BOARD DATE:	  17 March 2015

		DOCKET NUMBER:  AR20140012141 


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 defers to counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests an upgrade of the applicant's discharge under other than honorable conditions (UOTHC) to honorable.

2.  Counsel states:

	a.  The applicant was injured during basic training when she slipped on the concrete slab covered with an icy sheet that was outside the barracks.  She originally continued to train despite the pain.  One day while struggling with push-ups her drill instructor kicked her where she was previously injured causing her great pain.  She could not continue to train and reported to sick call.  Although she did not tell any medical personnel about being kicked, she did report the kicking incident to the military police.

	b.  It was determined she had a right pelvic stress fracture and she was sent on convalescent leave from 5 February 2005 to 6 March 2005.  After returning she was still not healed so she was placed in a special unit (Physical Therapy Rehabilitation Program (PTRP)).  Usually Soldiers return to a different unit, but for some reason when she completed PTRP she was called back to her unit.  When she returned to her unit she received ridicule from the drill sergeants and first sergeant.

	c.  One evening after coming back from the mess hall her drill sergeant called her into his office.  He cornered her and told her to undress and she did.  He raped her.  She kept hoping someone would come in, but no one did.  Afterward the drill sergeant told her to get dressed and take a shower so she did.  He also told her she better not report this or he would have to take care of her permanently and he cracked his knuckles.  She was too afraid to file a report.  She was also ashamed and embarrassed.

	d.  The applicant, like many young female Soldiers, did not report the rape by her drill sergeant.  She was absent without leave (AWOL) shortly after the rape.  She was AWOL from 10 July 2005 until she surrendered on 23 October 2006.  She submitted a request for discharge in lieu of trial by court-martial.  She did not disclose that she had been raped by her drill instructor.

	e.  She has suffered numerous mental health problems, to include PTSD, because of the rape and her failure to cope with the rape and seek timely mental health treatment.

	f.  Her ex-husband and mother provided sworn statements attesting that the applicant was raped while serving on active duty.

	g.  The applicant's diagnosis of PTSD corroborates that she was raped while serving on active duty.  Her physician has been treating her since 2007.  Her current diagnoses are PTSD, bipolar disorder, and general anxiety disorder.

	h.  The applicant's mental health counselor corroborates she was raped while serving on active duty.

3.  Counsel provides 11 enclosures outlined on the last page of counsel's brief.

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 28 December 2004 for 4 years.  She was promoted to private two (PV2)/pay grade E-2 effective 28 June 2005, which was the highest grade she held.

3.  She provided medical documentation which shows she fell on ice and sustained a right pelvic stress fracture in January/February 2005.

4.  She was AWOL on 10 July 2005 and returned to military control on 23 October 2006.  Charges were preferred against her for the AWOL period on 26 October 2006.

5.  On 26 October 2006, she consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  She acknowledged that by submitting her request for discharge she was guilty of a charge against her that authorized the imposition of a bad conduct or dishonorable discharge.  She indicated she understood she might be discharged under conditions other than honorable and given a UOTHC discharge, she might be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), she might be deprived of many or all Army benefits, and she might be ineligible for many or all benefits as a veteran under both Federal and State laws.  She acknowledged she might expect to encounter substantial prejudice in civilian life because of a UOTHC discharge.  She elected not to make a statement in her own behalf.

6.  On 7 November 2006, the separation authority approved the applicant's voluntary request for discharge and directed the issuance of a UOTHC discharge with reduction to private (PVT)/pay grade E-1.

7.  On 29 November 2006, she was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  She completed 7 months and 19 days of creditable active service with 469 days of lost time.  Her service was characterized as UOTHC.

8.  Counsel provided a VA Form 21-0960P-3 (Review PTSD Disability Benefits Questionnaire), dated 9 July 2013, from a physician who has been treating the applicant since 2007.  This form shows the applicant was diagnosed with PTSD, bipolar disorder, and general anxiety disorder.

9.  In May 2014, the Army Discharge Review Board denied her request for a discharge upgrade.

10.  Counsel provided a letter from a licensed clinical social worker, dated 22 May 2014, which states:

	a.  In her professional opinion, the applicant's symptoms of PTSD are a direct result of the trauma she suffered in the military.  

	b.  The applicant is diagnosed with PTSD with panic attacks resulting from her experiences in the military.

	c.  She has been working with the applicant in weekly mental health therapy sessions since September 2013.
 
11.  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.  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 UOTHC is normally considered appropriate.  A discharge UOTHC requires reduction to the lowest enlisted grade.

	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 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.

12.  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 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 nosologic classification scheme.  Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice.  From a historical perspective, the significant change ushered in by the PTSD concept was the stipulation that the etiological agent was outside the individual (i.e., a traumatic event) rather than an inherent individual weakness (i.e., a traumatic neurosis).  The key to understanding the scientific basis and clinical expression of PTSD is the concept of "trauma."

13.  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.

14.  The fifth edition of the DSM was released in May 2013.  This revision includes changes to the diagnostic criteria for PTSD and acute stress disorder.  The PTSD diagnostic criteria were revised to take into account things that have been learned from scientific research and clinical experience.  The revised diagnostic criteria for PTSD include a history of exposure to a traumatic event that meets specific stipulations and symptoms from each of four symptom clusters:  intrusion, avoidance, negative alterations in cognitions and mood, and alterations in arousal and reactivity.  The sixth criterion concerns duration of symptoms, the seventh criterion assesses functioning, and the eighth criterion clarifies symptoms as not attributable to a substance or co-occurring medical condition.

	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; or

		(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; or

		(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 or

		(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); and

		(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; and

		(6)  sleep disturbance.

	f.  Criterion F – Duration:  Persistence of symptoms (in Criteria B, C, D, and E) for more than 1 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.

15.  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 UOTHC 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 Soldiers' misconduct which served as a catalyst for their discharge.  Research has also shown that misconduct stemming from PTSD is typically based upon a spur of the moment decision resulting from a temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues for an extended period of time.

16.  On 3 September 2014 in view of the foregoing information, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged 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 applicants' service.

17.  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?

18.  Although DOD acknowledges that some Soldiers who were administratively discharged UOTHC 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 records 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.  BCM/NRs 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.  BCM/NRs 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and conformed with applicable regulations.  

2.  Counsel contends the applicant has suffered from PTSD since her rape while serving on active duty and he provided a letter from a clinical social worker who states the applicant has been diagnosed with PTSD and her PTSD symptoms are a direct result of the trauma she suffered in the military.

3.  The applicant's records are void of any serious previous misconduct during this period of service and the misconduct of being AWOL appears to have been an isolated event that was the result of an uncharacteristic lapse in judgment.

4.  It should be concluded that the traumatic event that resulted in the clinical diagnosis of PTSD was the causative factor in the misconduct that led to her discharge.  After carefully weighing that fact against the severity of the applicant's misconduct, there is sufficient mitigating evidence to warrant upgrading the character of the applicant's service to general under honorable conditions and restoring her to PV2/pay grade E-2.  However, in weighing those same factors, the applicant's overall service did not rise to a fully honorable character of service.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X______  _X_______  __X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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 re-issuing her DD Form 214 to show the character of her service as "General Under Honorable Conditions" and to show she held the rank/pay grade of PV2/E-2 with a date of rank of 28 June 2005. 

2.  The Board further determined 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 upgrading her discharge to fully honorable.



      ___________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)                                         AR20140012141



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ABCMR Record of Proceedings (cont)                                         AR20140012141



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