IN THE CASE OF:    

		BOARD DATE:  3 February 2015		  

		DOCKET NUMBER:  AR20140005771 


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 correction of his military records to upgrade his undesirable discharge (UD) to general, under honorable conditions discharge (GD).

2.  The applicant states:

   a.  a few months after his enlistment, he was court-martialed for being absent without leave (AWOL) when he did not return from a 3-day pass on time;
   
   b.  although his sentence included a forfeiture of two-thirds pay per month for 6 months, his pay completely stopped within a couple months;
   
   c.  he later learned he was charged with fraudulent enlistment and given an option by his first sergeant (1SG) to sign a waiver to remain on active duty or if he chose not to sign the waiver, to be sent home without any record of his service in the Army;
   
   d.  his 1SG also informed him that because his record would be wiped clean to show he never officially served in the Army, there would be no record of his court-martial;
   
   e.  after a few more months, one-third of his pay was restored and he learned his court-martial remained on his record, which caused him to go AWOL ultimately landing him in the stockade at Fort Bliss, Texas; 
   
   g.  a psychiatrist diagnosed him with schizophrenia with antisocial behavior, and as such a psychological illness is just as bad as a physical illness; 
   
   h.  he should have been diagnosed with post-traumatic stress disorder (PTSD) brought on by the stressful situation of having to go an extended period without pay; and
   
   i.  he was under a lot of stress, young, and just lost it; and
   
   j.  considering all of the facts in his case, his discharge should be upgraded to a GD or he should be given a medical discharge.

3.  The applicant provides copies of:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* Self-Authored Statement
* Official Military Personnel File (OMPF) document extracts
* National Personnel Records Center (NPRC), Letter dated 13 March 2014

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 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's OMPF includes a DD Form 4 (Enlistment Record – Armed Forces of the United States) prepared during his enlistment processing dated 8 June 1961.  The applicant marked the "NO" block and entered his initials in the following items as indicated:

* Item 27 - "HAVE YOU EVER BEEN ARRESTED, CHARGED, OR HELD BY FEDERAL, STATE, OR OTHER LAW ENFORCEMENT AUTHORITIES FOR ANY VIOLATION OF ANY FEDERAL LAW, STATE LAW, COUNTY OR MUNICPAL LAW, REGULATION OR ORDNANCE?"
* Item 28 – "HAVE YOU EVER BEEN CONVICTED OF A FELONY OR ANY OTHER OFFENSE, OR ADJUDICATED A YOUTHFUL OFFENDER OR JEVENILE DELINQUENT"

3.  The applicant enlisted in the Regular Army on 8 June 1961.  He completed his initial entry training and was awarded military occupational specialty 111.00 (Light Weapons Infantryman).

4.  His OMPF contains an AGPZ Form 55 (FBI Reports – Requests for Information and Action) dated 12 July 1961, which shows:

   a.  On 24 July 1961, the Adjutant General (AG), Washington, DC, forwarded the applicant's commanding general (CG) a Federal Bureau of Investigation (FBI) Report which shows the applicant was arrested on 27 March 1961, for grand larceny.
   
   b.  The AG requested an investigation be conducted to ascertain all facts regarding said offense(s) and charge(s).
   
   c.  If the applicant concealed information which would have made him ineligible for acceptance in the Army, action will be taken in accordance with paragraphs 13b and 13d of Army Regulation 635-206 (Personnel Separations- Discharge-Misconduct).

5.  His OMPF includes Deputy AG, Fort Sam Houston, 14th Endorsement, Subject:  Fraudulent Entry, dated 22 December 1961.  It shows a request to retain the applicant on active duty under the provisions of paragraph 12b, Army Regulation 635-206, was approved.

6.  A DA Form 26 (Record of Court Martial Conviction) shows the applicant was twice convicted by a special court-martial (SPCM) on the following dates as indicated:

   a.  On 26 September 1961, he was convicted for being AWOL from 
8 – 14 September 1961 and sentenced to confinement at hard labor for 6 months (suspended until 25 March 1962) and forfeiture of $50.00 pay per month for 3 months.
   
   b.  On 23 April 1963, he was convicted for being AWOL from 17 January – 7 February 1963 and from 4 – 22 March 1963.  He was sentenced to confinement at hard labor for 6 months and forfeiture of $55.00 pay per month for 6 months.

7.  The applicant's DA Form 24 (Service Record) shows in Section 10 (Remarks) he was apprehended by civil authorities in Dexter, New Mexico for the charge of "interstate transfer of a stolen motor vehicle.  On 22 March 1963, he appeared before the U.S. District Court in Albuquerque, New Mexico, where the charges were dropped and he was returned to military control.

