BOARD DATE:	  27 January 2015

		DOCKET NUMBER:  AR20140010329 


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 records as follows: 

* correction of his discharge and DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he received an honorable characterization of service
* reinstatement of all veterans benefits retroactive to his discharge date in February 1983
* retroactive payment of 90 days of accrued leave, denied at the time of discharge 
* reinstatement of service-connected Department of Veterans Affairs (VA) benefits
* reinstatement of his rank/grade of specialist four (SP4)/E-4 to the date of discharge

2.  The applicant states:

	a.  He was falsely accused of possessing with intent to sell marijuana.  There was nothing found on his person, in his home, or among his belongings.  It was simply hearsay.  His captain was a racist.  He had his personnel file and he was well aware of the sexual assault that occurred in 1980.  His captain made every attempt to harass and degrade him in front of others and deny him promotion until forced to do so by the command sergeant major (CSM) so he could start pathfinder school.  

	b.  He was sexually assaulted, raped, sodomized, beaten, and left for dead.  He was an 18-year old Soldier who was harassed at every post assigned, both in Germany and in Georgia.  [He also suffered] from alcohol abuse that ruined his life, continued unexplained medical problems to this date, hate crime, and post-traumatic stress disorder (PTSD). 

	c.  In July 1982, he received the only award given to the 43rd Engineer Battalion, a certificate of achievement for outstanding performance, being a true professional, a valuable asset, and a great credit to the Army.  He was also promoted to SP4 in October 1982 with less than 4 months.  How could he be such a good Soldier and be forced out of the Army? It does not make sense to him. 

3.  The applicant provides: 

* Congressional correspondence
* Letter from the National Personnel Records Center
* DD Form 214, ending on 11 February 1983
* Self-authored chronology of his service from 1978 to 1984
* Standard Form 519 (Radiographic Report), dated 30 May 1980
* Standard Form 513 (Consultation Sheet), dated 30 May 1980
* DA Form 3647-1 (Clinical Record Cover Sheet), dated 31 May 1970
* Orders 203-3, attachment to U.S. Army Garrison, Fort McPherson, GA 
* Standard Form 600 (Chronological Record of Medical care), dated 16 June 1980
* Post-service (self-authored) felony resolution problem
* Letter from the Georgia Department of Correction, dated 28 February 2000
* Petition for First Offended Discharge, dated 21 February 2000
* Georgia Warrant for Arrest, dated 14 June 1999
* Self-authored document related to psychological treatment
* Certificate of completion, Intensive Intervention Course, dated 10 March 1996
* Certificate of reinstatement of diver license, dated 2 August 2002
* Self-authored list of achievements 
* Multiple in-service and post-service certificates of training and achievements and diplomas 

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's records show he was born in July 1961.  He enlisted in the U.S. Army Reserve (USAR) at 17 years and 7 months of age on 14 February 1979.  

3.  He entered active duty for training (ADT) and completed required training for award of military occupational specialty (MOS) 64C (Motor Transport Operator).  He was honorably released from ADT to the control of his USAR unit.  His DD Form 214 shows he completed 4 months and 4 days of active service. 

4.  He was discharged from the USAR and subsequently enlisted in the Regular Army at 18 years of age on 18 July 1979.  He subsequently served in Germany from 4 October 1979 to on or about 1 October 1981.  He was assigned to:

* 54th Engineer Battalion from October 1979 to November 1980
* 317th Engineer Battalion from November 1980 to November 1981 

5.  Following his return from Germany, he was attached to U.S. Army Garrison, Fort McPherson, GA from 20 October 1981 to 18 November 1981 and then reassigned to Headquarters and Headquarters Company, 43rd Engineer Battalion, Fort Benning, GA. 

6.  On 4 February 1982, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty (Remedial Driving Class).  

7.  On 5 August 1982, his commanding officer disapproved awarding him the Army Good Conduct Medal for the period 19 September 1979 through 18 September 1982 citing his misconduct.  

8.  On 30 September 1982, Headquarters, U.S. Army Infantry Center, Fort Benning, GA published Order 273-367, advancing the applicant to SP4/E-4 effective 1 October 1982. 

