IN THE CASE OF: BOARD DATE: 10 October 2017 DOCKET NUMBER: AR20160004177 BOARD VOTE: ___x_____ ___x___ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 10 October 2017 DOCKET NUMBER: AR20160004177 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing her DD Form 214 to show the character of her service as honorable. ______________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: 10 October 2017 DOCKET NUMBER: AR20160004177 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 her general discharge under honorable conditions to honorable. 2. The applicant states she was raped in advanced individual training and has been diagnosed with post-traumatic stress disorder (PTSD) by the Department of Veterans Affairs due to the rape and her deployment. She was interviewed by her superiors about the rape and they kept trying to talk her out of it. They were trying to protect the man who raped her. No one who had any power or influence could help her. She is in counseling. 3. The applicant provides: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * letter from her psychiatrist, dated 4 August 2015 * several progress notes from the VA, dated 2013 to 2015 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 26 February 1990 for a period of 2 years and 22 weeks. She served in Southwest Asia from 13 October 1990 to 24 March 1991. 3. Between 9 May 1991 and 10 July 1991, she was counseled for: * reporting to duty in the incorrect uniform * being disrespectful toward a noncommissioned officer * throwing a ration pan in the dumpster * failing to report to a medical appointment * failing to report to physical training formation 4. On 29 July 1991, nonjudicial punishment was imposed against her for using disrespectful language toward a staff sergeant. 5. Her Standard Form 88 (Report of Medical Examination), dated 24 September 1991, shows she underwent a separation physical examination. a. Item 42 (Psychiatric) of this form shows she was rated normal. b. Item 76 (Physical Profile) shows she was assigned a rating of "1" under the psychiatric factor. c. Item 77 (Examinee) shows she was qualified for separation. 6. Discharge proceedings were initiated against her for unsatisfactory performance under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13. Her unit commander specified the following reasons for the proposed action: * she had been in the Army Weight Control Program since July 1990 and had not shown any improvement * her numerous counseling statements * her nonjudicial punishment for using disrespectful language toward a staff sergeant 7. On 6 November 1991, she consulted with counsel, waived her rights, and acknowledged that she might encounter substantial prejudice in civilian life if a general discharge were issued. She also elected to submit a statement in her own behalf; however, her records do not contain a statement for review. 8. The separation authority approved the recommendation for separation and directed the issuance of a General Discharge Certificate. 9. On 20 December 1991, she was discharged under honorable conditions (general) for unsatisfactory performance under the provisions of Army Regulation 635-200, chapter 13. She completed a total of 1 year, 9 months, and 25 days of creditable active service. 10. There is no evidence of record showing she was diagnosed with any mental health condition prior to her discharge. 11. There is no indication she applied to the Army Discharge Review Board for an upgrade of her discharge within its 15-year statute of limitations. 12. She provided VA documentation showing she met the criteria for a PTSD diagnosis in November 2013. 13. She also provided a letter from her psychiatrist, dated 4 August 2015, stating the applicant has been her patient since May 2013 and she is being treated for PTSD symptoms. 14. An advisory opinion was rendered by the Army Review Boards Agency Psychologist, dated 30 June 2017, wherein he stated: a. The Joint Legacy Viewer records show she was granted a service-connected disability rating of 50 percent from the VA as of 30 June 2017. Her VA problem list includes diagnoses of other bipolar disorder, attention deficit hyperactivity disorder, generalized anxiety disorder, PTSD (first diagnosed in 2013), history of substance use, unspecified personality disorder, and obsessive-compulsive disorder. b. It appears that rape was the index trauma for the PTSD diagnosis by the VA. The Army Review Boards Agency has higher standards for accepting a trauma than the VA, as VA practice is not to challenge claims of trauma by a patient. The available record did not corroborate her claim of rape and a request to the U.S. Army Criminal Investigation Command for information on her case indicated the U.S. Army Criminal Investigation Command had no record of it. If one is willing to accept her uncorroborated claims of military sexual trauma, to accept the PTSD diagnosis based on the uncorroborated military sexual trauma by a VA provider, and to apply the Secretary of Defense's liberal guidance for PTSD, the case for mitigating her unsatisfactory performance exists. c. She also has other diagnoses – bipolar disorder for example – that favor mitigation, but has other diagnoses in her history – alcoholism and personality disorder – that do not favor mitigation. d. Despite the weakness of her case, relying heavily on the Secretary of Defense's policy of liberal guidance, the psychologist mitigates the instances of unsatisfactory performance that led to her general discharge. If mitigated, the case for upgrading her general discharge is strong. Based on available records, she did not at any point reach a medical retention decision point. The evidence in her available records shows she met medical retention standards. e. Her medical records do not reasonably support her having had a boardable medical condition at the time of her discharge, she met mental health standards, and the available case material did support the existence of a mitigating mental health condition at the time of her misconduct or unsatisfactory performance. Based on available behavioral health evidence, there is mitigation of the applicant's behavior based on her PTSD that was diagnosed over 20 years after her discharge and the Secretary of Defense's policy of liberal guidance. f. She did meet medical retention standards. g. It is unknown if her mental health conditions were considered at the time of her discharge from the Army. h. A review of her available documentation did discover evidence of mental health considerations that justifies changing the characterization of her discharge. A mitigating nexus between the applicant's unsatisfactory performance and her mental health was discovered. 15. A copy of this advisory opinion was provided to the applicant for comment and/or rebuttal. She did not respond. REFERENCES: 1. Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). Chapter 7 prescribes a system for classifying individuals according to functional abilities. Four numerical designations are used to reflect different levels of functional capacity. The basic purpose of the physical profile serial is to provide an index to overall functional capacity. Therefore, the functional capacity of a particular organ or system of the body, rather than the defect per se, will be evaluated in determining the numerical designation 1, 2, 3, or 4. An individual having a numerical designation of "1" is considered to possess a high level of medical fitness under that factor. 2. Army Regulation 635-200 sets forth the requirements and procedures for the administrative discharge of enlisted personnel. a. Chapter 13, in effect at the time, provided for separation due to unsatisfactory performance when, in the commander's judgment, the individual would not become a satisfactory Soldier; retention would have an adverse impact on military discipline, good order, and morale; the service member would be a disruptive influence in the future; the basis for separation would continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, was unlikely. Service of Soldiers separated because of unsatisfactory performance under this chapter would be characterized as honorable or under honorable conditions. 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. 3. 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 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." 4. 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. 5. 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. 6. 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 Soldiers' misconduct that 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 a 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. 7. On 3 September 2014 in view of the foregoing information, 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 applicants' service. 8. 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? 9. 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 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. 10. 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; 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 record of service includes adverse counseling statements between 9 May 1991 and 10 July 1991 for reporting to duty in the incorrect uniform, being disrespectful toward a noncommissioned officer, throwing a ration pan in the dumpster, failing to report to a medical appointment, and failing to report to physical training formation, and one nonjudicial punishment for using disrespectful language toward a staff sergeant. 2. Her administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized her rights. 3. Her diagnosis of PTSD by the VA in 2013 is acknowledged. 4. 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. 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. 5. The Army Review Boards Agency Psychologist reviewed her records and determined: a. The available case material supported the existence of a mitigating mental health condition at the time of her misconduct or unsatisfactory performance. b. Based on available behavioral health evidence, there is mitigation of the applicant's behavior based on her PTSD that was diagnosed over 20 years after her discharge and the Secretary of Defense's policy of liberal guidance. c. A mitigating nexus between her unsatisfactory performance and her mental health was discovered. 6. This nexus may serve as a basis for a recommendation to upgrade the characterization of her service to honorable. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004177 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004177 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2