BOARD DATE: 12 October 2017 DOCKET NUMBER: AR20160003795 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: 12 October 2017 DOCKET NUMBER: AR20160003795 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: 12 October 2017 DOCKET NUMBER: AR20160003795 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 discharge. 2. The applicant states: a. While in the service, he started having problems with stress and depression, and he broke down mentally. This affected his performance. While he was in the Army, both of his sisters were killed in car accident while heading back to college. This occurred in 1976. He was stationed in Germany when he was contacted and informed of the deaths of his sisters, Carrie and Carolyn. They were his younger sisters and they were taken away too soon due to the car accident. He was very close to his sisters, and when he was informed of their deaths, it hit him so hard that he was not able to function in his normal capacity or state of mind. He was given leave for a short period of time to return home to his remaining family members; however, once he got home, he was so emotionally torn, he just did not have it in him to return to the Army. He knows he was wrong in doing so, but he felt like a part of him had died. He turned to drugs and alcohol to deal with the loss and to forget the pain and depression he felt. b. Prior to their deaths, he was a very good Soldier and he was very proud to serve in the Army, but when this happened, his whole world fell apart and he just did not know how to cope with the feelings of loss, depression, and anger he was dealing with. He still suffers with depression and sadness due to the loss of his sisters, and he still has a difficult time dealing with it. He tries not to think about it, but there is not a day that goes by he does not think of his sisters. He also had a younger sister and brother at home and he felt it was his responsibility to help care for them as his mother was having a hard time dealing with the loss of her two daughters. His father was not around, so they could not depend on him to help. He felt he had no choice but to stay home and help his mother through her depression as well as help his other two younger siblings. 3. The applicant provides his DD Form 214 (Report of Separation from Active Duty). 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, and 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 (RA) on 5 January 1973 and held military occupational specialty (MOS) 13B (Field Artillery Crewman). He served in Germany from 17 May 1973 to on or about 3 May 1976. 3. On 6 November 1975, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 15 to 23 September 1975. His punishment consisted of a reduction to pay grade E-2, extra duty, and a suspended forfeiture of pay. 4. On 3 May 1976, he departed his unit in an AWOL status and on 1 June 1976, he was dropped from Army rolls as a deserter. He was apprehended by civil authorities in Laurinburg, NC, and returned to military control on 22 February 1977. 5. He was attached to the U.S. Army Personnel Control Facility Processing Company, Fort Bragg, NC, for processing and disposition of the charges. 6. The complete facts and circumstances surrounding the applicant’s discharge action are not available for review with this case. However, his record contains: a. DA Form 31 (Request and Authority for Leave) placing him on excess leave effective 4 March 1977, pending disposition of his case. b. Signed memorandum, dated 4 March 1972, wherein the applicant declined the Army providing him a narrative reason for separation. c. Orders 72-75, issued by Headquarters, XVIII Airborne Corps, Fort Bragg, dated 13 April 1977, reducing him to the rank of private/E-1, effective 11 April 1977. d. Orders 76-52, issued by Headquarters, XVIII Airborne Corps, Fort Bragg, dated 19 April 1977, discharging him from the RA, effective 20 April 1977. e. DD Form 214 that shows he was discharged on 20 April 1977 with a character of service of under other than honorable conditions. He completed 2 years, 7 months, and 27 days of active service. His DD Form 214 also shows: * he had 543 days of lost time under Title 10, U.S. Code, section 972 * he had 48 days of excess leave * he was awarded or authorized the National Defense Service Medal and Marksman Marksmanship Qualification Badge with Rifle Bar (M-16) 7. There is no indication he applied to the Army Discharge Review Board for a review of his discharge within that board’s 15-year statute of limitations. 8. This Board forwarded the applicant's documentation to the Army Review Boards Agency (ARBA) medical advisor/psychologist for review. a. The sources of review consisted of the electronic medical record (no records); limited review of Veteran’s Administration (VA) records through the Joint Legacy Viewer (no records); and the electronic personnel records (no records). The review also included the evidence the applicant submitted with his application on 2 February 2016 and the records in his file. b. The applicant was in the Army from 5 January 1973 to 20 April 1977. He received an other than honorable conditions discharge after a long AWOL (he also had a shorter AWOL when in Germany), apparently over 500 days that resulted in him being dropped from Army rolls and reduced in rank to pay grade E-1. He was a Canoneer with an MOS of 13B10. His DD Form 214 left the narrative reason for discharge unstated, though the applicant signed it on 4 March 1977, a form shows he declined a separate document with