IN THE CASE OF: BOARD DATE: 21 July 2016 DOCKET NUMBER: AR20150008539 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 July 2016 DOCKET NUMBER: AR20150008539 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 July 2016 DOCKET NUMBER: AR20150008539 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 discharge under other than honorable conditions (UOTHC). 2. The applicant states: * his actions were due to duress and immortality during his military tenure * he volunteered for special forces training with the 82d Airborne Division after he graduated from basic combat training and enjoyed his military experience at that time * during airborne training with the 82d Airborne Division, he was kicked out of the airplane and he banged against the side of the airplane until someone came out and helped him off the tail of the airplane * his girlfriend contacted him during training and informed him she was pregnant and experiencing complications * he requested leave to be with his girlfriend at the time of delivery, but his request was denied * one day he left the installation after formation and did not return for approximately 43 days * his parents informed him the military police were looking for him and advised him to turn himself in, but by that time he had already been incarcerated at the Baltimore City Jail for 30 days * while incarcerated, the military police picked him up and returned him to the temporary stockade at Fort Meade, MD * while in the stockade, he was required to report for formation and work in the laundry * during this assignment, he experienced having several body parts fall from the sheets as he shook them * this experience was horrific and so traumatizing that he left after formation * today, more than 40 years after these events, he regrets the way he handled things and is throwing himself at the mercy and compassion of the Board * he served a continuous period of at least 180 days and requests consideration for an upgrade of his discharge to enable him to receive Department of Veterans Affairs (VA) benefits per Title 38, Code of Federal Regulations, section 3.12(c)(6) * he would like to know how post-traumatic stress disorder (PTSD) is measured * he would like a personal appearance hearing 3. The applicant provides: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * DD Form 4 (Enlistment Contract – Armed Forces of the United States) * Armed Forces Examining and Entrance Station, Baltimore, Special Order Number 191, dated 29 September 1970 * Replacement Detachment, 82d Airborne Division, letter to his father * DA Form 188 (Extract Copy of Morning Report), dated 7 June 1971 * DA Form 188, dated 28 October 1971 * First Army Area Form 515 (Transmittal of Court-Martial Charges), dated 1 November 1971 * Standard Form 88 (Report of Medical Examination), dated 10 November 1971 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * DA Form 20 (Enlisted Qualification Record) * National Personnel Records Center letter, dated 1 March 2007 * VA Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits), dated 4 May 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 29 September 1970. 3. The DA Form 188, dated 7 June 1971, shows he was reported as absent without leave (AWOL) effective 15 April 1971 and dropped from the rolls of the organization on 7 June 1971. 4. In an undated letter from the Commander, Replacement Detachment, 82d Airborne Division, the applicant's father was informed of his AWOL beginning 7 June 1971. The commander advised his father that AWOL was a serious military offense punishable by court-martial. 5. An undated memorandum to the Commanding General, 82d Airborne Division from the Commander, Replacement Detachment, subject: Commander's Inquiry, states an informal investigation was conducted to determine why the applicant absented himself from his unit without authority. The investigation did not indicate any unique domestic or financial difficulties or coercion on the part of the command as causative factors. It was the commander's opinion that the applicant's absence was the direct result of gross immaturity and a failure to accept responsibility and routine peculiar to Army life. 6. Item 38 (Record of Assignments) of his DA Form 20 shows in he was reassigned to the U.S. Army Personnel Control Facility, Fort Meade, MD, effective 22 October 1971. 7. The Transmittal of Court-Martial Charges, dated 1 November 1971, shows trial by special court-martial was recommended. The charge sheet is not in his available records for review. 8. His Standard Form 88 and Standard Form 93 (Report of Medical History), both dated 10 November 1971, show no indication of any medical conditions or impairment, to include mental health issues or PTSD-like symptoms. 9. His discharge packet containing the complete facts and circumstances surrounding his discharge is not in his available records for review. 10. His DD Form 214 shows he was discharged for the good of the service on 27 December 1971 under the authority of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. His service was characterized as UOTHC. He completed 8 months and 19 days of active service with 190 days of lost time from 15 April 1971 through 21 October 1971. 11. There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 12. He provided a copy of his Application for Disability Compensation and Related Compensation Benefits, dated 4 May 2015. He does not list any claimed disabilities or dates and locations of treatment he received. 13. The Army Review Boards Agency sent him a letter on 28 March 2016, requesting copies of any medical documents that support his claim of PTSD. He did not provide a response or any medical documents. 14. His records are void of any reference to disabilities, injuries, diagnoses, or medical treatments. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10, in effect at the time, provided that a member who had committed an offense or offenses for which the authorized sentence included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges were preferred. Although an honorable or general discharge could be directed, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. b. 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. 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. 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." 3. 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. 4. 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. 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 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. 6. 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. 7. Board for Correction of Military/Naval Records (BCM/NR) 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? 8. 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. 9. Title 38, Code of Federal Regulations, section 3.12, provides that pension, compensation, or dependency and indemnity compensation is not payable unless the period of service on which the claim is based was terminated by discharge or release under conditions other than dishonorable. A discharge under honorable conditions is binding on the VA as to the character of discharge. Section 3.12(c)(6) states benefits are not payable where the former service member was discharged UOTHC as a result of AWOL for a continuous period of at least 180 days. This bar to benefit entitlement does not apply if there are compelling circumstances to warrant the prolonged unauthorized absence. However, if a person was discharged or released by reason of the sentence of a general court-martial, only a finding of insanity or a decision of the ABCMR established under Title 10, U.S. Code, section 1552, can establish basic eligibility to receive VA benefits. 10. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. The applicant's request for an upgrade of his discharge UOTHC was carefully considered. 2. Although the applicant requested to personally appear before the Board, there is sufficient evidence available for fair and impartial consideration of his case without such an appearance. 3. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10. Although the specific facts and circumstances surrounding his discharge are not available, the evidence shows he was charged with being AWOL for 190 days from 15 April 1971 through 21 October 1971, an offense punishable under the Uniform Code of Military Justice that could have resulted in a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge from the Army to avoid trial by court-martial. 4. There is no evidence that indicates he was not properly and equitably discharged in accordance with the regulations in effect at the time, that all requirements of law and regulations were not met, or that his rights were not fully protected throughout the separation process. 5. 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. 6. 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. 7. Although he claims he was injured in airborne training and experienced a traumatic event while confined in the stockade, there is no evidence to support these claims. A review of his military records and the evidence he provided shows no diagnosis of or treatment for PTSD or PTSD-like symptoms. Absent such evidence, regularity must be presumed with regard to his discharge and 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) AR20150008539 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150008539 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2