IN THE CASE OF:  	  

		BOARD DATE:    17 December 2014

		DOCKET NUMBER:  AR20140005726 


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:

The applicant provides all statements and evidence through counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests an upgrade of the applicant's under other than honorable conditions (UOTHC) discharge and correction of the applicant's DD Form 
214 (Certificate of Release or Discharge from Active Duty) to show:

* foreign service changed to 7 months and 8 days
* Parachutist Badge
* Combat Infantryman Badge (CIB)
* Expert Infantryman Badge (EIB)
* Good Conduct Medal (GCMDL)
* Southwest Asia Service Medal (SWASM) with bronze service star
* campaign service for Defense of Saudi Arabia and Liberation of Kuwait 900808 - 910315

2.  Counsel states, in effect, the applicant was deployed during the Southwest Asia Conflict/Gulf War and earned the awards and decorations specified.  Additionally, the applicant has been diagnosed with post-traumatic stress disorder (PTSD) and contends that PTSD was the catalyst for his misconduct.  His service was otherwise meritorious and, as such, his character of service should be upgraded.

3.  Counsel provides:
* memorandum of agreement
* an undated letter
* a six-page justification
* 3 family member statements of support
* two medical documents
* unit history
* DD Form 214
* 4 orders
* Junior Reserve Officers’ Training Corps (JROTC) Certificate
* DA Form 4187 (Personnel Action)
* Memorandum

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 May 1988.  He was awarded military occupational specialty 11C (Indirect Fire Infantryman).  The highest rank/grade he attained during his military service was specialist four/E-4 on 1 June 1990.

3.  Available records show the applicant:

* was awarded the Parachutist Badge per Headquarters, United States Army Infantry Center, Fort Benning, GA, Permanent Orders (PO)
172-18, dated 6 September 1988
* had foreign service while deployed with his unit to Southwest Asia from 
8 August 1990 through 15 March 1991
* he participated in 2 campaigns:  the Defense of Saudi Arabia and the Liberation and Defense of Kuwait
* earned the EIB per Headquarters, 82d Airborne Division, Fort Bragg, NC, PO 136-26, dated 20 July 1989
* earned the CIB per Headquarters, 82d Airborne Division, Fort Bragg, NC, PO 96-114, dated 18 May 1991
* earned the GCMDL per Headquarters, 82d Airborne Division, Fort Bragg, NC, PO 115-11, dated 25 June 1991

4.  On 6 November 1991, the applicant departed his unit in an absent without leave (AWOL) status and on 6 December 1991, he was dropped from the Army rolls as a deserter.

5.  He surrendered to military authorities on 9 January 1992.  He was attached to the U.S. Army Personnel Control Facility (PCF), Fort Knox, KY, pending disposition of his case.  

6.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his records contain: 

	a.  A memorandum from the applicant to the Commander, PCF, wherein the applicant admitted to knowingly, willingly, and voluntarily being AWOL from 
6 November 1990 to 9 January 1991.  He indicated he was advised by counsel that his records had not been received and that counsel could not completely advise him without the complete records.  Nevertheless, knowing all of this to be true, he waived all defenses that may have become known had his defense counsel been able to review his records.  He added that his counsel explained to his complete understanding and satisfaction all the legal and social ramifications of the type of discharge that he could receive. 

	b.  A duly-constituted DD Form 214 that shows he was discharged under other than honorable conditions on 12 March 1992 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 
10, for the good of the service, under conditions other than honorable.  It also shows:

* he completed a total of 3 years, 7 months, and 14 days of creditable active military service, with 65 days lost time due to being in an AWOL status
* item 12f (Record of Service - Foreign Service) shows 00 years, 00 months and 00 days
* item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) shows the Army Service Ribbon and National Defense Service Medal 

7.  There is no indication in the applicant's personnel service record showing he sought assistance from his chain of command for any behavioral health-related issue, or notified his chain of command that his disciplinary problems were in any way a result of PTSD or any other behavioral health-related issue.

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

9.  Provided by counsel, an individual progress note from a private provider dated 19 December 2012 diagnosed the applicant with PTSD.  This diagnosis was based upon traumatic civilian casualties [caused during the Gulf War] relayed by the applicant which caused him severe guilt.  He has received mental health treatment on 68 occasions since 2009.  The provider identified PTSD symptoms, endorsed by the applicant, to include:

* severe depressed mood with anhedonia and fluctuating energy
* profound insomnia due to trauma-related nightmares
* intrusive memories
* hypervigilence and irritability
* emotional detachment
* profound shortened sense of future

10.  Also in his narrative, the provider notes a pattern of homelessness and a history of substance abuse.  He states the applicant also suffers from chronic pain as a result of a gunshot wound to the leg received in 1996.  The applicant underwent 4 surgeries including a bone graft and rod placement.  

11.  Also provided by counsel, is a clinical assessment, dated 1 December 
2010 , made by a psychiatric emergency services registered nurse which details a history of substance abuse, self-injury, suicide ideation, and suicide attempts.  Under the heading of "Self-Injuries" is noted the gunshot wound to his leg was self-inflicted.

