IN THE CASE OF: BOARD DATE: 17 November 2016 DOCKET NUMBER: AR20150012355 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: 17 November 2016 DOCKET NUMBER: AR20150012355 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: 17 November 2016 DOCKET NUMBER: AR20150012355 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 under other than honorable conditions (UOTHC) discharge to honorable and the restoration of full benefits. 2. He states he held the rank/pay grade of master sergeant (MSG)/E-8 and he was a Ranger and Special Forces qualified. In 1993, he deployed to Mogadishu, Somalia, with Task Force Ranger and rescued pilots from two Blackhawk helicopters that were shot down. During this mission, he was shot seven times in the stomach and once in the left leg. He died three times prior to arriving at the hospital. He had to have surgery and was on narcotic pain medication. He does not remember much from that time due to being heavily medicated. However, other wounded Soldiers informed him that a general officer entered his room and said that the men did not act like Rangers during the mission and he got up and punched the general officer in the jaw because of the general's comments; he does not remember the incident. He was later convicted by a court-martial for attacking the general officer. His awards include the Distinguish Service Cross, Silver Star, Bronze Star Medal, three Purple Hearts, Combat Infantryman Badge, and other awards. 3. The applicant provides his self-authored statement and medical records. 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 4 April 1980 and he held military occupational specialty 11H (Heavy Antiarmor Weapons Specialist). 3. His disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on the following occasions: * 27 January 1981 for being absent without leave on or about 31 December 1980 to on or about 7 January 1981 * 2 June 1981 for willfully damaging government property by punching a hole in the wall of the latrine and failing to go at the time prescribed to his appointed place of duty on 14 May 1981 4. The applicant's record is void of any evidence to show he was deployed, wounded, or assigned anywhere other than Fort Benning, GA; Fort Ord, CA; and Fort Hunter Liggett, CA. 5. On 10 May 1982, a district court convicted him of aggravated robbery and sentenced him to confinement for 12 years in the Texas Department of Corrections. 6. On 11 June 1982, the applicant was notified that action was initiated under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, to separate him from the Army for conviction by civil court. He was also informed that the action was suspended so he could exercise his rights to request his case be reviewed by a board of officers, to submit statements in his own behalf, to be represented by counsel, or to waive his rights in writing. 7. On 8 September 1982, the Commander, Personnel Control Facility, U.S. Army Field Artillery Center, For Sill, OK, recommended the applicant appear before a board of officers under the provisions of Army Regulation 635-200, chapter 14, (unless the applicant waived this right) for the purpose of determining whether he should be discharged before the expiration of his term of service. 8. On an unknown date, after being advised of the basis for the contemplated separation action and its effects and the rights available to him, he waived consideration of his case by a board of officers, waived representation by counsel, and elected not to submit a statement. He acknowledged he understood that as a result of the issuance of a discharge UOTHC, he could be ineligible for many or all benefits administered by the Veterans Administration, he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could encounter substantial prejudice in civilian life. 9. On 24 September 1982, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-200, chapter 14 and directed the issuance of a UOTHC Discharge. 10. On 4 October 1982, he was discharged under the provisions of Army Regulation 635-200, chapter 14, misconduct - conviction by civilian authorities with a characterization of service listed as UOTHC. He completed 1 year, 3 months, and 3 days of creditable active service, with lost time from 31 December 1980 to 6 January 1981, 10 November to 10 December 1981, and 11 December 1981 to 4 October 1982. His DD Form 214 also shows the: * Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) * Sharpshooter Marksmanship Qualification Badge with Hand Grenade Bar * Sharpshooter Marksmanship Qualification with Missile Bar * Army Service Ribbon 11. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 12. The applicant provides numerous medical documents that show: a. On 21 May 2005, the applicant was voluntarily admitted to the hospital for a suicidal threat with a plan to shoot himself. He was diagnosed with personality disorder, not otherwise specified; major depression, recurrent, moderate severity; post-traumatic stress disorder (PTSD) by history; cluster headaches/migraine headaches; and chronic pain at the time of his discharge on 25 May 2005. b. An Adult Intake Assessment, dated 3 February 2014, shows the applicant self-referred to the Memphis Mental Health Institute. During his assessment, he talked about things he experienced in the Army in Special Forces and the medals he won. The physician recorded his accidents as "multiple related to military duty in Panama, Desert Storm, and Somalia." c. On 17 April 2015, the applicant was admitted to the Memphis Mental Health Institute with psychotic disorder and delusional thinking. He stated that he served in the military and he suffers from PTSD. d. On 23 April 2015, an Adult Intake Assessment shows the Memphis Mental Health Institute referred the applicant, where he was hospitalized from 5 to 20 April 2015, for psychotic symptoms. Records do not elaborate on psychosis, but emphasize PTSD and depression. Additionally, the physician listed the applicant's major accident as "gunshot wound 1989, 1991, and 1993" and major surgeries as "surgery to remove bullets from being shot in the war." He was diagnosed