9.  The complete facts and circumstances surrounding the applicant’s discharge action are not available for review with this case.  However, his record contains the following documents:

	a.  DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 10 December 1982.  This form shows the basis for the flag is a court-martial action and the synopsis provided is that the applicant was pending special court-martial empowered to adjudge a bad conduct discharge for possession and distribution of marijuana.  

	b.  Orders 39-345, issued by Headquarters, U.S. Army Infantry Center, Fort Benning, on 8 February 1983, reducing him in rank/grade from SP4/E-4 to private/E-1 effective 4 February 1983. 

	c.  Orders 39-346, issued by Headquarters, U.S. Army Infantry Center, Fort Benning, reassigning him in the rank of private to the U.S. Army Separation Transfer Point, effective 11 February 1983, for the purpose of separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

	d.  A duly-constituted DD Form 214 that shows he was discharged on 11 February 1983 under the provisions of chapter 10 of Army Regulation 635-200, for the good of the service - in lieu of court-martial, with a character of service of under other than honorable conditions.  This form also shows he completed 3 years, 4 months, and 23 days of creditable active service.

10.  There is no indication in his records that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitation.

11.  He provides a self-authored chronology of his service from 1978 to 1983.  He states: 

   a.  He dropped out of the 9th grade at 16 years old.  He took the GED test and passed.  He joined the Army Reserve at a young age to get into the military boot camp.  While in military boot camp and advanced individual training, he became 17 of age for active Army.  He was assigned to a Reserve unit in Georgia but never reported due to orders received to report directly to Germany in two weeks.  At that time, he became active Army.  He flew to Germany and he was stationed in Wildflecken as "special duty" (SD).  While on duty, he was in charge of picking up officers coming in late to report to Wildflecken.  While in route, he picked up a friend and co-worker, SP4 with the name Rxxx, possibly.  He was going to drop him off at the barracks.  He owed him $20.00, which he had not asked for, he told him "come on in, I have your $20.00."  No one else was on the bus.  He had one more drop off stop, before going to the motor pool to turn in the truck.  Since there was no one else to drop off, he went in the barracks with the intention to get the $20.00 he was owed and leave.

	b.  He went into perpetrator's room.  He was severely beaten and raped to the point at first his head was swollen.  All he remembers at this time after 33 years is that he was beaten with an iron pipe, sodomized and other unmentionable acts.  The perpetrator left him unconscious but he was able to get out of the room and make it back to the bus.  He drove the bus directly to his barracks.  He was in uniform, still on duty when this happened.  He reported it to the barracks guard and Headquarters and Headquarters Company rallied around him for support, including his closest friends.  He still has scars on his head from the assault.  He was taken to the base infirmary for treatment.  He was treated as a "beating" victim, not "sexual assault" at first.  The Military Police (MP) in charge stepped in and got the record corrected from assault to sexual assault with sodomy.  His head was swollen so badly, he was taken to Frankfurt to be treated for the head trauma and other injuries sustained during the assault.  He stayed hospitalized in Frankfurt for a couple of days, and then returned to Wildflecken.

	c.  There was hate after the rape.  He never imagined he should report such conduct from another Soldier because it was a taboo.  But he paid for that.  He received death threats; his room was moved closest to the barracks guard on duty, and he was scared to walk down the street.  He requested to be transferred out of Germany and was denied.  As time went on, he continued to receive threats and was in constant fear of his life.  The Post Commander finally approved a transfer to the 317th Combat Engineer unit outside of Frankfurt.   His boss, Master Sergeant Billxxxw, knew the history and treated him like scum, because he had broken the code of silence on his attacker.  No one wanted him in their battalion.  He tried his best to get approval to return state side and get away from the situation.  He was finally granted a two-week vacation so that he could leave Germany.  As soon as he got home, he immediately called Senator Sam Nunn's office requesting transfer to a new base state side.  He requested Fort Benning, because he wanted to attend jump school and in his home state.  Little did he know that mostly everyone from Wildflecken and the Combat Engineer unit ended up at Fort Benning as well.  Needless to say, the harassment started again.  Without a doubt, Captain (CPT) Pxxx did not like him.  If it wasn't for the CSM that he worked for, he would not have received my SP4/E-4 promotion or any awards or commendations that he earned.  CPT Pierce's attitude towards him was "Guilty until proven guilty" no matter what.

	d.  One day he was called into the office of CPT Pxxx.  Two men were in the office, which he found out later were from the U.S. Army Criminal Investigation Command (CID).  CPT Pxxx ordered him to remove all of his clothes, except his underwear, so the CID could search his clothes.  Nothing was found.  Then, he was asked where his car was, because they needed to search the car.  He told the CID and CPT Pxxx that his wife was out front in the car, she had just got there to pick him up to go home for the day.  One of the CID and First Sergeant went out to the car to search it.  His wife got out of the car and one person said "Oh my God, he didn't tell us she was really pregnant, about to drop a kid."  If he was under investigation for any amount of time, CID would have known his wife was 8 months pregnant.  His house was searched; but, again nothing was found.  After they searched the car and again found nothing, he was then informed that he was being arrested for "possession with the intent to sell" to an undercover cop.  He denied the charge and was arrested anyway.  He was released the next day, when the chaplain signed him out of jail.

