IN THE CASE OF: BOARD DATE: 12 January 2017 DOCKET NUMBER: AR20150013504 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 IN THE CASE OF: BOARD DATE: 12 January 2017 DOCKET NUMBER: AR20150013504 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20070009806, dated 29 November 2007. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: * reissuing the applicant a DD Form 214 showing his characterization of service as "general, under honorable conditions" with an effective date of 9 September 1992 * correcting the above DD Form 214 to show his rank/pay grade as sergeant/E-5 with a date of rank of 3 December 1991 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 that pertains to upgrading his under other than honorable conditions discharge to an honorable discharge. ___________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: 12 January 2017 DOCKET NUMBER: AR20150013504 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, reconsideration of his previous request for an upgrade of his discharge to fully honorable based on his post-traumatic stress disorder (PTSD) diagnosis. 2. The applicant states, in addition to a description of his military service and the things that were going on around him, that he is currently seeing a psychiatrist and has spent time in a psychiatric facility through the Department of Veterans Affairs (VA). He cannot hold a job for too long or be involved in a decent relationship. He feels cheated out of his destiny as he could still be in the military. He finds it hard to watch the news knowing that he could have been doing his part. He misses his Army family and is now a loner. He wants his dignity and honor returned. He accepts full responsibility for his actions at the time. He was under pressure and his options were limited. 3. The applicant provides a VA progress note, dated 21 July 2011, showing he was diagnosed with PTSD and major depressive disorder, recurrent due to exposure to war. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABMCR) in Docket Number AR20070009806 on 29 November 2007. 2. Based on the applicant's claim that he has PTSD, his application is being reviewed under the 2014 Secretary of Defense's guidance to Military Boards for Correction of Military Records (BCMR)/Naval Records (NR). 3. The applicant enlisted in the Regular Army (RA) on 8 July 1987, with prior USAR enlisted and ROTC service. He held military occupational specialty (MOS) 94B (Food Service Specialist). He was assigned to the 407th Supply and Transportation Battalion, 82nd Airborne Division, Fort Bragg, NC. 4. He was honorably discharged on 4 December 1989, for the purpose of immediate reenlistment. He reenlisted in the RA on 5 December 1989 for 6 years. He was promoted to staff sergeant (SSG)/E-6 on 6 April 1990. 5. He served in Southwest Asia from 31 August 1990 to 3 April 1991. 6. On 21 May 1991, he was issued a Letter of Reprimand for failing to be at his prescribed place of duty (formation). 7. On 3 December 1991, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for dereliction of duties and willfully disobeying a lawful order from his senior NCO on 19 November 1991 and being AWOL from 20 to 25 November 1991. His punishment consisted of a reduction to the rank/pay grade of sergeant (SGT)/E-5, a suspended forfeiture of $534 pay for 2 months, and 45 days of extra duty. 8. He was reported AWOL on 5 December 1991. 9. On 11 December 1991, his appeal of the NJP was denied and the suspended forfeiture of pay was vacated due to his AWOL status. 10. He was dropped from the rolls of his organization 5 January 1992. He was apprehended by civilian authorities on 20 July 1992 and he was returned to military control. 11. On 4 August 1992, a DD Form 458 (Charge Sheet) was completed by the Commander, Special Processing Detachment, Fort Knox, KY, charging the applicant with one specification of being AWOL from 5 December 1991 to 20 July 1992. On the same date, court-martial charges were preferred. 12. On 4 August 1992, after consulting with counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service. He acknowledged that he was knowingly, willingly and voluntarily AWOL. He also acknowledged that counsel fully advised him that he was charged with the commission of an offense punishable under the UCMJ (court-martial) with a punitive discharge. He also acknowledged that he could be discharged under other than honorable conditions, furnished an Under Other Than Honorable Conditions Discharge Certificate, and the result of the issuance of such a discharge. He waived his rights and elected not to submit a statement in his own behalf. 13. On 11 August 1997, the applicant's chain of command recommended approval of the applicant's request and the issuance of an under other than honorable condition discharge. 14. On 17 August 1997, the separation authority approved the applicant’s request and directed the issuance of an under other than honorable conditions discharge and reduction to pay grade E-1. 15. He was discharged accordingly on 9 September 1992. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 4 years, 6 months, and 12 days of active service and he had 233 days of lost time. His service was characterized as under other than honorable conditions. 16. His record does not contain any available medical records. 17. On 20 August 1996, the Army Discharge Review Board (ADRB) denied his petition for an upgrade of his discharge. 18. On 18 September 1996, the ABCMR denied his petition for an upgrade of his discharge. However, the Board determined his prior term of honorable service ending on 4 December 1989 should be declared a complete and unconditional separation. 19. On 19 November 1997, he was issued a complete and unconditional separation certificate. 20. On 14 October 2010 and 26 July 2011, the ABCMR advised him that his previous requests for reconsideration were acted upon in Docket Number AR20070009806 on 29 November 2007 and his current requests did not meet the criteria for reconsideration. 