I BOARD DATE: 8 May 2018 DOCKET NUMBER: AR20160006976 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : X :X :X DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration I BOARD DATE: 8 May 2018 DOCKET NUMBER: AR20160006976 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, through the Organization of Disabled American Veterans (DAV), an upgrade of his under honorable conditions (general) discharge. 2. The applicant states he was unfit for duty prior to enlisting; however, he was granted entry into the service. He was subjected to mental and physical abuse from his Drill Sergeants and fellow recruits. He was let go from the service because he did not meet the physical fitness requirements to compete with his peers. As a result, he suffers from post-traumatic stress disorder (PTSD). 3. The applicant provides: * a letter from the DAV, dated 21 March 2016, requesting the Board's review of his application * a Department of Veterans Affairs (VA) Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative), dated 21 March 2016 authorizing the DAV access to his records * DD Form 214 (Certificate of Release or Discharge 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, 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 1 June 1976. He completed initial entry training and was awarded military occupational specialty (MOS) 71B (Clerk-Typist). The highest rank/grade he attained while on active duty was private (PV2)/E-2. 3. The applicant accepted nonjudicial punishment (NJP) on the following occasions, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ): a. on 28 July 1976, for failing to be at his appointed place of duty, to wit: Company C, 9th Battalion, 2nd Basic Combat Training Brigade, Fort Jackson, SC, and for unlawfully striking a fellow Soldier in the chest with his hands on or about 27 July 1976; b. on 8 April 1977, for failing to be at his appointed place of duty, to wit: Headquarters Company, Fort Richardson, AK on or about 15 March 1977, 24 March 1977, and 26 March 1977, and for willfully disobeying a lawful order of a superior noncommissioned officer or about 24 March 1977; and c. on 6 May 1977, for wrongfully communicating a threat to injure a fellow Soldier on or about 27 April 1977 and failing to report to his appointed place of duty, to wit: Headquarters Company, Fort Richardson, AK on or about 1 May 1977. 4. The applicant's available records contains: a. A DA Form 4187 (Personnel Action), dated 8 June 1977, which shows his duty status was changed from "Present for Duty" to "Confined Military Authorities" effective 31 May 1977. The remarks block further notes: "SM is in Pre-Trial Confinement at Area Confinement Facility, Fort Richardson, AK." b. A DA Form 4187, dated 24 June 1977, which shows the applicant's duty status was changed from "Confined Military Authorities" to "Present for Duty" effective 23 June 1977. The remarks block further notes: "SM sentenced to a BCD on 23 June 1977." 5. Special Court-Martial Order Number 42, issued by Headquarters, 172nd Infantry Brigade, Fort Richardson, AK on 13 September 1977, shows the applicant was convicted before a special court-martial (SPCM) on 23 June 1977, of the following violations of the UCMJ: a. Three specifications of Article 86; specifically, for failing to go to his appointed places of duty on or about 11 May, 27 May, and 28 May 1977. b. Three specifications of Article 91; specifically, for willfully disobeying the lawful orders of a superior noncommissioned officer on 13 May, 16 May, and 18 May 1977. c. Three specifications of Article 92; specifically, for failing to obey the lawful orders of a superior noncommissioned officer on 16 May, 19 May, and 25 May 1977. d. He was sentenced to be discharged from the service with a Bad Conduct Discharge (BCD). The convening authority approved the sentence but the BCD was changed to the lesser punishment of confinement at hard labor for six months and forfeiture of $249 pay per month for six months, ordered duly executed on 13 September 1977. The applicant was confined at the U.S. Army Retraining Brigade (USARB), Fort Riley, KS. 6. A Standard Form 502 (Clinical Record – Narrative Summary), dated 13 October 1977, shows the applicant was evaluated by a Medical Evaluation Board (MEB) at Irwin Army Hospital, Fort Riley, KS on or about 6 October 1977, for "bilateral bunions, existed prior to service (EPTS)." It was the consensus of the MEB that he did not meet the medical fitness standards for enlistment as prescribed in Army Regulation 40-501 (Standards of Medical Fitness), chapter 2 and did not meet medical fitness standards for retention. As a result, the MEB recommended he be separated in accordance with chapter 5, Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). 7. The applicant submitted an application for expeditious discharge on 6 October 1977. In his request, he stated, it was his understanding that such a request would normally include consideration of his case by the adjudicative system established by the Secretary of the Army for processing disability separations. However, he elected not to exercise this right. 8. In a memorandum, dated 17 November 1977, the Irwin Army Hospital's Assistant Adjutant sent the applicant's request to the Commander, USARB for consideration. 9. The applicant accepted NJP on 18 November 1977, under the provisions of Article 15 of the UCMJ, for assaulting a fellow Soldier by striking him on the jaw with a clenched fist on an unspecified date. 10. The applicant's record reveals numerous negative counseling statements by members of the USARB chain of command for various infractions, including failure to follow instructions, misconduct, poor military discipline and courtesy, and negative attitude. 