his narrative reason for discharge on it. The applicant focused on the 543 days he lost under Title 10, U.S. Code, section 972, contending it occurred as a result of his mental status deteriorating after the death of his sisters (two) in an automobile accident that occurred during the applicant’s service in Germany. He did not provide independent medical evidence showing he had mental health problems during or even after his service. c. The available service records does not corroborate his central claim for mitigation. The applicant stated until the deaths of his sisters, he was serving well. The applicant omitted mention of legal problems explained in a letter, dated 4 January 1979, written by Captain Fau___, Judge Advocate General Corps. She was responding to a request from the German Public Prosecutors Office in Weiden, Germany, about the whereabouts of the applicant. During his time in Germany, the applicant was convicted of a robbery of a German national. He was sentenced to 2 years of juvenile confinement the German court reduced to 2 years of parole, with the applicant’s commander appointed as his parole officer. In April 1976, the applicant began an AWOL that became a desertion during leave from his unit in Germany. German authorities issued an arrest warrant for the applicant on 22 March 1977. This information damages the applicant’s claim of being law abiding (part of being a good Soldier) before his desertion. The robbery clearly predated his AWOL, as he obtained emergency leave because of the deaths of his sisters in April 1976, well after the robbery and conviction. His desertion ended when he was apprehended in February 1977 and jailed. Medical examinations and notes in his available records showed no mental health diagnoses or behavioral health treatment. There is insufficient evidence to mitigate misconduct. d. The applicant’s medical records do not, at the time of his discharge, reasonably support him having had a boardable medical condition; he did meet mental health standards in AR 40-501 and AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation); the available case material did not support the existence of a mitigating mental health condition at the time of his misconduct; the available records did not include an exit medical examination, though it was unclear if this was an administrative or legal discharge; and based on the available behavioral-health records, there is insufficient evidence that a behavioral health condition had anything to do with the applicant’s misconduct. e. In conclusion, the applicant did meet medical retention standards. It is unknown if the applicant’s mental health conditions were considered at the time of discharge. A review of available documentation did not discover evidence of mental health considerations that bears on the character of the discharge in this case. A mitigating nexus between the applicant’s misconduct and his mental health was not discovered. 9. The applicant was provided a copy of this advisory opinion to give him an opportunity to submit a rebuttal and/or additional comments. He did not respond. REFERENCES: 1. AR 635-200 (Personnel Separations – Enlisted Personnel), then in effect, set forth the basic authority for the separation of enlisted personnel. Chapter 10 provided that a member who has committed an offense or offenses under the Uniform Code of Military Justice 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 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 provides 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 provides 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. 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. 3. 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. 4. 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. 5. 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? 6. Although 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 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. 7. On 25 August 2017 the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; traumatic brain injury (TBI); sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. DISCUSSION: 1. The applicant’s military record is void of the complete specific facts and circumstances that led to his voluntary request for discharge, although his records clearly show he was AWOL for a lengthy period of time. 2. His record contains a DD Form 214 and other documents showing he was discharged on 20 April 1977. It is probable that he was discharged under the provisions of chapter 10, AR 635-200, in lieu of a court-martial. His character of service was under other than honorable conditions. The issuance of a discharge under the provisions of chapter 10, AR 635-200, would have required the applicant to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of a trial by court-martial. 3. 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. The evidence shows a separation authority determined the applicant's service did not rise to the level required for an honorable or general characterization of service. 4. ARBA’S medical advisor/psychologist concluded the available documentation did not contain evidence of mental health considerations that bear on the applicant’s characterization of service and did not find a mitigating nexus between the applicant’s misconduct and his mental health. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003795 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003795 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2