BOARD DATE: 6 June 2018 DOCKET NUMBER: AR20160013095 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: 6 June 2018 DOCKET NUMBER: AR20160013095 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: 6 June 2018 DOCKET NUMBER: AR20160013095 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 his general discharge for unsuitability due to apathy be upgraded to honorable. 2. The applicant states his discharge should be upgraded because he was suffering from post-traumatic stress disorder (PTSD) even though that terminology was not used at the time. 3. The applicant provides: a. letter, dated 11 July 2016, from a civilian clinical psychologist stating he is currently being treated for PTSD and it is his opinion the PTSD existed prior to his discharge from the military and that he is maintaining compliance with his treatment plan that includes monthly therapy sessions at Rxxxx Rxxxxx Pxxxxxxxxx; b. character reference letter from a longtime friend; c. list of separation codes with, "JMJ - motivational problems" highlighted; and d. 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 for 4 years on 29 November 1978. He completed the training requirements and he was awarded military occupational specialty 19E (Armor Crewman) and assigned to Germany in late March 1979. He was advanced to private first class, pay grade E-3 on 1 October 1979. 3. On 30 May 1980 he was involved in a tactical vehicle accident and was diagnosed with possible compression fractures of the lumbar lower vertebrae. 4. The applicant was advanced to specialist four, pay grade E-4, on 1 September 1980. He was absent without leave from 2 November to 7 November 1980. 5. He was reassigned to Fort Hood, Texas, on 15 May 1981. On 25 November 1981, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for sleeping on guard duty. His punishment consisted of reduction to pay grade E-3, a forfeiture of $360 pay for 2 months (suspended for 3 months), and 30 days of extra duty. He did not appeal the punishment. 6. The applicant wrote dishonored checks on 27 and 28 December 1981 and his on-base check cashing privileges were temporarily suspended in January 1982. 7. The applicant was absent from his appointed place of duty (morning formation) and the suspended portion of his November 1981 NJP punishment providing for a forfeiture of pay was vacated. 8. A 3 March 1982 general counseling statement shows a sergeant reported the applicant failed to obey an order to report to latrine cleaning detail. The applicant was observed walking out of the building. 9. On the same date, a general counseling form shows the applicant was advised a psychiatric evaluation was warranted, because he had grown less responsive to orders, he lacked motivation, and he was a disruptive force within the platoon due to his attitude. He also appeared tired after a full night’s sleep. 10. An undated, mental status evaluation shows the applicant's behavior was normal, he was fully alert and oriented, he displayed a level mood and his thinking was clear with normal thought content. His memory was good. There was no impression of significant mental illness. He was considered mentally responsible and able to distinguish right from wrong and adhere to the right. It was determined he had the mental capacity to understand and participate in separation proceedings. He was also determined to have met retention medical standards. 11. On 27 March 1982, the applicant was arrested for driving while his license was suspended. He was later released to his unit. 12. On 4 May 1982, the applicant was notified the company commander intended to initiate elimination action against him prior to the expiration of his term of service under the provisions of chapter 13, Army Regulation 635-200 (Personnel Separations), due to unsuitability, apathy, defective attitudes or inability to exert constructive effort. 13. The applicant consulted with counsel and acknowledged he had been advised of the bases for the separation action, the consequences of waiving his rights to consideration by and appearance before a board of officers, submission of statements in his own behalf and representation by counsel. He also indicated he understood he might receive a general discharge under honorable conditions. 14. The applicant’s company commander recommended the applicant’s separation with a general discharge, noted the applicant had served ineffectively in two different platoons, and recommended that any further rehabilitation requirements be waived. The chain of command recommended approval and separation authority (the brigade commander) so directed the discharge. 