IN THE CASE OF:	   

		BOARD DATE:	  30 December 2014

		DOCKET NUMBER:  AR20140005493 


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.

2.  The applicant states, in effect, that he has been diagnosed with post-traumatic stress disorder (PTSD) and his PTSD was the catalyst for his misconduct.  He states that upon returning from Iraq, he had just turned 18 years old and had begun to have drinking problems and problems with his noncommissioned officer (NCO).  He felt his career was destroyed due to the lack of attention to these matters and he was unjustly chaptered.  Now at 41 years of age, he cannot hold a job because of his PTSD and severe depression.  He is maintaining his sobriety and would like to have his benefits reinstated and his discharge upgraded in order to receive treatment, medication, counseling, and education benefits from the Department of Veterans Affairs (VA).  

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and a self-authored statement.

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 19 July 1990, at the age of      17 years and 9 months.  

3.  Item 5 (Overseas Service) of his DA Form 2-1 (Personnel Qualification Record – Part II) shows he served in Saudi Arabia from 1 January to 24 March 1991.  He returned from Saudi Arabia at the age of 18 years and 3 months.

4.  His record contains a disciplinary history that includes:

	a.  11 DA Forms 4856 (General Counseling Form) that document counseling sessions between 6 May 1991 and 29 September 1992, for failure to be present for duty at the appointed time and place, failure to prepare for room inspections, falsifying military documents, drinking while on the division readiness force (DRF), drinking under age, being drunk on duty, violation of restriction, a returned check due to insufficient funds, and disrespect to an NCO.
	
	b.  his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

		(1)  11 June 1992, for previous wrongful overindulgence of intoxicating liquors or drugs and being incapacitated for the proper performance of his duties on 4 June 1992.  His punishment consisted of reduction from private first class (PFC)/E-3 to PV2/E-2 unless vacated; and 

		(2)  9 July 1992, for breaking restriction on 19 June 1992.  His punishment consisted of reduction from private/E-2 to private/E-1.

	c.  a DA Form 4126-R (Bar to Reenlistment Certificate), which shows that on      13 July 1992 a locally imposed bar to reenlistment was initiated.  His commander stated that the basis for the bar to reenlistment was his receipt of a company-grade Article 15 for being incapacitated for the proper performance of his duties, drunk while on DRF, nonpayment of debts, not present for duty, not maintaining a vehicle in good working order, and not being prepared for a room inspection.  On the same date, he received formal counseling for the bar to reenlistment, and on 6 July 1992, the bar to reenlistment was approved. 

5.  His record contains a Report of Mental Status Evaluation, dated 13 July 1992, wherein the examining physician determined he was mentally responsible and psychiatrically cleared him for any administrative action deemed necessary by the command.

6.  On 29 September 1992:

	a.  he was notified by his unit commander that separation action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) paragraph 14-12b, due to patterns of misconduct.

	b.  he acknowledged receipt of the proposed separation action against him and consulted with legal counsel.  He was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and of the effect of any action taken by him in waiving his rights.

	c.  his company commander recommended his discharge under the provisions of Army Regulation 635-200, paragraph 14-12b due to his:

* being drunk on duty on three occasions 
* drinking underage
* falsifying an identification card
* drinking on while on the DRF
* failure to follow instructions

7.  On 28 October 1992, the separation authority directed that an administrative separation board be convened to determine his fitness for continued military service.

8.  On 16 November 1992, the administrative separation board recommended that he be separated with an under other than honorable conditions discharge, in accordance with Army Regulation 635-200, paragraph 14-12b, due to patterns of misconduct.

9.  On 8 December 1992, the separation authority approved his separation under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of patterns of misconduct.  He directed the applicant be furnished an under other than honorable conditions discharge.

10.  On 29 December 1992, the applicant was discharged accordingly after completing 2 years, 5 months, and 11 days of creditable active service.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, with service characterized as under other than honorable conditions.  He was assigned a separation code of "JKM" and a narrative reason of separation as "misconduct - pattern of misconduct."

11.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally considered appropriate.

	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.

13.  PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster.  The Diagnostic and Statistical Manual of Mental Disorders (DSM), published by the American Psychiatric Association (APA), 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." 

14.  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.

15.  The DSM fifth revision (DSM-V) 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. 

16.  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.  

17.  In view of the foregoing, 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 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.

18.  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?

19.  Although the 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 causeal relationship of symptoms to the misconduct.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's discharge proceedings, for misconduct, were conducted in accordance with law and regulations in effect at the time.  The characterization of the applicant's discharge was commensurate with the reason for discharge and overall record of military service in accordance with the governing regulations in effect at the time.

2.  At the time of the applicant's discharge, PTSD was largely unrecognized by the medical community and DoD.  However, 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.

3.  Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible re-characterization of their overall service.

4.  There is no evidence nor did he not provide any evidence that shows he was diagnosed with PTSD, or that he raised his mental conditions as a possible reason for his misconduct at the time.  He provides no evidence now to show he has been diagnosed with service-connected PTSD or other mental condition.  
 
5.  His record shows he was 18 years of age at the time of his offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

6.  The evidence of record shows he was recommended for separation under the provisions of Army Regulation 635-200, paragraph 14-12b, for patterns of misconduct.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

7.  The evidence of record shows he received 11 counseling statements, two field-grade Article 15s for offenses under the UCMJ, was recommended for separation by an Administrative Separation Board, and was separated with an under other than honorable discharge for a pattern of misconduct for drinking and other misconduct.  Based on this record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a general discharge under honorable conditions.

8.  In view of the foregoing, there is insufficient evidentiary basis for granting the applicant's requested relief.  

BOARD VOTE:
________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ____x___  ____x____  DENY APPLICATION

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.



ABCMR Record of Proceedings (cont)                                         AR20140005493





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ABCMR Record of Proceedings (cont)                                         AR20140005493



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