BOARD DATE: 3 November 2016 DOCKET NUMBER: AR20150009136 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF __x_____ __x______ _x_____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 3 November 2016 DOCKET NUMBER: AR20150009136 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that he was discharged on 23 December 2004 with a general, under honorable conditions characterization of service in rank/pay grade specialist/E-4 with an effective date of rank of 6 February 2003. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application in excess of the relief described above. ___________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: 3 November 2016 DOCKET NUMBER: AR20150009136 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 characterization of service from under other than honorable conditions (UOTHC) to honorable or general, under honorable conditions. 2. The applicant states, in effect, that he went absent without leave (AWOL) for 6 months in 2004 because he had post-traumatic stress disorder (PTSD) and he was not getting any help from his unit. In 2013, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge, but the ADRB denied his request finding no evidence of PTSD. He states that the Veterans Affairs (VA) has rated him as 70 percent disabled for service-connected PTSD. 3. The applicant provides: a. Three pages of a 28 March 2015 VA letter informing him of his benefits and showing that he has 70 percent service-connected disability rating for PTSD. b. Selected pages from his VA medical records created during the period 26-31 March 2014 showing that he was diagnosed with and receiving treatment for service-connected PSTD. 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 6 February 2001 for a 3-year period of service. After completing basic and advanced training at Fort Knox, he was assigned to the 3d Infantry Division at Fort Benning. He served as an armor crewman and was advanced to specialist (E-4) effective 6 February 2003. On 20 February 2003, while deployed, he reenlisted for a 3-year period of service for the current station stabilization reenlistment option. 3. The applicant served with elements of the 3d Infantry Division in two deployments: Kosovo for 6 and 1/2 months from 25 October 2001 to 7 May 2002, and Iraq for 3 months from 6 January 2003 to 17 April 2003. 4. The applicant returned to Fort Benning from deployment to Iraq in April 2003. A year later, the applicant went AWOL from 22 March 2004 to 22 September 2004. He turned himself in. On 15 October 2004, the applicant was charged with violation of Article 85, Uniform Code of Military Justice (UCMJ), for being AWOL. On 8 November 2004, the applicant requested by signed memorandum discharge under chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in lieu of trial by court-martial. On 8 November 2004, he was counseled by a military defense counsel, a Judge Advocate Corps (JAG) captain. He initialed each paragraph of the counseling of his rights and signed the counseling. He acknowledged that he might be discharged under other than honorable conditions and that, as a result, he might be ineligible for VA benefits. 5. In support of his request for discharge in lieu of court-martial, the applicant submitted a statement in which he acknowledged the error of being AWOL. He stated he never wanted to be any trouble to his chain of command but he felt that his wife's life was hanging in the balance. She was recovering from rape trauma. He stated he was never sure when he left her for long periods of time, if she would be there when he got back or if she might try to end her life. The applicant stated he needed time to try to help her regain her emotional stability. He stated he was not avoiding any type of duty or even avoiding a deployment. He stated that he deployed to Kuwait and Iraq and would gladly have deployed again if his wife had not been raped and experienced so many bad side effects. 6. The applicant’s military attorney wrote a memorandum providing additional detail. He stated that the applicant was very remorseful about his decision to go AWOL. The applicant came back on his own to take responsibility for his actions. His AWOL began as a result of the stress he was under due to his wife's emotional instability after a brutal rape. Her reaction to her rape was very severe. His wife suffered from separation anxiety when the applicant was away. She relapsed into a depressed state and had suicidal thoughts when he was gone. The applicant’s wife would not go to counseling unless the applicant was there to support her. The applicant’s mother-in-law, a registered nurse, spoke very highly of the applicant’s care for her daughter and the positive effect his presence had on her. 7. The applicant’s wife, mother-in-law, and the wife’s psychologist provided statements that supported the attorney's statement. The mother-in-law also provided information that the applicant’s mother suffered from multiple sclerosis which was worsening and creating financial burden on the applicant’s family. 8. On 24 November 2004, the commander of the Headquarters, U. S. Army Infantry Center and Fort Benning, approved the applicant’s discharge in lieu of trial by court-martial under Army Regulation 635-200, chapter 10, with service characterized as under conditions other than honorable, and directed the applicant’s reduction to the lowest enlisted grade. The applicant was so discharged on 23 December 2004. 9. The applicant's record is void of any evidence of misconduct occurring prior to his period of AWOL. 10. In 2013, the applicant applied to the ADRB requesting that his characterization of service be upgraded to honorable or general, contending that his UOTHC discharge was unjust under the circumstances. He contended that he had PTSD after returning in 2003 from deployment to Iraq. The ADRB reviewed the applicant’s military records and chapter 10 discharge process and found no error or inequity. The ADRB found no evidence in the record that the applicant suffered from PTSD at the time of his AWOL and discharge. On 19 June 2013, the ADRB denied the applicant’s request. 