8.  On 23 May 1963, the applicant underwent a psychiatric examination which found the applicant:

* was mentally responsible
* able to distinguish right from wrong and adhere to the right
* he had the mental capacity to understand and participate in separation proceedings
* had no disqualifying mental or physical defects sufficient to warrant consideration by a Physical Evaluation Board or other medical channels
* should appear before a Board of Officers convened under the provisions of Army Regulation 635-208 (Personnel Separations-Discharge-Unfitness), with a view of a separation from military service because of undesirability

9.  On 12 June 1963, the applicant acknowledged he had been notified of the separation action pending against him and that he had been furnished a copy of the commanding officer's report and statements supporting the recommendation for discharge.  He further indicated that he was offered military counsel, but waived his right to counsel.  The applicant waived his right to a hearing by a board of officers and he elected not to submit statements in his own behalf.

10.  On 12 June 1963, the applicant’s unit commander recommended the applicant be discharged from service under the provisions of Army Regulation 635-208, by reason of unfitness and recommended that the applicant receive a UD.  The commander cited the applicant's unsatisfactory conduct and inefficiency and disciplinary history, which included three AWOL offenses, two court-martial convictions, and his apprehension by civil authorities for auto theft, as the basis for taking the separation action.

11.  The final action taken by separation authority is not on file.  However, there is a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) on file that shows:

* the applicant was discharged from active duty under the provisions of Army Regulation 635-208, with a UD on 26 June 1963
* he completed a total of 1 year, 8 months, and 2 days of creditable active military service and accrued 137 days of time lost
* he was assigned a separation program number (SPN) of 28B, for unfitness (frequent involvement in incidents of a discreditable nature with civil and military authorities)

12.  The applicant submitted a DD Form 293 with his application to this Board.  However, he exceeded the Army Discharge Review Board's 15-year statute of limitations to appeal for a discharge upgrade.

13.  Army Regulation 635-208, then in effect, set forth the basic authority for separation of enlisted personnel for unfitness.  The regulation stated that individuals would be discharged by reason of unfitness with an undesirable discharge, unless the particular circumstances in a given case warranted a general or honorable discharge, when it had been determined that an individual's military record was characterized by frequent incidents of a discreditable nature with civil or military authorities.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 13-5a(1) provided for the separation of enlisted personnel for unfitness.  Individuals separated by reason of unfitness were normally furnished a UD at the time.

	b.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  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.  

15.  Title 10, U.S. Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

16.  On 29 September 2014, the applicant's psychologist diagnosed him with having a major depressive disorder, recurrent, moderate, PTSD.  This diagnosis was based on the seven times the psychologist saw the applicant between 2008 and 2014.  The applicant reported that he tended to bottle things up and found it hard to come to therapy.  During this limited contact, the applicant reported he was traumatized by events he encountered while serving in the Army.  He said he turned to drugs and alcohol for many years to cope with this trauma.  He developed a malevolent demeanor and pushed everyone away and lost his family in the process.  He became withdrawn and depressed.  The psychologist stated that it appeared more likely than not that the applicant met the criteria for PTSD including recurrent and intrusive distressing recollections of the event, persistent avoidance of stimuli associated with the trauma, outbursts of anger, and a heightened startle response.

17.  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.

18.  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. 

19.  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.

20.  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.

21.  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?

22.  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 causal relationship of symptoms to the misconduct.

23.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) paragraph 2-9 provides that the Board 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. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected by upgrading his undesirable discharge to honorable or a medical discharge because he served an extended period of service without pay for which he should have diagnoses with PTSD.  There is no evidence to support this claim.

2.  The evidence of record confirms the applicant falsely answered questions during his enlistment processing resulting in his fraudulent entry.  However, the appropriate authority approved a request to retain him on active.  Subsequently, he was twice convicted by court-martial for three separate AWOL offenses and during his last period of AWOL he was apprehended by civilian authorities for interstate transfer of a stolen motor vehicle.  While his record does not show and the applicant failed to provide any evidence to show he served on active duty during any period without pay, any loss in pay resulted from SPCM sentences he received.

3.  His discharge processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant’s record documents no acts of valor or significant service warranting special recognition and as a result his discharge accurately reflects his overall record of undistinguished service.  His overall record of service and extensive disciplinary history did not support the issue of a general or an honorable at the time of his discharge, and does not support an upgrade at this time.

5.  Finally, there is no evidence of record to show the applicant suffered from a medical or mental condition that would have warranted his processing through medical channel.  In addition, a psychologist evaluation cleared the applicant for separation during his discharge process.  Lastly, there is no convincing evidence showing the applicant suffered or experienced any specific traumatic events during his military service to lead to a PTSD diagnosis.

6.  In view of the above, the applicant's request should be denied.

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 that 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)                                         AR20140005771





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ABCMR Record of Proceedings (cont)                                         AR20140005771



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