15. On 21 May 1982 the applicant was discharged under the provisions of Army Regulation 635-200, paragraph 13-4c. He was assigned separation code JMJ. He had completed 3 years, 5 months, and 21 days of creditable active service and had 6 days of lost time due to being absent without leave. His awards consisted of the Army Service Ribbon, Overseas Service Ribbon, Expert Marksmanship Qualification Badge with Rifle Bar, and Marksman Marksmanship Qualification Badge with Pistol Bar. 16. In support of his request to this Board the applicant submitted a letter from Andrew K____, who identified himself as a longtime friend. Mr. K____ observed that: * the applicant has always been an upstanding guy * his mental diagnosis should be back-dated prior to his discharge * his mental diagnosis may have contributed to his problems * he deserves an upgrade because of the great things he has done in society by mentoring youth, volunteering to help veterans, being a great friend, father, and grandfather 17. During the processing of this case an advisory opinion was obtained from the Army Review Board's Agency (ARBA) Medical Department. A clinical psychologist opined that based on the information in the applicant's record and the information that was provided: a. There is no evidence a diagnosis of PTSD or any other behavioral health condition existed during the applicant’s military service or that his misconduct was mitigated by a behavioral health condition. b. The presence of potentially untreated PTSD during his time in service does not mitigate his actions as the nature of this condition is not reasonably related to his behaviors depicted as unsuitability, apathy defective attitude or inability to expend effort constructively. c. This observation does not negate the applicant’s post-service diagnosis of PTSD; however, there is no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. 18. The medical advisory opinion was made available to the applicant for to provide him an opportunity to respond. 19. In response to the medical advisory, the applicant submitted a packet, dated 19 December 2016. This packet contains descriptions of significant events he alleges occurred during his period of service. a. He describes an event that involved a tank accident during a field training exercise where he was driving the tank. The tank rolled and turned upside down. He was trapped and feared for his life. b. After the accident he went on leave for 30 days. He experienced sleep problems, nightmares, and bad memories of the accident. He remained at home in an absent without leave status for 6 days because he did not want to go back to Germany. c. Six months after the accident he attempted suicide. The doctor had given him some valium because he injured his neck during the accident. He overdosed on the valium, beer, and alcohol. d. When he was assigned to Fort Hood, he continued to experience nightmares and he would break out in sweats. He got to the point that he could not stand the sight of a tank or the noise they made. He experienced anxiety attacks when he went near them because he was afraid. e. He fell asleep on guard duty and received NJP because of a lack of sleep. 20. He also provided service records and medical documents that relate to the above narrative and a Social Security Administration benefits letter that shows he has been receiving social security disability since November 2016. Medical documents show he was hospitalized in 2015 due to depression, alcohol abuse, and PTSD. 21. The medical documents he provided also show he is taking several prescription medications and confirm he overdosed on valium and appears to have been admitted for observation. There is no further disposition of this incident. REFERENCES: 1. Army Regulation 635-200 sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel. Chapter 13, in effect at that time, applied, in pertinent part, to separation for unsuitability of those individuals whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively. A separation code of JMJ was assigned. 2. 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 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. 3. 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 believes his general discharge for unsuitability due to apathy defective attitude or inability to expend effort constructively should be upgraded because he was suffering from PTSD even though that terminology was not in use at the time. 2. Prior to discharge the applicant underwent a mental status evaluation that shows he demonstrated no impression of notable mental illness. He was considered mentally responsible, able to distinguish right from wrong, and to adhere to the right. He was also determined to have met retention medical standards. The available evidence does not indicate the applicant ever conveyed to his chain of command or medical personnel at any time, that he had mental concerns or sleep related issues. He was discharged because of unsuitability, due to a defective attitude and apathy or lack of interest under the provisions of chapter 13, Army Regulation 635-200. The separation authority determined his service did not rise to the level required for an honorable discharge. 3. The advising psychologist found no evidence of a diagnosis of PTSD or any other behavioral health condition during his period of service. The psychologist further noted that the presence of potentially untreated PTSD during his service does not mitigate his actions, as the symptoms of PTSD are not reasonably related to the behaviors he exhibited at the time. The advising psychologist did not find evidence that would support a change to the characterization of service in this case. 4. In response to the advisory, the applicant recounted his reaction to a traumatic event. 5. This Board has been directed to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on mental health conditions, including PTSD. The Board is to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160013095 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160013095 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2