with PTSD, major depression, recurrent, severe, with mood incongruent psychotic features, and unspecified alcohol dependence, in remission. e. On 7 May 2015, the applicant attended a group therapy session in which he talk about his own brain damage and his survivor's guilt form warfare. "He talked about being told he 'died' on the operating table by his doctors." f. On 3 June 2015, the applicant was seen at the Community Physician Network Family Medicine Care for, in pertinent part, depression and anxiety. His current health problems included PTSD as of 2 July 2012. The physician prescribed medication for his PTSD. 13. On 24 August 2016, the ABCMR obtained an advisory opinion from a psychiatrist, Army Review Boards Agency (ARBA), who states the evidence provided does not support the applicant's request for upgrade. She states: a. The applicant served on active duty from 4 April 1980 to 4 October 1982 at which time he was discharged with a UOTHC discharge in accordance with Army Regulation 635-200, chapter 14, for misconduct - conviction by civilian authorities. At the time of his discharge, he had been convicted in a civilian court of aggravated robbery and sentenced to 12 years imprisonment. He is now applying to the ABCMR to request an upgrade of his discharge to honorable contesting that he developed PTSD while in the military. b. In his personal statement, the applicant states he was a Ranger and was Special Forces qualified. He reports he was sent to Mogadishu, Somalia in 1993 with Task Force Ranger. While there, he helped rescue injured men from a helicopter accident and was shot eight times in the process. He reports he was sent to Walter Reed Army Medical Center where he underwent surgery. Several days after surgery, he was heavily sedated when a general officer visited the ward. He states he arose out of bed, hobbled over to the general, and punched him in the jaw. He reports he was court-martialed because of this behavior and was taken to the D.C. Memorial Charity Hospital after the court-martial and subsequently released "as a nobody, a nothing." He goes on to state that he has brain damage from hypoxia, PTSD, night terrors, constant pain and extreme duress. c. The medical documentation provided by the applicant indicates that he has been diagnosed by a civilian providers with PTSD based on the aforementioned history. The applicant's military records stand in stark contrast to his personal statement. His records indicate he was a heavy antiarmor weapons specialist who served his entire military service stateside. There is no indication he was ever assigned to Somalia. His records further show he was in the Army from 4 April 1980 to 4 October 1982, at which time he was discharged and incarcerated in a civilian prison for aggravated robbery. The applicant was not in the military in 1993 as he indicates in his personal statement. d. There is no documentation in his military records that show the applicant met criteria for PTSD or any other psychiatric disorder while he was in the Army. There is also no evidence in the available military records that he was unable to tell right from wrong or he failed to meet military medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness) and following the provisions set forth in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant's era of service. 14. On 3 October 2016, the advisory opinion was forwarded to the applicant for his acknowledgement and/or response. No response was received. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge UOTHC is normally appropriate for a Soldier discharged under this chapter. b. An honorable discharge is given when the quality of the Soldier’s service has generally met the standards of acceptable conduct and duty performance. 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. PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster. The Diagnostic and Statistical Manual of Mental Disorders (DSM) is published by the American Psychiatric Association (APA) 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. 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. 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 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. 6. 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 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. 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 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 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. 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 argues that the ABCMR should upgrade his discharge because his indiscipline was based on PTSD. 2. The evidence of record shows a civilian court convicted him of aggravated robbery and sentenced him to confinement for 12 years in the Texas Department of Corrections on 10 May 1982. He was subsequently notified that action was initiated to separate him from the Army under chapter 14, for conviction by civil court. 3. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. His discharge accurately reflects his overall record of service. 4. The review of the applicant's case by the psychiatrist found no documentation in his military records that shows he met criteria for PTSD or any other psychiatric disorder while he was in the Army. Additionally, there was no evidence in the available military records that shows he was unable to tell right from wrong or he failed to meet military medical retention standards that were applicable at the time. 5. In regards to his request to restore his benefits, the ABCMR does not grant requests for discharge upgrades solely for the purpose of making an applicant eligible for veterans' benefits. Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge. Additionally, granting veterans' benefits is not within the purview of the ABCMR. Therefore, any questions regarding benefits should be addressed to the Department of Veterans Affairs. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012355 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012355 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2