	e.  CPT Pxxx made it his mission in life to ruin his life, by intimidating him with his wife's condition and his knowledge of the sexual assault.  CPT Pierce said to him "how would I like being in Leavenworth with my buddy?"  The Judge Advocate General (JAG) Officer, First Lieutenant (1LT)  S---en H. D--id, assigned to his case informed him that if he beat this charge, he would not beat the next one; there would be another and another.  1LT D--id spoke to him man-to-man with respect and to what he had seen in his experience in military law.  1LT D---id explained that under normal circumstances, he (the applicant) would have been sent to Leavenworth that this type of offer was unheard of and it was undocumented.  He said to take his family and run."  His wife was allowed to deliver their son.  He was expecting his unused leave of 90 days pay, had to sign out of the military "for the good of the service" but what he received was nothing close.

	f.  This is a very brief version of his story.  He had 3 years and 8 months of good conduct.  He was awarded the Good Conduct Medal for first 3 years and he did not receive recognition for honors on his DD Form 214.  For example, he was awarded a certificate of achievement on 29 July 1982 for exceptionally meritorious achievement (showed leadership qualities).  In addition, he suffered loss of disability, medical, educational, home, burial, and other benefits, loss of 90 days leave pay, not eligible for re-enlistment after 11 September 2011, and the CSM's (43rd Engineer Battalion) recommendation of Pathfinder School at re-enlistment.  When he was stationed in Eschborn, Germany, he was personally assigned to be the personal driver/assistant for the CSM of Forces Command.  After one month serving under his command, he was offered a permanent position working by his side for as long as he was in the military.  He turned the offer down, because he was in fear of his life and wanted to leave Germany.  As far as he knows, he was unaware of the assault.  He was afraid that if he found out, he would have treated him differently.  All ruined over a man claiming that he had bought marijuana from him, never knowing who his accuser was. Throughout his career, every time he was randomly selected for a drug test, he always passed.  He was tested at least once a year, if not more and when arrested.

12.  He provides: 

	a.  Standard Form 519, dated 30 May 1980.  It shows under the block titled "Permanent Clinical History, Operations, Physical Findings, and Provisional Diagnosis" the entry "Beaten" and under the block titled "Examination Requested" the entry "Skull series, Mandible." 

	b.  Standard Form 513, dated 30 May 1980.  It shows he was sodomized and beaten by a male Soldier that night.  He suffered multiple abrasions and contusions to the face and thorax.  No chest or abdominal injuries; forwarded for observation and forensic examination.  Provisional Diagnosis: Sodomy/Assault Victim.  

	c.  DA Form 3637-1, dated 31 May 1980.  It shows the cause of injury as an assault by an unknown person on 30 May in Wildflecken off-duty.  He was diagnosed with multiple contusions (not PR) and blunt trauma to abdomen ((not PR). 

	d.  Standard Form 600 that shows he was seen at the Wildflecken clinic for urinary issues and on 21 March 1981 at the Eschborn dispensary for epigastriac pain. 

13.  He also provides a self-authored document, titled "Felony Resolution Problem."  He states: 

	a.  On or about 19 December 1995, he was sentenced to four (4) years' probation for aggravated assault on two police officers.  Charges were based on two plainclothes men creeping up on him, hiding behind trees on the right side.  Not sure what to think, minding his own business fishing and drinking, wondering if he was going to be ambushed.  For his security, he went to his vehicle and unlocked the trunk of his car and he grabbed rifle and ammunition magazine.  He began to load magazine when the police car drives up.  The cop pointed his gun at him and told him to drop the weapon.  He threw the rifle back in the trunk of his car and closed it immediately.  He was then handcuffed and taken to jail for assault on two police officers.  The police were supposedly looking for man waiving a shotgun around when they snuck up on him.  He was minding his own business fishing, no firearm on him.  The police assumed he was the guy they were looking for, when in fact he wasn't.  All his camping gear, the rifle, the t-tops to his car all lost.  The arrest details were in the newspaper.

