ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 July 2020 DOCKET NUMBER: AR20180003582 APPLICANT REQUESTS: in effect, reconsideration of his previous request for an upgrade of his discharge under other than honorable conditions to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552), dated 23 January 2018 * DD Form 149, dated 16 April 2015 * DD Form 214 (Report of Separation from Active Duty) for the period ending 30 June 1977 * DD Form 4 (Enlistment/Reenlistment – Armed Forces of the United States), dated 27 June 1980 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 23 December 1988 * Psychiatric Assessment, Lifecore Health Group, dated 28 August 2018 * Statement, dated 4 September 2018 REFERENCES: 1. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. Chapter 10 provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court- martial. The request could be submitted at any time after charges were preferred and must have included the individual's admission of guilt. A discharge under other than honorable conditions was normally appropriate for a Soldier discharged in lieu of trial by court-martial. However, the separation authority could direct a general discharge if such were merited by the Soldier's overall record during the current enlistment. When a member is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade. 2. 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. a. In 1980, the APA added post-traumatic stress disorder (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." b. 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. 3. As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis, and treatment of PTSD, the Department of Defense 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 discharges. It is also acknowledged that in some cases this undiagnosed condition of PTSD may have been a mitigating factor in the Soldiers' 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 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. 4. 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 under other than honorable conditions and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicants' service. 5. 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, on 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. 6. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Service BCM/NRs regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20150007277 on 11 February 2016. 2. The applicant submitted medical treatment records which were not previously considered by the Board and warrant consideration at this time. 3. The applicant states he was traumatized by a shooting at a club by a Soldier and his ex-wife. He has a good period of service prior to the discharge under than other honorable conditions. After the shooting, he had to learn how to walk again. He became addicted to pain killers and was not making correct decisions. He was young and mentally affected by this shooting and also the death of two roommates. As a homeless veteran, it has been a very humbling experience and has given him the time to reflect on his past troubles. He was a good Soldier until he was shot, when he became addicted to morphine. He saw two of his fellow Soldiers die: one on the airfield and another in an airplane crash. He didn't realize he had PTSD, which he is currently coping with through counseling every week. 4. He enlisted in the Regular Army on 8 July 1974 for a period of 3 years beginning in the rank/grade of private/E-2. 5. He was advanced to the rank/grade of specialist four/E-4 effective 21 July 1975. 6. He served in Korea from January 1976 through February 1977. 7. On 30 June 1977, he was honorably discharged for the purpose of immediate reenlistment. His DD Form 214 shows he completed 2 years, 11 months, and 23 days of net active service during this period. 8. On 1 July 1977, he reenlisted for a period of 3 years beginning in the rank/grade of specialist four/E-4. 9. On 13 April 1979, nonjudicial punishment was imposed against him under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being disorderly in quarters. His punishment consisted of reduction in rank/grade to private first class/E-3 (suspended for 60 days), forfeiture of $100.00 pay (suspended for 60 days), and extra duty for 14 days. The remainder of the DD Form 2627 (Record of Proceedings under Article 15, UCMJ, is not legible to review his appeal election. 10. On 4 April 1980, nonjudicial punishment was imposed against him under the provisions of Article 15, UCMJ, for being absent without leave (AWOL) from 22 March 1980 through 31 March 1980. His punishment consisted of restriction for 14 days to Pine Bluff Arsenal, extra duty for 14 days, and reduction in rank/grade to private/E-2 (suspended for 60 days). The DD Form 2627 does not show his appeal election. 11. On 26 May 1981, he departed his unit in an AWOL status. He returned to military control on 10 June 1981. 