11. No military medical treatment records were provided by the applicant to this Board for review. The applicant did provided a 28 March 2015 VA decision on benefit entitlements showing that he has 70 percent service-connected disability rating for PTSD and selected pages from VA medical consult requests during the period 26-31 March 2014 showing that he was diagnosed with and receiving treatment for service-connected PTSD. 12. The Army Review Boards Agency (ARBA) clinical psychologist reviewed the applicant’s application and supporting VA documents. No military service medical records were available. The psychologist observed that the applicant stated to the VA that his PTSD stemmed from his 2003 deployment to Iraq where he felt guilt from "running over" deceased enemy and from exposure to an explosion which injured a battle buddy. The psychologist also observed on his application to this Board and on his prior application to the ADRB, that the applicant stated he went AWOL because his PTSD concerns were not taken seriously when he returned home from deployment and he did not receive treatment. The psychologist opined that, despite the absence of medical and behavioral health records from his military service, the severity of applicant’s post service PTSD impairment and his need for continued supportive services suggest it is more likely than not that a behavioral health condition mitigated the misconduct that led to his separation. 13. The advisory opinion was mailed to the applicant for rebuttal and comment. It was mailed to the address given by him on his application. The mail was returned as undeliverable. REFERENCES: 1. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10, in effect at the time, states that a Soldier who has committed an offense punishable by court-martial may request discharge for the good of the service in lieu of trail by court-martial. It also states that Soldiers discharged under this chapter will normally be given a UOTHC characterization of service. a. Chapter 3 states 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. b. Chapter 3 also states 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. 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. 3. The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, 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. 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. (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. (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. (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). (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 (6) Sleep disturbance f. Criterion F, duration: Persistence of symptoms (in Criteria B, C, D, and E) for more than one 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. 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 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 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 of time. 5. In view of the foregoing, on 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards 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 applicant's service. 6. 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. 7. 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 UOTHC 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 UOTHC. a. 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. b. PTSD is not a likely cause of premeditated misconduct. c. 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 states in his application to this Board that his 6-month AWOL which led to his UOTHC discharge was because he had PTSD as a result of deployment to Iraq and he was not getting any help from his unit with his PTSD after his return from deployment. In the statement he submitted with his request for discharge in lieu of trial by court-martial, he indicated he went AWOL to help his wife who was recovering from rape and to prevent her possible suicide, a situation for which he was not receiving any help from his command. This reason for AWOL was attested to by his military attorney, his wife, and his mother-in-law. He made no statements at that time about any combat-related or deployment-related PTSD issues. 2. There are no military medical records indicating he had been diagnosed with PTSD or had exhibited symptoms of PTSD prior to his discharge. In 2013, the VA determined that he had service-connected PTSD rated as 70 percent disabling. 3. The applicant stated to the VA that his PTSD symptoms stemmed from his 2003 deployment to Iraq where he felt guilt from running over deceased enemy and from exposure to an explosion which injured a battle buddy. In the VA documents provided, there is no mention of his wife’s mental state as the reason he went AWOL. 4. The ARBA psychologist opined that, despite the absence of medical and behavioral health records from his military service, the severity of applicant’s post-service PTSD impairment and his need for continued supportive services suggest it is more likely than not that a behavioral health condition mitigated the misconduct that led to his separation. 5. The applicant’s military record is devoid of any evidence of misconduct other than the AWOL. He did serve in combat deployments to Kosovo and Iraq. He did reenlist while deployed, having served honorably. 6. The evidence would support a recommendation to upgrade the applicant's characterization of service to general, under honorable conditions (which would also have the effect of restoring his rank/grade to specialist (E-4)). The same evidence indicates that his service did not rise to the level required for a fully honorable characterization of 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) AR20150009136 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009136 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2