	b.  A good friend of the family, CPT B---ch, in charge of Bibb County Jail, did not believe this action was like him and advised him to get a good lawyer.  He had no money, so he was assigned a public defender, who he later found out was running for District Attorney.  His case was heard in a private hearing with "the hanging judge," Judge P---lip T---or.  The prosecuting attorney was trying to get him sentenced over 10 years in prison.  Upon review of all of the evidence, Judge T---or said "Drinking and handling a firearm is illegal, although you were out in the woods; this could have been avoided if you hadn't pulled out your rifle.
I'm giving you the benefit of the doubt that you were protecting yourself, so I'm giving you as a first offender, four years' probation; pay the County for the cost of your defense and fines, no guns, no violence."  He accepted the plea deal and completed his probation as of 19 December 1999.

	c.  In August 1998, he received permission from his probation supervisor to move to California and start a new life with his family he hadn't seen in several years.  He had a job offer the day after arriving in California.  In mid-June 1999, he received a letter from Bibb County Sheriff stating they had a warrant for his arrest for probation violation.  How can this be?  He received confirmation of his probation release from the Georgia Dept of Corrections, Macon Probation Office via letter dated 28 February 2000.  This letter also included a copy of the "Petition for Discharge of Defendant (First-Offender Act) Order of Discharge" signed by Judge W---er J----on on 21 February 2000.

14.  He also provides: 

	a.  A letter, dated 28 February 2000, from the Georgia Department of Corrections that states he was sentenced in Bibb county, Georgia on 
19 December 1995 to 4 years probation and his sentence expired on 
19 December 1999. 

	b.  A petition for discharge of first offender, dated 21 February 2000, that shows he was discharged without court adjudication of guilt; the discharge shall exonerate him of any criminal purpose; the discharge shall not affect any of his civil rights or liberties; and he shall not be considered to have a criminal conviction.

	c.  A letter, dated 14 June 1999, from the Office of the Sheriff, Bibb County, Georgia, advising him that the Bibb County Sheriff's Department was holding a warrant for his arrest, charging him with superior court violation of probation.

15.  He also provides an untitled/undated document wherein he states: 

	a.  In 1997, he obtained intense psychological treatment on his own.  With assistance from his uncle, he entered into the Midway Recovery Program in Griffin, Georgia.  He completed the full course (counseling for depression, road block DUl's, etc.) in 18 months.  His life was in ruins, skid row for real.  He had no choice, but to get help or really bad things would have happened.  He has remained sober for the past 16 years without any help from the federal government.  He drank every day in the Army starting at 17 years old.

	b.  He has been diagnosed with Hepatitis C, which is a blood transmitted disease.  The genotype he has is the worst kind to have.  For now, his body is handling the disease.  If he had not quit drinking and smoking, he would be dead from the Hepatitis C, dysautonomia, gastrointestinal issues from a foreign object being shoved up his anus, severe sleep apnea, not to mention the psychological trauma (PTSD) and concussion suffered from being beaten with a metal pipe while on duty.  He is disabled.  He receives very little social security from the government.  He used to be able to work circles around people half his age, made $50,000+ year and now he can barely make it through each day without being sick.  His family has lost a lot over his health problems (bankruptcy, loss of home, etc.).  He has been to multiple medical appointments since 2009 over his chronic Hepatitis C.

	c.  He has been through hell and paid his dues in more ways than one.  When he signed on the dotted line to join the military as a young teenager, no one told him that there would be a chance that he could be sexually assaulted and/or that it was considered an "occupational hazard."  Does that mean he is entitled to a Purple Heart?  What about benefits with pension?  He is requesting assistance to help clear his name and correct his background record.  According to the Correction Department in Georgia, he needs an Act of Congress to get this problem fixed.  He feels as though these people mean that comment in a funny way.  No one takes the initiative to right a wrong anymore.  He would like to receive the compensation he deserves.  His family deserves compensation for the mental stress and strain they've had to endure over this issue throughout the years.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	a.  Paragraph 1-14 of the regulation in effect at the time stated that when a member was to be discharged under other than honorable conditions, the convening authority would direct an immediate reduction to the lowest enlisted grade.

	b.  Paragraph 3-7a states 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  Paragraph 3-7b states 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.  

17.  Title 37, U.S. Code, section 501 states in: 

	a.  Section 501(a)(1), the term "discharge"  means in the case of an enlisted member, separation or release from active duty under honorable conditions, termination of an enlistment in conjunction with the commencement of a successive enlistment (without regard to the date of the expiration of the term of the enlistment being terminated), or appointment as an officer.  

	b.  Section 501(b), a member of the Army, Navy, Air Force, Marine Corps, Coast Guard, or National Oceanic and Atmospheric Administration, who has accrued leave to his credit at the time of his discharge, is entitled to be paid in cash or by a check on the Treasurer of the United States for such leave on the basis of the basic pay to which he was entitled on the date of discharge.

	c.  Section 501(e)(1), a member of the Army, Navy, Air Force, Marine Corps, Coast Guard, or National Oceanic and Atmospheric Administration who is discharged under other than honorable conditions forfeits all accrued leave to his credit at the time of his discharge.