12. Block 35 (Record of Assignments) of his DA Form 2-1 (Personnel Qualification Record – Part II) shows he was hospitalized at the Womack Army Hospital, Fort Bragg, NC, from 10 June through 29 August 1981. 13. He was AWOL again on 31 August 1981 and was dropped from the Army rolls as a deserter on 30 September 1981. He was apprehended by civil authorities in Cumberland County, NC, and returned to military control on 10 June 1982. 14. The next day, 11 June 1982, he departed his unit in an AWOL status. He returned to military control on 9 November 1988. He was assigned to the Personnel Control Facility at Fort Knox, KY, for disposition. 15. On 7 December 1988, court-martial charges were preferred against the applicant for three specifications of being AWOL from 26 May 1981 through 10 June 1981, from 31 August 1981 through 10 June 1982, and from 11 June 1982 through 9 November 1988. 16. On 8 December 1988, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense(s) punishable under the UCMJ, the maximum permissible punishment authorized, the possible effects of a request for discharge, and the procedures and rights available to him. Following consultation with legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. In his request for discharge, he acknowledged: * he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person * he understood by requesting a discharge he was admitting guilt to the charges against him, or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a dishonorable discharge * he understood if the discharge request was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (now known as the Department of Veterans Affairs), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws * that under no circumstances did he desire further rehabilitation or to perform further military service * he elected to submit a statement in his own behalf 17. In his statement in his own behalf, he stated he was AWOL due to family and personal problems. His wife had left him and took their children. He did not know where she went and decided to look for her. He drank heavily. He remained AWOL for about 5 years. He then began going to church to improve his life. He knew what he did was wrong and asked for forgiveness and a second chance. He wanted to continue his service in the Army. 18. On 15 December 1988, consistent with the chain of command's recommendations, the separation authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. He directed the applicant's discharge under other than honorable conditions and his reduction to the lowest enlisted grade. 19. He was discharged on 23 December 1988 in the rank/grade of private/E-1. His DD Form 214 shows in: * item 12c (Net Active Service This Period) – 4 years, 2 months, and 22 days * item 12d (Total Prior Active Service) – 2 years, 11 months, and 23 days * item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) – * Army Service Ribbon * National Defense Service Medal * Army Commendation Medal * Army Good Conduct Medal (2nd Award) * item 24 (Character of Service) – Under Other Than Honorable Conditions * item 25 (Separation Authority) – Army Regulation 635-200, Chapter 10 * item 28 (Narrative Reason for Separation) – Good of the Service – in Lieu of Court-Martial * item (Dates of Time Lost During This Period) – * 22 March 1980-30 March 1980 (9 days) * 26 May 1981-9 June 1981 (15 days) * 31 August 1981-9 June 1982 (283 days) * 11 June 1982-8 November 1988 (2,343 days) 20. On 11 February 2015, the ABCMR denied his request for an upgrade of his discharge. The Board stated that based on his record of indiscipline, which included two instances of nonjudicial punishment and an extensive history of AWOL, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. His misconduct also rendered his service unsatisfactory. The Board determined there was insufficient evidence to support upgrading his discharge. 21. On 28 August 2018, Dr. L____, Lifecore Health Group, completed a psychiatric assessment of the applicant wherein she stated this was an unusual case. The visit was about the applicant getting military disability compensation. Right away, the applicant stated he needed a letter advising the Army Review Boards Agency that he has a list of self-reported diagnoses that he had listed on a sheet of paper. She noted that it did not seem that the applicant met the full criteria for PTSD. When she asked about his anxiety, nerves, and worry, he stated "look at what this paper says!" After just one interview, she does not believe she can agree with all the diagnoses on his paper. He did not seem to meet criteria for some of the diagnoses listed at this time. He denied depressive symptoms. With regard to PTSD, he did not express any persistent avoidance, negative alterations, or alterations in arousal. To give him the self-reported diagnoses he is requesting, she would have to conduct further interviews. a. Dr. L____ noted the applicant reported a history of abuse/trauma and stated he had a "nervous breakdown" while in the Army. b. Her assessment includes adjustment disorders with anxiety, personality disorders, and unspecified trauma and stressor-related disorder. The applicant has been prescribed medication by another provider and does not feel he needs additional medication. He will return in 3 months or as needed. 