11. The applicant was notified on 23 November 1977 of his immediate commander's intent to initiate actions to discharge him from the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 13, by reason of misconduct (frequent incidents of a discreditable nature with civil or military authorities). Specifically, the commander cited the applicant's: * frequent incidents of a discreditable nature * unsatisfactory conduct and efficiency * assignment to the retraining brigade for corrective training to improve attitude and motivation; however, had demonstrated little desire for returning to duty * failure to respond to numerous counseling efforts by social workers, leadership team and unit cadre * failure to react to rehabilitative efforts * one court-martial conviction and three Article 15 punishments 12. The applicant acknowledged on 25 November 1977 that he had been notified of the pending separation action against him, and that he had been advised by counsel of the basis for the contemplated action to separate him for misconduct. He elected representation by military counsel and consideration of his case by, and personal appearance before a board of officers. He further elected not to submit any statements in his own behalf. 13. In conjunction with counseling, he acknowledged: * he could expect to encounter substantial prejudice in civilian life if a general discharge was issued to him * he understood that, as a result of the issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws 14. The applicant's intermediate commander recommended on 23 November 1977 that the applicant be eliminated from the service under the provisions of Army Regulation 635-200. He stated the applicant was currently in confinement for 6 months and his minimum release date was on or about 6 December 1977. 15. The applicant was notified to appear before a board of officers on 30 November 1977 under the provisions of Army Regulation 635-200 to determine if he should be discharged from the Army because of misconduct before his expiration term of service. 16. A board was convened at Fort Riley, KS on 15 December 1977. The applicant did appear with appointed counsel. The board recommended he be discharged from the service because of misconduct with the issuance of an under other than honorable conditions discharge certificate. The board cited the following as its rationale: * conviction by one court-martial for nine specifications of violations of the UCMJ * having received three Article 15s for assault, disobeying a lawful order/failure to repair, and communication a threat * numerous discreditable incidents recorded at the USARB, which included: failure to meet standards, being found off-limits, and assault 17. The appropriate authority approved the board's recommendation and ordered the applicant to be discharged from the service and directed he be issued an Under Other than Honorable Conditions Discharge Certificate on 21 December 1977. 18. The applicant was discharged on 22 December 1977, under the provisions of Army Regulation 635-200, paragraph 13-5a (1), by reason of frequent incidents of a discreditable nature with civil or military authorities. He completed 1year and 13 days of total active service that was characterized as under other than honorable conditions. His DD Form 214 also shows he had 189 days of lost time. 19. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. On 22 May 1979, the ADRB directed an upgrade of his character of service to under honorable conditions (general). 20. The applicant's record is void of evidence that shows he was diagnosed with PTSD during his period of military service. Additionally, his record is void of any evidence that corroborates his contention that he was unfairly treated. 21. In connection with the processing of this case, an advisory opinion was obtained on 18 August 2017, from the Army Review Boards Agency (ARBA) Clinical Psychiatrist, who opined: a. The ARBA Psychiatrist was asked to review the Behavioral Health aspects of this request; specifically the following questions: (1) Does available record reasonably support PTSD, or another boardable behavioral health condition, existed at the time of the applicant's military service? (2) Did these conditions fail medical retention standards in accordance with Army Regulation 40- 501, warranting a separation through medical channels? (3) Is this condition(s) a mitigating factor in the misconduct that resulted in the applicant's discharge from the military? (4) Any additional information deemed appropriate. b. Documentation reviewed included the applicant's ABCMR application, his prior ADRB and military records and the VA electronic medical record (JLV). The military electronic medical record (AHLTA) was not reviewed as it was not in use during the applicant's time in service. c. Review of his VA electronic medical record (JLV) indicates that the applicant is 60% service-connected for conditions related to his feet and toes. His VA problem list includes the following behavioral health diagnoses: nicotine dependence; other psychoactive substance abuse with intoxication; alcohol dependence; polysubstance dependence; marijuana dependence; cocaine dependence; anxiety disorder NOS (Not Otherwise Specified); depression; psychotic disorder NOS; personality disorder NOS and antisocial personality disorder. d. The applicant contends that he suffered from PTSD while in the military. (1) Review of the available documentation reveals no evidence of PTSD symptoms or diagnoses. (2) There is no indication that the applicant failed to meet military psychiatric retention standards in accordance with Army Regulation 40-501 while on active duty. e. In regards to the questions outlined above: (1) The applicant's military medical records do not support a PTSD diagnosis at the time of discharge. (2) The applicant's medical records indicate that the applicant met psychiatric retention standards in accordance with Army Regulation 40-501 and separation through military medical channels was not indicated. (3) There are no mitigating behavioral health diagnoses for the misconduct leading to the applicant's discharge from the Army. (4) Referral of his record to Integrated Disability Evaluation System (IDES) for consideration of medical disability/retirement for behavioral health issues is not indicated. 22. A copy of the advisory opinion was forwarded to the applicant on or about 22 August 2017, for information and to allow him the opportunity to submit comments or a rebuttal. He did not respond. REFERENCES: 1. