IN THE CASE OF: BOARD DATE: 12 December 2017 DOCKET NUMBER: AR20160003845 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: 12 December 2017 DOCKET NUMBER: AR20160003845 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: 12 December 2017 DOCKET NUMBER: AR20160003845 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 an honorable discharge. 2. The applicant states that he enlisted in the U.S. Army because he wanted a better life. During the period of his military service he was young and under a lot of stress in war. a. He was informed that he had failed a drug test based on the use of cocaine. He was told by Army officials that they had the right person, but there was another Soldier on post with the same name as his. He states the U.S. Army had several social security numbers (SSNs) associated with his name. He adds that he did not find out that there were several SSNs associated with his military service records until after he was out of the military. b. He states that he wanted to prove his innocence, but he could not afford a lawyer and he was not advised that he could consult with military legal counsel. As a result, he did not understand his rights and thought he would go to jail, so he waived his rights and requested a discharge. He adds that he never received copies of his separation packet. c. He states that he has post-traumatic stress disorder (PTSD), anxiety, panic attacks, schizophrenia, and he cannot function in crowded settings. The Department of Veterans Affairs (VA) provided him medical benefits, but he has been denied all other benefits. 3. The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and Discharge Upgrade Questionnaire (summarized above), along with a list of his civilian infractions and copies of four letters of support. 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. A DD Form 1966 (Application for Enlistment – Armed Forces of the United States), certified by the applicant on 26 September 1989 and recertified on 6 February 1990, shows his SSN in the header section. Section V (Certification) shows his SSN was verified from an Ohio identification card. 3. The applicant's DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) shows he enlisted in the U.S. Army Reserve on 29 September 1989 for a period of 8 years. At the time, he was 19 years of age. He further enlisted in the Regular Army on 6 February 1990 for a period of 4 years. At that time, he was 10 days shy of his 20th birthday. a. Item 3 (SSN) of the DD Form 4 shows the same SSN that is recorded on his DD Form 1966. b. The applicant placed his signature on the document on 29 September 1989 and on 6 February 1990. 4. A review of his military personnel records, in pertinent part, shows he: * completed training and was awarded military occupational specialty (MOS) 19K (M1 Armor Crewman) * served overseas in – * Germany from 10 June 1990 through 5 January 1991 * Saudi Arabia from 6 January 1991 through 13 May 1991 * Germany from 14 May 1991 through 13 January 1992 * was promoted to the rank of private first class (E-3) on 1 December 1991 * was awarded the – * Army Good Conduct Medal (1st Award) * National Defense Service Medal * Southwest Asia Service Medal with 3 Bronze Service Stars * Army Service Ribbon * Overseas Service Ribbon * Kuwait Liberation Medal * Expert Marksmanship Qualification Badge with Grenade Bar 5. On 11 May 1992, Brigadier General RWH, Commander, Headquarters, Fort Carson and Headquarters, 4th Infantry Division (Mechanized), Fort Carson, CO, issued a written reprimand to the applicant for, on 3 April 1992, being unable to complete a lawfully requested blood alcohol test when there was substantial evidence that he was driving while under the influence of intoxicating liquor. The applicant acknowledged receipt of the written reprimand. He did not offer any statement(s) in mitigation or rebuttal. 6. The applicant received nonjudicial punishment (NJP), as follows: * on 25 June 1992 – * for operating a privately owned vehicle (POV) while drunk on 3 April 1992 * for failing to obey a lawful command by wrongfully driving a POV on a military installation (U.S. Air Force Academy) on 23 April 1992 * his punishment included reduction to private (E-1) * on 4 March 1993 – * for failing to obey a lawful order by wrongfully driving a POV on Fort Carson military base on 20 October 1992 * for failing to go at the time prescribed to his appointed place of duty on 26 January 1993 7. A DA Form 1100 (Urinalysis Testing Worksheet), dated 16 April 1993, and DA Form 5180-R (Urinalysis Custody and Report Record), dated 15 April 1993, show the entry "Positive COC [Cocaine]" for the urine specimen associated with the applicant's name and SSN. 8. On 4 May 1993, court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ), Article 112a, for wrongfully using cocaine between 29 March 1993 and 1 April 1993. 9. On 14 May 1993, the applicant acknowledged that he had consulted with military legal counsel. He was informed of the charges against him for violating the UCMJ and that he was pending trial by court-martial. He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial. a. He voluntarily requested discharge for the good of the service in lieu of trial by court-martial. By submitting his request for discharge he acknowledged he was guilty of the charge against him or of a lesser included offense(s) therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge. The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge. b. He was advised that he might be: * deprived of many or all Army benefits * ineligible for many or all benefits administered by the VA * deprived of his rights and benefits as a veteran under both Federal and State laws c. He acknowledged he understood that, if his request for discharge was accepted, he might be issued an UOTHC Discharge Certificate. d. He was also advised that he could submit statements in his own behalf. He elected to submit a statement in his own behalf, as follows: "I feel that I am a good Soldier who has made mistakes, but feel that I haven't been treated fairly in my company. And since being in Charlie Company, 2nd Battalion, 77th Armor, I now see that I don't want a future in the military. And I think that I would like to go back to school and further my education and start my family with a good discharge." He added, "I know I don't do drugs and I've proven it before, but now I'm just too tired of defending myself for nothing with nothing to gain." e. The applicant and his counsel placed their signatures on his request for discharge. 