IN THE CASE OF: BOARD DATE: 25 October 2016 DOCKET NUMBER: AR20150009123 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 October 2016 DOCKET NUMBER: AR20150009123 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 October 2016 DOCKET NUMBER: AR20150009123 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, in effect, a correction to her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show she was medically separated. 2. The applicant states her official military personnel records, medical records, and finance records are in error. In the interest of justice and in light of recent changes concerning post-traumatic stress disorder (PTSD) for war veterans, her discharge should be reviewed and appropriate corrections made. a. Her characterization of service is in error or unjust because she had significant medical and mental illnesses prior to her permanent change of station in June 1989. She should have been processed for a medical or disability separation instead receiving a discharge under other than honorable conditions. b. Her Department of Veterans Affairs (VA) claim was processed on 7 June 1994, but she did not receive it until September 2007, when she filed a Freedom of Information Act (FOIA) request to the VA. This delay prevented her from applying to the Board. c. Medical treatment (U.S. Army and VA) was withheld and did not disclose her major medical problems, allowing both agencies to deny her benefits from her date of discharge to present day. There are multiple contributing factors that caused the errors and/or injustice. The most damage occurred after the Social Security Administration awarded her disability entitlements. 3. The applicant provides her VA medical records, correspondence, selected service medical records, and her DD Form 214. 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 30 August 1978 and she held military occupational specialties 71L (Administrative Specialist) and 96D (Imagery Specialist). 3. She served through multiple reenlistments in a variety of stateside or overseas assignments including Southwest Asia from 18 December 1990 to 12 April 1991. 4. The complete facts and circumstances surrounding the applicant’s discharge action are not available for review with this case. However, her record contains a DD Form 214 that shows she was discharged on 31 March 1993 under the provisions of chapter 10 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), for the good of the service - in lieu of court-martial, with a character of service of under other than honorable conditions. She completed 14 years, 7 months, and 1 day of active service. 5. There is no evidence in her service record indicating she had a permanent physical profile or underwent a separation physical. 6. There is no indication she applied to the Army Discharge Review Board for an upgrade of her discharge within that board’s 15-year statute of limitation. 7. She provides selected service medical records as well as VA medical records and/or correspondence related to her service-connected disability claim. The Board forwarded the applicant's documentation to the Army Review Boards Agency clinical psychologist for review. The clinical psychologist stated: a. VA records show that on or about 12 July 1991 the applicant was charged with writing bad checks which she attributed to a gambling problem. She contends she was not given proper counseling for her gambling problem prior to her discharge. In a letter to the VA dated 2 June 1993, she described gambling as a morale, welfare, and recreational activity she came to abuse. She received no rehabilitation assistance. b. A VA letter requesting more information, dated 7 December 2005, identified stressors contributing to a PTSD diagnosis included a surface-to-surface missile system (SCUD) attack while deployed and the attempted suicide of a unit member. There was no additional information provided about these events or how the diagnosis impacted her functioning. A second letter from the Fayetteville, NC, VA Medical Center, dated 6 March 2007, provided a review of her medical history to include diagnoses of PTSD; major depression; and personality disorder, not otherwise specified, given on 30 September 2004. There were no details regarding symptom severity, percentage ratings, or documentation showing she received continued treatment through the VA. c. The Army Review Boards Agency Clinical Psychologist was asked to determine if there is a nexus between the (PTSD) information/diagnoses contained in documentation and the misconduct that resulted in the applicant’s discharge. This opinion is based on the information provided by the Board as the Department of Defense (DOD) electronic medical record was not in use at the time of her service. Based on thorough review of available medical records, there is no evidence that the applicant met criteria for PTSD during her military service or that her misconduct was mitigated by a behavioral health condition. The presence of potentially untreated PTSD during her time in service does not mitigate her actions, as the nature of PTSD symptoms is not reasonably related to the misconduct of writing bad checks. 8. The applicant was provided with a copy of this advisory opinion to give her an opportunity to submit a rebuttal and/or any additional comments. She did not respond. REFERENCES: 1. Manual for Courts Martial, Article 123a (Making, drawing, or uttering check, draft or order without sufficient funds) and Article 134 (Making, drawing, uttering or delivering a check, draft, or order, and thereafter wrongfully and dishonorably failing to maintain sufficient funds (lesser offense)) states the maximum punishment for a value of $500.00 or less is a bad conduct discharge, forfeiture of all pay and allowance, and confinement for 6 month. Punishment for a value more than $500.00 is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 5 years. 2. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, stated disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. Paragraph 4-3 stated that enlisted Soldiers may not be referred for, or continue, physical disability processing when action was started under any regulatory provision which authorized a characterization of service of under other than honorable conditions. 3. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Chapter 10 provided that a member who has committed an offense or offenses under the Uniform Code of Military Justice for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. A medical examination was not required by could be requested by the Soldier under the provisions of AR 40-501 (Standard of Medical Fitness). A Soldier who requests a medical examination must also have a mental status evaluation before discharge. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. a. Paragraph 1-14 stated that when a member was to be discharged under other than honorable conditions, the convening authority would direct an immediate reduction to the lowest enlisted grade. b. Paragraph 3-7a states that 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. 4. 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." 5. 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. 6. 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. 7. 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, 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. 8. 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 former service members administratively discharged under other than honorable conditions 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 applicant's service. 9. 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 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? 10. Although the 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 record 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 under other than honorable conditions characterization of service. Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of under other than honorable conditions. 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 applicant’s military record is void of the complete facts and circumstances that led to her voluntary request for discharge, although her VA record shows she reported gambling as a form of recreation and that she was discharged because she wrote bad checks. Conviction by court-martial for writing worthless checks could have resulted in a sentence to confinement for up to 5 years and a punitive discharge. 2. There is no evidence in her available records showing she received a permanent profile or that she requested a medical examination during the processing of her administrative discharge under the provisions of chapter 10, AR 635-200. At the time of her service she could have requested a medical examination during the processing of her separation. Further, regulatory guidance stated the processing of enlisted Soldiers through the disability evaluation system would stop when a Soldier was being considered for separation with a characterization of service of under other than honorable conditions. 3. Her record contains a DD Form 214 showing she was discharged on 31 March 1993 under the provisions of chapter 10 of AR 635-200, in lieu of a court-martial. Her character of service was under other than honorable conditions. The issuance of a discharge under the provisions of chapter 10, AR 635-200 required the applicant to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by a court-martial. 4. It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant has provided no information that would indicate the contrary. Further, it is presumed that the applicant’s discharge accurately reflects her overall record of service. 5. By regulation, she was not entitled to processing through the disability evaluation system. Additionally, based on a review of the medical documents she provided, there is no evidence she met the diagnostic criteria for PTSD during her military service or that her misconduct was mitigated by a behavioral health condition. 6. Her service appears to have not met the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also rendered her service unsatisfactory, which precluded characterizing her service as honorable or general, under honorable conditions. As she did not meet the criteria for processing through the physical disability evaluation system, there is no regulatory basis that would justify changing her narrative reason for separation to a separation based on medical unfitness. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009123 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009123 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2