22. The applicant's statement, dated 4 September 2018, states he was normal based on his medical records when he went into the Army. When he was put under extreme daily pressure from his chain of command, he became ill and suffered a nervous breakdown. In November 1980, he was diagnosed with a "mix personality disorder." He was misled by his chain of command who told him the quickest way out was to be administratively separated. He was sick and not in his right state of mind when he was offered the discharge. He waived his rights after being advised by an Army lawyer who worked for the command. Three years after his discharge, he applied to the ABCMR to upgrade his discharge. He is still suffering from mental illness, to include PTSD, brain injury, trauma over stress, stress disease, dysphoric mental retardation disease, and bipolar disorder, as diagnosed by Dr. N____ in August 2018. He is simply requesting that this gross injustice be corrected and classification of his service as a medical discharge. 23. The applicant's medical treatment records from Dr. N____ or other medical professionals were not provided. 24. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: a. While liberal consideration guidance was applied, the applicant is not service connected for PTSD. The applicant has undergone several objective neuro/psychological assessments, been evaluated in a 24 hr. inpatient setting on two occasions, and attended treatment with multiple providers with consistent diagnoses of Substance-Induced Mood Disorder and various Substance Use Disorders. At other times, he has been diagnosed with forms of depressive or anxiety disorders in reaction to stressors rather than military service; these are also not service connected. While one provider listed PTSD in 2019, this was based on self-report and countered by all other VA records. Moreover, providers have documented self-report is unreliable as the applicant has been dishonest and secondary gain was a factor. Furthermore, the submitted civilian intake again highlighted secondary gain and psychological testing suggested malingering; he was not diagnosed with PTSD. Accordingly, an upgrade is not recommended. b. Due to the period of service, active duty electronic medical records are void. Active duty hard copy medical were unavailable. In the applicant’s packet, he noted in-service providers diagnosed a Personality Disorder. c. The applicant is 10% service connected for Tinnitus, a non-behavioral health condition. In January 2014, the applicant saw behavioral health reporting depression secondary to losing his auto repair and towing business he’d had since 1990; he requested help with filing for bankruptcy to keep his home. He reported taking an anti- anxiety medication a few years prior; otherwise no behavioral health history. The applicant reported stressors included his son being incarcerated, legal fees for his son, and pending loss of rental home and other assets. He noted an 18 month incarceration for forgery in 1994; however later reported in 2018 he was incarcerated for burglary not forgery. Additionally, the applicant was arrested for pawning a gun in 2012 because he was a “convicted felon” and could not own a gun. He received two years’ probation. The applicant was also arrested for a DUI in 2014. The provider diagnosed Major Depressive Disorder with further evaluation for Alcohol and Cannabis Use Disorder. In June, the applicant went to social work requesting financial help as foreclosure was pending. The applicant returned in January 2016 requesting food, clothing, housing and dental work. He noted ongoing psychosocial stressors leave him feeling overwhelmed; son’s incarceration, staying with friends after losing his home, and brother’s suicide. He reported excessive drinking, using marijuana, and on occasion cocaine. The applicant had a September contact for similar requests. He denied being exposed to trauma including injury or being in danger. He was diagnosed with Cocaine Abuse, Alcohol Use Disorder, and Depressive Disorder NOS. In August 2017, the applicant went to the ER stating he needed admission as he was suicidal due to homelessness and substance use. The applicant reported violent thoughts “towards anyone.” Although reporting homelessness, the applicant stated “I have a lot of money, that’s not why I’m here.” The applicant denied abuse in-service, being in an accident in which he was badly hurt or someone else was killed, sudden death of a close friend or loved one, or threatened with death or serious harm. During the hospital stay, the providers noted he increased symptom reports when discussion of discharge occurred to “justify continuing