12.  Army Regulation 600-8-22 (Military Awards) states:

	a.  The SWASM is awarded to all members of the Armed Forces of the United States serving in Southwest Asia and contiguous waters or airspace there over, on or after 2 August 1990 to 30 November 1995.  To be eligible, the service member must be:

* attached or regularly serving for one or more days with an organization participating in ground or shore (military) operations
* be serving on temporary duty for 30 consecutive days or 60 nonconsecutive days; these limitations may be waived for people participating in actual combat operations
* one bronze service star will be worn on the suspension and service ribbon of the SWASM for participation in each designated campaign

	b.  The Kuwait Liberation Medal - Saudi Arabia (KLM-SA) is awarded by the Kingdom of Saudi Arabia (KLM-SA) was approved on 3 January 1992 and is awarded to members of the Armed Forces of the United States who participated in the Persian Gulf War between 17 January 1991 and 28 February 1991.

	c.  The Kuwait Liberation Medal - Government of Kuwait (KLM-K) is awarded by the Government of Kuwait (KLM-K) was approved on 9 November 1995 and is awarded to members of the Armed Forces of the United States who participated in the Persian Gulf War between 2 August 1990 and 31 August 1993.

13.  Army Regulation 635-5 (Personnel Separation Documents), in effect at the time, outlined policies and procedures for separation documents, to include the DD Form 214.  There is no requirement to separately add campaign service.

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

   a.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

   b.  Paragraph 3-7a provides an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance.  

   c.  Paragraph 3-7b states 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.

15.  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."

16.  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.

17.  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

18.  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.  

19.  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.

20.  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?

21.  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.  With respect to the characterization of service: 

	a.  The applicant’s record is void of the complete facts and circumstances that led to his voluntary discharge.  However, his record contains a DD Form 214 that shows he was discharged on 12 March 1992 under the provisions of chapter 10 of Army Regulation 635-200, in lieu of a court-martial. 

	b.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200 required the applicant to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by a court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no information that would indicate the contrary.  Further, it is presumed that the applicant’s discharge accurately reflects his overall record of service.

	c.  No evidence has been presented which shows the applicant was not properly and equitably discharged in accordance with the regulations in effect at the time and that all requirements of law and regulations were not met or that the rights of the applicant were not fully protected throughout the separation process.  Absent such evidence, regularity must be presumed in this case.

	d.  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.  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.

	e.  Counsel provides compelling evidence the applicant suffers from symptoms of PTSD, with a history of substance abuse and suicide ideation.  Counsel contends the PTSD is a result the applicant's combat experiences and maintains PTSD was the strongest contributing cause for the applicant to go AWOL.  The applicant's 65 days of lost time as a result of being AWOL was the basis, counsel contends, for court-martial charges and the subsequent chapter 10 discharge.

	f.  The DD Form 214 does show 65 days of lost time for AWOL, and this is an offense under the UCMJ which could result in a court-martial fitting the requirements for chapter 10, Army Regulation 635-200.  

	g.   Despite the absence of complete information regarding the court-martial charges preferred against the applicant, his record is void of any serious previous misconduct during this period of service and the misconduct of going AWOL appears to have been an isolated event that was the result of an uncharacteristic lapse in judgment.

	h.  It is concluded that the PTSD conditions were a causative factor in the misconduct that led to the discharge.  After carefully weighing that fact against the severity of the applicant's misconduct, there is sufficient mitigating evidence to warrant upgrading the characterization of the applicant's service to a general discharge under honorable conditions.

2.  With respect to his foreign service, the evidence shows the applicant served in Southwest Asia from 8 August 1990 to 15 March 1991, a period of 7 months and 8 days.  Therefore, he is entitled to correction of his DD Form 214 to show this service.

3.  With respect to his awards: 

	a.  PO awarded him the Parachutist Badge, the EIB, the CIB, and the GCMDL.  Therefore, he is entitled to correction of his DD Form 214 to show these awards.

	b.  He served a qualifying period of service for the award of the SWASM.  Additionally, records show he participated in both the Defense of Saudi Arabia and the Liberation and Defense of Kuwait campaigns; therefore, he is authorized to display the SWASM with 2 bronze service stars and is entitled to correction of his DD Form 14 to show this award.

	c.  He served a qualifying period of service for the award of both the KLM-SA and KLM-K.  He should therefore receive this award and it should be reflected on his DD Form 214.

	d.  The applicant requests to add campaign service for the Defense of Saudi Arabia and the Liberation and Defense of Kuwait to his DD Form 214.  This information is calculated in the foreign service block of his DD Form 214 and in authorizing 2 bronze service stars for his SWASM.  They are not otherwise authorized for entry on the DD Form 214.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by

	a.  Re-issuing the applicant's DD Form 214 for the period ending 12 March 1992 to show the characterization of service as "General, Under Honorable Conditions" and his rank/grade as SPC/E-4 with an effective date of 1 June 1990;

	b.  deleting the entry in Item 12f of his reissued DD Form 214 the entry   "0000-00-00" and adding the entry "000-07-08"; and

	c.  correcting Item 13 of the reissued DD Form 214 to add the Good Conduct Medal (1st Award), Southwest Asia Service Medal with two bronze service stars, Kuwait Liberation Medal - Saudi Arabia,  Kuwait Liberation Medal - Government of Kuwait, Combat Infantryman Badge, Expert Infantryman Badge, and Parachutist Badge.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the listing campaigns separately on the DD Form 214.



      _______ _   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)                                         AR20140005726



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ABCMR Record of Proceedings (cont)                                         AR20140005726



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