during Desert Storm in 1991. In 1992, he was arrested for shoplifting that ultimately led to his discharge for the good of the service. Prior to Desert Storm, he never participated in any type of criminal behavior. However, shortly after returning from Desert Storm he engaged in compulsive and reckless behavior. It is his assertion that PTSD led to the behavior that cost him his military and later law enforcement careers. b. His discharge should be upgraded to honorable to reflect his actual service record and not one incident. He was unaware of the effects of PTSD until recently. Once he became aware of the symptoms and effects, the reasons for some of his previously inexplicable behaviors became obvious. 3. The applicant provides his HealtheVet Personal Health Record. 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 the cases 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. 2. The applicant enlisted in the Regular Army (RA) on 19 July 1988 and he held military occupational specialty 11M (Fight Vehicle Infantryman). He served in Saudi Arabia from 2 January to 19 May 1991 and in Germany from 20 May to 15 September 1991. 3. He was honorably discharged on 5 December 1991 for the purpose of immediate reenlistment. He reenlisted in the RA on 6 December 1991 for 3 years. He was promoted to pay grade E-5 on 1 May 1992. 4. His records contain a DA Form 3976 (Military Police (MP) Report), dated 13 December 1992, showing he was observed on 12 December 1992 concealing two Nintendo game cartridges in his pants without rendering due payment. He was detained and escorted to the Post Exchange security office where the merchandise was recovered. He was apprehended and transported to the MP investigation office where he was advised of his rights, which he waived, and rendered a written statement admitting to the offense. He was cited and released to his unit. 5. On 18 December 1992, the Staff Judge Advocate opined that there was sufficient evidence to title the applicant with larceny. 6. On 2 February 1993, a DD Form 458 (Charge Sheet) was completed by the Commander, Company C, 369th Signal Battalion, 15th Signal Brigade, Fort Gordon, GA, charging the applicant with one specification of stealing from the Main Exchange on or about 12 December 1992, a total value of about $115.90. 7. On the same date, the applicant's chain of command recommended trial by special court-martial empowered to adjudge a bad conduct discharge. 8. On 10 February 1993, the applicant requested, in reference to his pending separation, an honorable discharge. He stated that he did not deny his wrong doing nor did he condone it. He had compromised his noncommissioned officer values and the standards to which all Soldiers were held. 9. On 12 February 1993, after consulting with counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service. He acknowledged that counsel fully advised him that he was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) (court-martial) with a punitive discharge. He also acknowledged that he could be discharged under other than honorable conditions and the result of the issuance of such a discharge. He waived his rights and elected not to submit a statement in his own behalf. 10. On 22 February 1993, the separation authority approved the applicant’s request and directed the issuance of a general discharge. 11. He was discharged accordingly in pay grade E-5 on 5 March 1993. He completed 4 years, 7 months, and 5 days of active service. His service was characterized as under honorable conditions (general). 12. On 18 November 1996, the Army Discharge Review Board denied his request for a change in the character and/or reason for his discharge. 13. He provided his HealtheVet Personal Health Record, dated 22 September 2015, showing during a VA Compensation and Pension (C&P) examination on 17 March 2014 he was diagnosed with PTSD rated at 30 percent. He was referred to a Primary Care Physician regarding anxiety/PTSD type issues and was receiving treatment. 14. On 5 August 2016, an advisory opinion was provided by Chief, Behavioral Health (BH) Division, Health Care Delivery, Office of The Surgeon General (OTSG). The OTSG official stated: a. The applicant requested that the Board upgrade his general discharge to an honorable discharge due to PTSD, noting that there was a 2 year period following his deployment during which he impulsively shoplifted items. The OTSG was asked to determine if PTSD or any other BH condition contributed to the misconduct leading to his discharge. This opinion was based on the information provided by the Board and records available in the Department of Defense (DOD) electronic medical record (AHLTA). b. The applicant told the VA that his memories of combat were repressed until his C&P examination in March 2014 where he was diagnosed with PTSD and observed to be "generally functioning satisfactorily." The VA granted a service-connection for PTSD with a disability rating of 30 percent. At his VA intake examination in June 2015, he was diagnosed with trauma-related stress disorder, depression, and anxiety. Later that month, he began participating in the VA Trauma Recovery Group. c. There was no evidence that the applicant met the criteria for PTSD during his military service. Furthermore, the presence of potentially untreated PTSD did not explain or directly mitigate his actions as PTSD was not