his admission;” although he had reached maximal benefit and was psychiatrically stable. The providers noted the pattern was “approaching malingering for the purpose of finding the most comfortable and the most preferred place to discharge to” and seen during the day and evening “socializing, talking, laughing, being the center of attention, joking, enjoying the attention. He does not display any acute MH symptoms.” The providers did not believe he truly intended to receive substance treatment as this was brought up as a convenient reason to remain inpatient. Rather, his initial request for, “housing in a nice place where me and my wife … can live in peace and quiet together, that’s all … can you do that for me?” was the goal. The applicant’s discharge diagnoses were Substance Induced Mood Disorder, Cocaine Use Disorder, and Alcohol Use Disorder. d. The applicant completed a substance program intake reporting “he was shot in the chest 7 times in Vietnam;” however the applicant was not in Vietnam. In January 2018, the applicant attended a Vocational Rehabilitation intake noting consistent employment since discharge, that he was “good at communicating with people … I believe I never met a stranger,” was seen as “caring for others … I like everybody, everybody is a human being,” and was “responsible and dedicated to whatever I am involved in.” The applicant requested inpatient care in December 2018 noting substance use and suicidal ideation. He reported being a Vietnam vet; however providers noted he was never in Vietnam or any combat. The applicant reported going AWOL after a gunshot wound hospitalization because “I didn’t know where my wife was.” During the stay, providers documented concern for “secondary gain;” “talking to other patients about how long their stay was and continues to mention compensation documents.” While the applicant asserted PTSD, his discharge diagnosis was Substance-Induced Mood Disorder. He attended substance use group treatment from December 2018 to February 2019. In March 2019, the applicant saw a substance abuse medication prescriber asking the provider to complete disability paperwork. Based solely on the applicant’s self-report, the prescribed noted PTSD. His subsequent psychiatrist, and other involved providers, removed PTSD and retained Cocaine and Alcohol Use Disorder and Substance Induced Mood Disorder. In October 2019, the applicant had a neuropsychological evaluation reporting he was working as a head cashier/supervisor, was residing alone with no difficulties, he was managing finances, and overall denied impairment other than the forgetfulness he requested assessment for. After extensive testing, the provider diagnosed Major Depressive Disorder (MDD) and Generalized Anxiety Disorder (GAD) noting intact cognitive functioning. The applicant saw a psychologist in January 2020 with diagnoses of Cocaine and Alcohol Use Disorders. e. The applicant submitted an August 2018 intake note. The provider indicated the applicant arrived wanting certain diagnoses documented for ARBA; he specifically noted intent to obtain a medical discharge and back pay. The applicant indicated he’d been told if he continues to apply, eventually he’d be given these. The provider indicated possession of a VA provider’s PTSD diagnosis; however the VA provider is not in his VA records and the one provider who listed a PTSD diagnoses did so in March 2019 rather than August 2018. The provider indicated access to psychological testing which highlighted malingering. The provider informed the applicant they could not give the diagnoses he was asking for until he was further evaluated. The provider diagnosed Personality Disorders, Adjustment Disorder with Anxiety, and Unspecified Trauma and Stressor Related Disorder rather than PTSD. 25. The Board should consider the applicant’s claim in accordance with published Department of Defense guidance for liberal consideration of discharge upgrade requests and equity, injustice and clemency determinations. BOARD DISCUSSION: After review of the application and all evidence, including the applicant’s statement and the ARBA Medical Advisory, the Board found insufficient evidence to grant relief and amend the decision of the ABCMR in Docket Number AR20150007277 set forth on 11 February 2016. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement, and did not find sufficient evidence to grant relief. The Board agreed with the ARBA Medical Advisory that there is insufficient evidence of PTSD that might have mitigated the discharge. Therefore, the Board agreed that the applicant’s discharge characterization is appropriate for the misconduct. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is insufficient to warrant amendment of the ABCMR's decision in Docket Number AR20150007277 set forth on 11 February 2016. 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. ADMINISTRATIVE NOTES: not applicable. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180003582 11 1