10. The applicant's chain of command recommended approval of the applicant's request for discharge for the good of the service with an UOTHC characterization of service. The company and battalion commanders noted that the applicant's presence in the unit adversely affected morale and his continued presence would be a detriment to the unit and cause a disruption to the mission. 11. On 18 May 1993, the separation authority approved the applicant's request for discharge for the good of the service and directed that he be furnished an UOTHC Discharge Certificate. 12. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he entered active duty this period on 6 February 1990 and he was discharged on 25 May 1993 under the provisions of (UP) Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of court-martial with an UOTHC character of service. Item 3 (SSN) shows the same SSN that is recorded on the applicant's enlistment documents, the urinalysis custody, control, test, and report documents; charge sheet; and request for discharge for the good of the service. 13. A review of the applicant's military personnel records failed to reveal any evidence that the applicant applied to the Army Discharge Review Board (ADRB) for review of his discharge within that board's 15-year statute of limitations. 14. In support of his application the applicant provides the following documents. a. A DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States). Based on the date of his request, his request does not fall under the purview of the ADRB (i.e., it is outside that board's 15-year statute of limitations). b. Summit County, Criminal Justice Information System, Search Results, dated 5 October 2011, that shows 11 civilian infractions associated with the applicant's name and date of birth during the period 2 December 2001 through 7 March 2006. c. A letter from Shelia N___, dated 27 July 2012. She stated that she had been dating the applicant for 10 years and never saw him use cocaine or any other drugs when he was with her. d. A letter (undated) from Roseanna K. F___, mother of the applicant. She stated the applicant enlisted in the U.S. Army at the age of 18. He completed basic training and was sent off to the Gulf War. His problems started when he returned to Colorado. He was accused of doing drugs and afraid he would go to jail. After coming home he acted right and never did drugs. However, he has been in mental hospitals three times. He used to be cheerful, now he has PTSD, and he is paranoid and schizophrenic. She stated that it breaks her heart that he is not being taken care of after he served his country. She requests upgrade of his discharge. e. A letter from Lawrence C. J___, father of the applicant, dated 23 April 2015. He stated that his son enlisted in the Army on 29 September 1989 and was discharged on 9 June 1993. His son told him that there was an individual in Ohio who has the same name as his and a similar SSN, and that is the person who should have been charged with using cocaine. He stated that he does not believe that his son thought his discharge would adversely affect him later in life. His son has had a lot of trouble in his life from serving in Saudi Arabia, including losing his job due to health problems and PTSD. He noted his son's discharge papers show that he may clean up his military records after his discharge. f. An email message from Lawrence T___, younger brother of the applicant, dated 5 January 2016. He stated that the applicant is intelligent and that he was a productive worker, outgoing, and always helpful to others. However, when he returned home from the war, his personality had changed in a negative way. He now has extreme paranoia and nightmares from serving in the military. He is no longer the outgoing person he once was. He stays at home, isolated because of the fear and anxiety of being around others. He concluded that the war had drastically changed his brother. 15. In the processing of this case, an advisory opinion was obtained from the Army Review Boards Agency (ARBA) medical staff, dated 20 November 2017. a. The ARBA medical advisor (a psychologist) noted that she was asked to determine if the available records reasonably support PTSD or another boardable behavioral health (BH) condition existed at the time of the applicant's military service. b. The opinion was based on the information and records provided by the ABCMR and the applicant. Records were not available in the Department of Defense (DoD) electronic medical record (AHLTA) as it was not in use at the time of the applicant's service. c. The ARBA psychologist noted the applicant's deployment to Saudi Arabia during the Gulf War. d. She noted there is evidence that the applicant was separated from service for cocaine use and that he had a history of other misconduct. She noted that no evidence was provided to support his claim of an incorrect urinalysis reading or mistaken identity associated with the test results. His military records are void of any information regarding mental health concerns or stressors during his time in service and there is a lack of supportive medical documentation regarding diagnoses of PTSD or schizophrenia. She concluded there is insufficient evidence to support a change to his UOTHC discharge. 