18.  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."

19.  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.

20.  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)

* Irritable or aggressive behavior
* Self-destructive or reckless behavior
* Hypervigilance
* Exaggerated startle response
* Problems in concentration
* 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

21.  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.  

22.  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.

23.  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?

24.  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 requests correction of his records as follows: 

* correction of his discharge and DD Form 214 to show he received an honorable characterization of service
* reinstatement of all veterans benefits retroactive to his discharge date in February 1983
* retroactive payment of 90 days of accrued leave, denied at the time of discharge 
* reinstatement of service-connected VA benefits
* reinstatement of his rank/grade of SP4/E-4 to the date of discharge

2.  With respect to the characterization of service: 

	a.  The applicant’s record is void of the facts and circumstances that led to his voluntary discharge.  However, his record contains a DD Form 214 that shows he was discharged on 11 February 1983 under the provisions of chapter 10 of Army Regulation 635-200, in lieu of a court-martial, for what appears to be possession and distribution of marijuana. 

	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.  Based on his record of indiscipline his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.

3.  With respect to reinstatement of all veterans benefits retroactive to his discharge date in February 1983 and reinstatement of service-connected VA benefits, such requests are not within the purview of this Board.  The Board corrects military records and it does not do so to make a member eligible for certain benefits of programs.  Questions pertaining to veterans benefits and service-connected compensation should be addressed to the appropriate agency (the VA).  

4.  With respect to retroactive payment of 90 days of accrued leave, denied at the time of discharge:

	a.  The applicant failed to show he accrued 90 days of leave at the time of discharge.  Additionally, even if he had accrued 90 days of leave, the law limits the sale of accrued leave at separation or retirement to a maximum of 60 days.  There is insufficient evidence to address his leave issue because he has not provided any documentary evidence related to his leave. 

	b.  More importantly, however, is that a member of the Army who is discharged under other than honorable conditions forfeits all accrued leave to his credit at the time of his discharge.  So, even if the applicant had any accrued leave at the time, he would have forfeited such leave by virtue of receiving an under other than honorable conditions discharge. 

5.  With respect to his rank and grade:

	a.  When the separation authority approves a member's voluntary discharge under the provisions of chapter 10 of Army Regulation 635-200, in lieu of trial by court-martial, the regulation requires the separation authority to order that member's reduction to the lowest enlisted grade.  

	b.  Although the separation packet is not available and in the absence of evidence to the contrary, it is presumed the separation authority was aware of the requirements to order his reduction to the lowest enlisted grade.  There is no evidence to suggest otherwise.  This grade is correctly shown on the applicant's DD Form 214 and there is no reason to change it.

6.  The applicant also brings up the issue of PTSD: 

	a.  DOD and the Army acknowledge 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.  

	b.  The applicant's military sexual trauma is supported by the medical records he provided.  However, 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.  

	c.  In the applicant's case, his available records indicated he was pending a court-martial for possession and distribution of marijuana.  Although the amount of possession is unknown, an argument regarding the seriousness of the "possession" portion of the charge cannot be determined.  However, when it comes to distribution of marijuana, regardless of the amount, distribution is serious and premeditated, and PTSD is neither likely to have caused his premeditated offense nor was it a contributing factor.  

7.  The applicant raises additional issues in his self-authored statements: 

	a.  He asks if he is entitled to the Purple Heart.  He is not.  The criteria for the Purple Heart requires the submission of substantiating evidence to verify that the injury/wound was the result of hostile action, the injury/wound must have required medical treatment by medical personnel, and the medical treatment must have been made a matter of official record.  This is not the case here. 

	b.  He asks about benefits with pension.  He did not complete 20 years of active service and thus would not be entitled to a retirement pension.  Likewise, he was not processed through the disability system and/or placed on the Retired List by reason of disability and thus would not be entitled to a retirement pension. 

	c.  He asks for help to help clear his name and correct his background record and states that according to the Correction Department in Georgia, he needs an Act of Congress to get this problem fixed.  This issue issues is not within the purview of this Board.  As stated earlier, the Board corrects military records.  

8.  After a comprehensive review of the applicant's records and the evidence he provided, there is insufficient evidence to grant him any of the 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 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)                                         AR20140010329



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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