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. It is not an investigative agency. 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. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. b. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Chapter 13, in effect at the time, contained the policy and outlined the procedures for separating individuals for unfitness. It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: (a) frequent incidents of a discreditable nature with civil or military authorities, (b) sexual perversion, (c) drug addiction, (d) an established pattern of shirking, and/or (e) an established pattern showing dishonorable failure to pay just debts. This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted an honorable or a general discharge. 3. 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." 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 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. a. Criterion A, stressor: The person was exposed to: death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence, as follows: (one required): (1) Direct exposure. (2) Witnessing, in person. (3) Indirectly, by learning that a close relative or close friend was exposed to trauma. If the event involved actual or threatened death, it must have been violent or accidental. (4) Repeated or extreme indirect exposure to aversive details of the event(s), usually in the course of professional duties (e.g., first responders, collecting body parts; professionals repeatedly exposed to details of child abuse). This does not include indirect non-professional exposure through electronic media, television, movies, or pictures. b. Criterion B, intrusion symptoms: The traumatic event is persistently re- experienced in the following way(s): (one required): (1) Recurrent, involuntary, and intrusive memories. (2) Traumatic nightmares. (3) Dissociative reactions (e.g., flashbacks) which may occur on a continuum from brief episodes to complete loss of consciousness. (4) Intense or prolonged distress after exposure to traumatic reminders. (5) Marked physiologic reactivity after exposure to trauma-related stimuli. c. Criterion C, avoidance: Persistent effortful avoidance of distressing trauma-related stimuli after the event: (one required): (1) Trauma-related thoughts or feelings. (2) Trauma-related external reminders (e.g., people, places, conversations, activities, objects, or situations). d. Criterion D, negative alterations in cognitions and mood: Negative alterations in cognitions and mood that began or worsened after the traumatic event: (two required): (1) Inability to recall key features of the traumatic event (usually dissociative amnesia; not due to head injury, alcohol, or drugs). (2) Persistent (and often distorted) negative beliefs and expectations about oneself or the world (e.g., "I am bad," "The world is completely dangerous"). (3) Persistent distorted blame of self or others for causing the traumatic event or for resulting consequences. (4) Persistent negative trauma-related emotions (e.g., fear, horror, anger, guilt, or shame). (5) Markedly diminished interest in (pre-traumatic) significant activities. Feeling alienated from others (e.g., detachment or estrangement). (6) Constricted affect: persistent inability to experience positive emotions. e. Criterion E, alterations in arousal and reactivity: Trauma-related alterations in arousal and reactivity that began or worsened after the traumatic event: (two required): (1) Irritable or aggressive behavior (2) Self-destructive or reckless behavior (3) Hypervigilance (4) Exaggerated startle response (5) Problems in concentration (6) Sleep disturbance f. Criterion F, duration: Persistence of symptoms (in Criteria B, C, D, and E) for more than one month. g. Criterion G, functional significance: Significant symptom-related distress or functional impairment (e.g., social, occupational). h. Criterion H, exclusion: Disturbance is not due to medication, substance use, or other illness. 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 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 of time. 7. In view of the foregoing, on 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and BCMs/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. 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 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 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. 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 requests an upgrade of his under honorable conditions (general) discharge. 2. The applicant's record shows he accepted NJP on numerous occasions and was convicted by a special court-martial; he was assigned to the retraining brigade for rehabilitation but failed to respond constructively. Additionally, he accrued over six months of lost time. As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel. Accordingly, his chain of command initiated separation action against him. 3. The available evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time. There is no evidence of procedural errors that would have jeopardized his rights. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 4. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant was provided relief from the ADRB in 1979 in the form of an upgrade to his characterization of service to an "Under Honorable Conditions (General)." 5. The ARBA Clinical Psychiatrist opined that a review of his available medical documentation did not reveal a mental health condition, i.e. PTSD, that would have failed to meet medical retention standards in accordance with governing regulations and, therefore, did not necessitate a discharge through medical channels. As such, the evidence does not support any diagnoses that caused his misconduct to warrant a change to the characterization or reason of his service. BOARD DATE: 8 May 2018 DOCKET NUMBER: AR20160006976 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160006976 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006976 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2