IN THE CASE OF: BOARD DATE: 3 November 2016 DOCKET NUMBER: AR20150010813 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: 3 November 2016 DOCKET NUMBER: AR20150010813 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: 3 November 2016 DOCKET NUMBER: AR20150010813 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. 2. The applicant states he admits that he made a bad decision. At the time, he was very unhappy and traumatized. His military record was pretty good until this isolated incident. There was no understanding or compassion in his case. He was under a great deal of trauma due to losing his best friend who was stabbed by another Soldier. He has post-traumatic stress disorder (PTSD) and needs assistance. 3. The applicant provides his post-service Department of Veterans Affairs (VA) progress notes. : 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 14 September 1975 and he held military occupational specialty 05C (Radio Operator). He was honorably discharged on 30 August 1978 for immediate reenlistment. 3. His DD Form 214 (Report of Separation and Record of Service) for this period shows he completed 2 years, 11 months, and 17 days of active service. 4. He reenlisted for a period of 3 years on 31 August 1978. He served in Korea from May 1978 to May 1979. He was promoted to sergeant/E-5 on 12 June 1979. He again reenlisted for a 6-year term on 20 June 1980 and served in Germany from November 1980 to November 1983. 5. The complete facts and circumstances of his discharge are not available for review with this case. However, his records contain: a. DA Forms 268 (Report of Suspension of Favorable Personnel Actions), dated 10 May 1983, signed by the Adjutant, 2nd Battalion, 2nd Air Defense Artillery, indicating the applicant was pending investigation by the U.S. Army Criminal Investigation Command (CID) and pending Uniform Code of Military Justice (UCMJ) action for possession of drugs. b. Orders 260-13, issued by Headquarters, U.S. Army Regional Personnel Center, Giessen, Germany, on 27 October 1983, ordering the applicant to report to the U.S. Army Separation Transfer Point at Fort Jackson, SC, on 4 November 1983 for separation under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). c. DD Form 214 (Certificate of Release or Discharge from Active Duty) shoeing he was discharged on 4 November 1983 in the rank/grade of private/E-1, in accordance with AR 635-200, chapter 10 (for the good of the service – in lieu of trial by court-martial) and with an under other than honorable conditions characterization of service. His DD Form 214 also shows in: * item 12 (Record of Service), he completed 5 years, 2 months, and 4 days of active service and he had 2 years, 11 months, and 17 days of prior active service * item 18 (Remarks), "Immediate Reenlistment This Period: 800620-831104" 6. There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 7. He provides his post-service VA progress notes. The Board forwarded his service and available medical records to the Army Review Boards Agency clinical psychologist who rendered an advisory opinion on 23 September 2016. a. On 9 June 2015, the applicant requested that the Board upgrade his discharge based on PTSD, claiming his discharge under other than honorable conditions was related to his mental health. He contends he criminalized himself by giving a false statement to authorities that he sold drugs to his friends, in order to separate from the military. Military records indicate he was pending a CID investigation for possession of drugs. Additional disciplinary concerns included a lack of motivation and initiative, difficulty adapting to change, lateness to formation, and failure to report during his time in service. He attributes behavior problems and poor decision making to trauma after losing his best friend who was stabbed in front of him at a bar by a female Soldier [history from VA progress notes]. He has difficulty getting images out of his head and has thoughts of how he should have been able to stop the assault. b. VA progress notes indicate a diagnosis of chronic PTSD and severe recurrent major depression with psychotic features. Details regarding the basis of PTSD diagnosis entail hypervigilance, emotional avoidance, flashbacks, nightmares, and feelings of guilt regarding not stopping friends? death. Other stressors include the incarceration of his two sons and medical problems. He also indicated hearing voices two to three times per week, visual hallucinations of seeing shadows, and intermittent suicidal thoughts. Treatment at the VA has included individual and group therapy to include an inpatient hospitalization in a Men’s Trauma Recovery Program for drug abuse in 2014. c. The Army Review Boards Agency clinical psychologist was asked to determine if there is a nexus between his PTSD diagnosis contained in his evidence and the misconduct that ultimately resulted in the applicant’s discharge. d. Based on thorough review of available medical records, there is no evidence that he met the medical criteria for PTSD during his military service. The presence of PTSD or depression during the time of his misconduct for possession of drugs, does not explain or directly mitigate his actions leading to a separation under chapter 10, AR 635-200. His military records are void of the specific facts and circumstances concerning his separation other than he was pending UCMJ action for possession of drugs. He contends he made a false statement regarding drugs, but there is no documentation detailing his statement or findings of UCMJ action. Without military records indicating basis of separation or other military service documents indicating exposure to trauma and its impact on functioning, an advisory opinion about him meeting the medical criteria for PTSD and whether or not this diagnosis mitigated his misconduct cannot be rendered. 8. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal and/or any additional comments. He did not respond. REFERENCES: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides that a member who has committed an offense or offenses 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. 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. 2. PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster. Military Sexual Trauma and Stalking are stressors that could lead to PTSD. 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." 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 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, 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 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. 7. 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? 8. 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 record is void of the complete facts and circumstances that led to his voluntary discharge. However, his record contains a DD Form 214 that shows he was discharged on 4 November 1983 under the provisions of chapter 10 of AR 635-200, in lieu of a court-martial. 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. 2. 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 his overall record of service. 3. There is no evidence that he met medical criteria for PTSD during his military service or that his misconduct was mitigated by a behavioral health condition. The evidence indicates his service during his final enlistment did not meet the standards of acceptable conduct and performance of duty for Army personnel required for a general or an 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) AR20150010813 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010813 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2