reasonably related to impulsive behavior in the absence of flashbacks or other disordered thought processes of which there was no indication in this case. 15. The advisory opinion was provided to the applicant on 11 August 2016 for acknowledgement/rebuttal. He did not respond. REFERENCES: 1. AR 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. The regulation stated in: a. Chapter 10 – a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good the service in lieu of a trial. The regulation required that there have been no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel. The Soldier was required to sign the request indicating he understood he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof. The regulation required that the request be forwarded through channels to the general court-martial convening authority. An under other than honorable conditions discharge would normally be furnished to an individual who was discharged for the good of the service. b. Paragraph 3-7a – an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. 2. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, set forth policies, responsibilities, and procedures that apply in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. Paragraph 2-1 (Standards of unfitness by reason of physical disability) of the regulation stated that the mere presence of an impairment did not, of itself, justify a finding of unfitness because of physical disability. In each case considered, it was necessary to correlate the nature and degree of physical disability which was present with the requirements of the duties which the member reasonably could be expected to perform by virtue of his office, grade, rank, or rating. 3. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards and Service Board for Correction of Military/Naval Records to carefully considered the revised PTSD criteria, detailed medical consideration, and mitigating factors when taking actions on applications from former service members administratively discharged and who had 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. In these cases, PTSD was not recognized as a diagnosis at the time of service and, in many cases, diagnoses were not made until decades after service was completed. Quite often, however, the records of service members who served before PTSD was recognized do not contain substantive information concerning medical conditions in either Service treatment records or personnel records. Liberal consideration would also be given in cases where civilian providers confer diagnoses of PTSD or PTSD-related conditions, when case records contained narratives that supported symptomatology at the time of service, or when any other evidence which could reasonably indicate PTSD or a PTSD-related disorder existed at the time of discharge which might had mitigated the misconduct. DISCUSSION: 1. The applicant was charged and acknowledged he had committed an offense punishable under the UCMJ (court-martial) with a punitive discharge. Discharge actions processed under the provisions of chapter 10 of AR 635-200 are voluntary requests for discharge in lieu of court-martial. He also acknowledged that he could be furnished an under other than honorable conditions discharge. The separation authority approved his discharge and he was separated with an under honorable conditions (general) discharge. He retained his E-5 pay grade. 2. His record is void of evidence showing he was ever diagnosed with PTSD or similar behavioral health conditions during his period of active duty service. The evidence does not indicate that PTSD prevented him from satisfactorily completing his second enlistment period. His offense diminished the quality of his service especially as a noncommissioned officer below that meriting a fully honorable discharge. 3. Given his characterization of service was under honorable conditions with no reduction in his pay grade, it appears his chain of command and the separation authority took mitigating evidence into consideration. Discharges under the provisions of chapter 10 typically results in an under other than honorable conditions characterization of service and a reduction in pay grade. 4. His administrative separation was accomplished in compliance with applicable regulations with no procedural errors that would tend to jeopardize his rights. He was properly discharged in accordance with pertinent regulations with due process. 5. Current standards provide for liberal consideration in cases where civilian providers confer diagnoses of PTSD or PTSD-related conditions, when case records contained narratives that supported symptomatology at the time of service, or when any other evidence which could reasonably indicate PTSD or a PTSD-related disorder existed at the time of discharge which might had mitigated the misconduct. 6. The OTSG determined, after review of the applicant's records and records available in the DOD AHLTA, that the presence of potentially untreated PTSD did not explain or directly mitigate his actions as PTSD was not reasonably related to impulsive behavior in the absence of flashbacks or other disordered thought processes of which there was no indication 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) AR20150008177 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150008177 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2