21. On 4 August 2015, the applicant submitted an application to this Board contending he was suffering from post-traumatic stress disorder (PTSD). On 23 May 2016, this Board requested the applicant provide medical documentation to support his contentions of PTSD. 22. In his response, he provided a VA progress note, dated 21 July 2011, wherein an examining psychology practicum student diagnosed the applicant with PTSD and major depressive disorder, recurrent, due to exposure to war and unemployment. A VA staff psychologist co-signed the form on the same date. 23. On 11 October 2016, an advisory opinion was provided by the Medical Staff Psychiatrist, ARBA. The ARBA psychiatrist stated: a. The applicant entered active duty on 8 July 1987 with MOS 94B. While on active duty, he was deployed to Southwest Asia during Operation Desert Shield/Storm from 31 August 1990 to 3 April 1991. He was discharged on [9 September] 1992 with an under other than honorable conditions discharge in accordance with (IAW) AR 635-200, chapter 10, for the good of the service in lieu of court-martial (he was AWOL from 5 December 1991 to 20 July 1992). He had applied several times in the past to both the ADRB and ABCMR requesting an upgrade of his discharge. In all instances, his application was denied. He is now reapplying to the ABCMR requesting upgrade of his discharge stating he has been diagnosed with PTSD by the VA. b. The ARBA psychiatrist was asked to review this case. The following documentation was reviewed: the applicant's current ABCMR application, a VA psychiatric progress note, a copy of the applicant's previously denied ABCMR packet, and the military personnel records. There are no medical records available for review. c. There is no documentation of PTSD or other behavioral health conditions in the applicant's military records. Review of the applicant's VA documentation indicated that the VA had diagnosed him with combat-related PTSD due to his service in Southwest Asia. d. There is no evidence of a completed Mental Status Evaluation in the record. There is no indication in the available record that the applicant failed to meet medical retention standards IAW chapter 3, AR 40-501 (Standards of Medical Fitness), and following the provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant's era of service. e. The lack of documentation of PTSD symptoms in the applicant's military records does not necessarily indicate that he did not have PTSD while in the military. It is not uncommon for PTSD to remain undiagnosed as symptoms are often not recognized by either the service member or his chain of command. The VA documentation provided by the applicant indicated that he has been diagnosed with combat-related PTSD due to his "exposure of war." f. In conclusion, it was the medical opinion of the ARBA psychiatrist that the applicant more likely than not suffered from undiagnosed PTSD while on active duty. Because PTSD can be associated with avoidant behaviors, there was a likely nexus between the applicant's PTSD and the offenses which resulted in his discharge from the Army (being AWOL). His PTSD was considered mitigating for the offenses which led to his under other than honorable conditions discharge from the Army. 24. The advisory opinion was provided to the applicant on 12 October 2016 for acknowledgement/rebuttal. He did not respond. REFERENCES: 1. AR 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. The regulation stated in: a. Chapter 10 – a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good the service in lieu of a trial. The regulation required that there have been no element of coercion involved in the submission of such a request and that the Soldier was provided an opportunity to consult with counsel. The Soldier was required to sign the request indicating he understood he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof. The regulation required that the request be forwarded through channels to the general court-martial convening authority. An undesirable discharge would normally be furnished to an individual who was discharged for the good of the service. b. Paragraph 3-7a – an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. c. Paragraph 3-7b – a general discharge was a separation from the Army under honorable condition. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. Paragraph 1-13 (Reduction in Grade) – When a Soldier was to be discharged under other than honorable conditions, the separation authority would direct an immediate reduction to the lowest enlisted grade. 2. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards and Service 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. DISCUSSION: 1. The applicant was charged with an offense punishable under the UCMJ (court-martial) with a punitive discharge. Discharge actions processed under the provisions of chapter 10 of AR 635-200 are voluntary requests for discharge in lieu by court-martial. He acknowledged that he could be furnished an under other than honorable conditions discharge. The separation authority approved his discharge and he was separated accordingly. 2. No evidence has been presented which shows the applicant was not properly and equitably discharged in accordance with the regulations in effect at the time and that all requirements of law and regulations were not met or that the rights of the applicant were not fully protected throughout the separation process. Absent such evidence, regularity must be presumed in this case. 3. At the time of his discharge, PTSD was largely unrecognized by the medical community and Department of Defense (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. 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. 4. It was the medical opinion of the ARBA psychiatrist that the applicant more likely than not suffered from undiagnosed PTSD while on active duty. Because PTSD can be associated with avoidant behaviors, there was a likely nexus between the applicant's PTSD and the offenses which resulted in his discharge from the Army (being AWOL). His PTSD was considered mitigating for the offenses which led to his under other than honorable conditions discharge from the Army. 6. An honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. 7. A general discharge was a separation from the Army under honorable condition. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 8. A recommendation to upgrade the characterization of his service would also be a basis for restoration of his rank/grade to sergeant/E-5 as the characterization of his service was the basis for his reduction. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013504 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013504 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2