BOARD DATE: 19 January 2017 DOCKET NUMBER: AR20160003466 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 BOARD DATE: 19 January 2017 DOCKET NUMBER: AR20160003466 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. BOARD DATE: 19 January 2017 DOCKET NUMBER: AR20160003466 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 (UOTHC) to honorable. 2. The applicant states he has post-traumatic stress disorder (PTSD) and it is hard for him to receive veterans' benefits. 3. The applicant provides: * Official Military Personnel File and military medical record extracts * Department of Veterans Affairs (VA) medical record extracts 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 was inducted into the Army of the United States on 3 March 1969. 3. He accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, as follows: * on 21 April 1969, for failing to go to his appointed place of duty at the prescribed time * on 2 May 1969, for failing to obey an order * on 24 September 1969, for failing to obey an order * on 12 October 1969, for dereliction of duty 4. Records show he was transferred to a different unit for rehabilitation on 27 October 1969 and given a new opportunity to show he was capable and willing to perform his duties in a responsible military manner. He was further advised that his continued conduct unbecoming a Soldier would cause him to be directly considered for discharge due to unfitness and/or unsuitability under the provisions of Army Regulation 635-212 (Personnel Separations – Unfitness and Unsuitability). 5. The complete facts and circumstances surrounding his discharge are not available. 6. His available military medical records do not contain a diagnosis of PTSD and show, in part, he was given the narcotic pain medication Darvon on 9 October 1969 to treat his back pain from lifting a 200-pound object. 7. His U.S. Army Europe Form 3087 (Report of Psychiatric Evaluation), dated 13 November 1969, shows: a.  On 12 November 1969, he underwent a psychiatric evaluation in which he was diagnosed with an emotionally unstable personality. b.  His pertinent history revealed poor adaptation to the military authority structure, he did not like the military and being told what to do, and he had a tendency to act out aggressively rather than use more mature judgement when angered. With regard to his assault of a superior, he claimed he was awakened from sleeping and he could not remember hitting anyone; however, collateral consultation with his unit did not support this. c.  He was psychiatrically cleared for judicial action and for administrative discharge under the provisions of Army Regulation 635-212. 8. On 3 December 1969, the Assistant Staff Judge Advocate, Headquarters, 32d Army Air Defense Command, signed a statement indicating he had advised the applicant of the basis for his contemplated trial by court-martial under circumstances which would lead to a bad conduct or dishonorable discharge, of the effects of a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, and the rights available to him. 9. On 15 December 1969, his commander recommended approval of his request for discharge for the good of the service in lieu of trial by court-martial based upon his psychiatric evaluation and issuance of an Undesirable Discharge Certificate. 10. On 27 January 1970, the separation authority approved his request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, paragraph 10-7. He directed issuance of an Undesirable Discharge Certificate. 11. On 18 February 1970, he was discharged accordingly. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 11 months and 16 days of creditable active service. 12. He provided extracts of his VA Progress Notes that show, in part, his diagnosis of PTSD, depressive disorder, other medical conditions, and his description of circumstances which led to him kicking a noncommissioned officer in the mouth. He stated he was a missile crewman in Germany and they were in the field. He was helping carry a 10-foot beam with three other Soldiers. When the beam dropped, it jarred them and hurt their backs. He went to the dispensary where he was seen by a doctor who gave him medication for pain. He was sent back to work down range. He was supposed to be off duty. He went on and performed a 12-hour shift of guard duty. After 12 hours, he took some medication and laid down. While he was sleeping, the sergeant came to make him go back to work. The sergeant started shaking him to wake him. He kicked one of the sergeants in the mouth while he was being shaken. They made him see a psychiatrist and they finally discharged him UOTHC. They talked about taking him to a court-martial hearing and putting him in the stockade. Since that time it has been hard for him to get a job. He has been turned down for jobs. The discharge has affected his life. He has been stressed about this for the rest of his life. 13. On 30 November 2016, the Army Review Boards Agency psychiatrist provided an advisory opinion in which she stated there was insufficient evidence to support the applicant's contention that he developed PTSD while serving on active duty. While the applicant received the diagnosis of PTSD in several VA mental Health Group Therapy Notes, there is no comprehensive evaluation or documentation of the applicant's putative PTSD symptoms in his VA medical documentation. There is also no documentation of any PTSD symptoms or behaviors typical of PTSD in his military records. Additionally, the applicant claims he developed PTSD from the way the Army treated him after he kicked a noncommissioned officer in the mouth. This would mean he developed PTSD after he engaged in misconduct which resulted in his discharge from the military. In this case, even if the applicant had PTSD, it would not be considered a mitigating factor since it occurred after the misconduct. 14. On 5 December 2016, a copy of the advisory opinion was sent to the applicant for review and for an opportunity to provide a response. He did not respond within the suspense date. 15. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a.  Chapter 10, in effect at the time, provided that a member who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge UOTHC was normally considered appropriate. b.  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.  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. The Diagnostic and Statistical Manual of Mental Disorders (DSM), chapter 7, addresses trauma and stress or related disorders. The DSM is published by the American Psychiatric Association (APA) and 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 nosologic classification scheme. Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice. From a 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 fifth edition of the DSM 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 criterion assesses functioning, and the eighth criterion clarifies symptoms as not attributable to a substance or co-occurring medical condition. 5. On 3 September 2014 in view of the foregoing information, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) 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 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 applicants' 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. 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? 7. Although the Department of Defense 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 records 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. BCM/NRs 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. BCM/NRs 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. 8. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. Although the complete facts and circumstances of his discharge are not available, the evidence of record shows he was charged for the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge for the good of the service in lieu of trial by court-martial. 2. He voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. He underwent a psychiatric evaluation prior to his separation and he was medically cleared for actions deemed appropriate by his commander. 3. In the absence of evidence to the contrary, it is presumed that his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights. 4. He contends he developed PTSD from the way the Army treated him after he kicked a noncommissioned officer in the mouth. The Army Review Boards Agency psychiatrist opined this would mean he developed PTSD after he engaged in misconduct which resulted in his discharge from the military. In this case, even if he had PTSD, it would not be considered a mitigating factor since it occurred after the misconduct. 5. The ABCMR does not grant requests for discharge upgrades solely for the purpose of making an applicant eligible for veterans' or other 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. Any questions regarding eligibility for veterans' benefits should be addressed to the VA or appropriate State or Federal agency. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003466 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003466 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2