16. On 20 November 2017, the applicant was provided a copy of the advisory opinion in order to allow him the opportunity (30 days) to submit comments or a rebuttal. There is no evidence that a response was received from the applicant. REFERENCES: 1. 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." 2. 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. 3. 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, along with 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. 4. 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 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. 5. In view of the foregoing, on 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards 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. 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 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. 8. 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. 9. AR 635-40 sets forth policies, responsibilities, and procedures in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Separation by reason of disability requires processing through the Integrated Disability Evaluation System. 10. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 1 (General Provisions), paragraph 1-33 (Disposition through medical channels), provides that, except in separation actions under chapter 10 (Discharge for the Good of the Service in Lieu of Trial by Court-Martial), disposition through medical channels takes precedence over administrative separation processing. b. 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. A medical examination is not required. Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate. c. Chapter 3, 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. d. Chapter 3, 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. DISCUSSION: 1. The applicant contends, in effect, that his discharge should be upgraded because he was young, under a lot of stress from serving in the Gulf War, he was wrongfully identified for using illegal drugs due to the wrong SSN being associated with his military record, and he has developed mental health conditions since being discharged. 2. The evidence of record shows the applicant entered active duty when he was 10 days shy of his 20th birthday. He successfully completed training, was awarded MOS 19K, and he attained the rank of PFC (E-3). a. The evidence of record argues against the applicant's contention that he was immature during the period of service that is under review. b. In addition, there is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service. 3. The evidence of record shows the SSN that is recorded on the applicant's enlistment documents is the same SSN that is recorded on the urinalysis custody, control, test, and report documents pertaining to a positive cocaine result; the charge sheet for which he was charged under the UCMJ; his request for discharge for the good of the service; and his DD Form 214. Moreover, the SSN is the same as that which the applicant placed on his application to this Board. 4. The applicant served in Saudi Arabia from 6 January 1991 to 13 May 1991. a. There is no evidence of record that shows he had an unfitting medical condition during the period of service under review. b. The applicant's statement and the three statements he submitted in support of his request (from his mother, father, and brother) show he has developed mental health issues, including PTSD, schizophrenia, paranoia, anxiety, panic attacks, and nightmares. c. There is no evidence of record showing a medical diagnosis of any mental health condition(s). 5. The evidence of record shows the Army regulation governing active duty enlisted administrative separation processing provides that disposition of Soldiers through medical channels takes precedence, except in separation actions under AR 635-200, chapter 10. 6. The applicant's request for discharge UP AR 635-200, chapter 10, to avoid trial by court-martial was both voluntary and administratively correct. All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. In addition, the reason for and type of discharge directed were appropriate and equitable. 7. Records show the applicant was reprimanded for driving under the influence of alcohol. He also received NJP on two separate occasions for various offenses of the UCMJ and he was reduced to private (E-1). Then, court-martial charges were preferred against the applicant for violation of the UCMJ involving his use of an illegal substance (cocaine). a. The evidence of record shows the applicant's character of service was carefully considered by the chain of command and the separation authority when the applicant submitted his request for discharge for the good of the service. b. Records show the period of service under review was characterized as UOTHC. c. The evidence of record shows an UOTHC discharge is normally considered appropriate for Soldiers discharged UP AR 635-200, chapter 10. 8. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the 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, the granting of veterans' benefits is not within the purview of the ABCMR. Any questions regarding eligibility for such benefits should be addressed to the VA or appropriate government 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) AR20160003845 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003845 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2