IN THE CASE OF:	  

		BOARD DATE:	  31 March 2015

		DOCKET NUMBER:  AR20140013380 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of her under other than honorable conditions discharge to a general discharge. 

2.  The applicant states:

	a.  She is mentally ill and she was abused by her former military husband.  She was coerced and influenced by him.

	b.  She was a good Soldier who earned medals and awards before she was married in December 1985.

	c.  She was discharged due to behavior not in accordance with her integrity and honor.  

	d.  She was sexually harassed by her first sergeant, which resulted in her present post-traumatic stress disorder (PTSD).  Since she was released from the military, she has been in numerous hospitals.  She is currently receiving treatment at the Department of Veterans Affairs (VA) Medical Center.  She was diagnosed with bipolar disorder, PTSD, and severe depression.  She can no longer work and she needs her discharge upgraded.  

	e.  She was abused emotionally, mentally, and sexually during her military service.  She was encouraged to accept a discharge under other than honorable conditions and she really and truly needs her discharge upgraded.  

	f.  Her doctors stated that she is unemployable and her medical records at the VA medical center support her claims.  

	g.  She was given an honorable discharge for her previous period of service, which is why she is able to receive treatment.  She needs her second period of service upgraded in order to receive VA benefits.  

	h.  She earned two awards of the Army Good Conduct Medal.  The second award was granted well into her second period of service.  Therefore, the character of service she received was for actions immediately before she was discharged.

3.  The applicant provides a DD Form 4/1 (Enlistment/Reenlistment Document – Armed Forces of the United States), DA Form 1695 (Oath of Extension of Enlistment), and DA Form 2-1 (Personnel Qualification Record-Part II).    

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 1 December 1982.  On 
15 August 1985, she reenlisted for a period of 4 years.  

3.  On 18 March 1987, she received nonjudicial punishment (NJP) for wrongful possession of cocaine on 3 occasions.  

4.  On 6 October 1988, she extended her enlistment for a period of 13 months.  

5.  On 28 December 1989, she received NJP for being absent without leave (AWOL) from on or about 5 to 14 December 1989.



6.  On 20 February 1990, court-martial charges were preferred against the applicant for:

* violating Article 121 of the Uniform Code of Military Justice (UCMJ); specifically, stealing U.S. currency of a value of about $260.00, the property of the Army and Air Force Exchange Services
* violating Article 95 of the UCMJ; specifically, resisting apprehension by an armed force policeman
* violating Article 128 of the UCMJ; specifically, assaulting a military policeman 

7.  On 20 February 1990, she consulted with legal counsel and voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial due to charges preferred against her under the UCMJ that authorized the imposition of a bad conduct or dishonorable discharge.

8.  She acknowledged in her request that she understood the elements of the offenses charged and that she was guilty of at least one of the charges against her or of lesser included offenses which also authorized the imposition of a bad conduct or dishonorable discharged.  She was advised of:

* the nature of her rights under the UCMJ
* the elements of the offenses with which she was charged
* any relevant lesser included offense and the facts which must be established by competent evidence beyond reasonable doubt to sustain a finding of guilty
* the possible defenses which appear to be available
* the maximum permissible punishment if found guilty

9.  She acknowledged she could be issued an under other than honorable conditions discharge and that she could be ineligible for many or all benefits administered by the VA, that she could be deprived of many or all Army benefits, and that she could be ineligible for many or all benefits as a veteran under both Federal and State laws.  She further acknowledged she could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge.  




10.  On 26 February 1990, the separation authority approved her request for discharge and directed reduction to the lowest enlisted grade and separation with an under other than honorable conditions discharge.  On 9 March 1990, she was discharged accordingly.  Her DD Form 214 shows the Army Good Conduct Medal (2nd Award) among other awards.  

11.  There is no evidence in the available records that indicates she was a victim of sexual harassment or mental or physical abuse or that PTSD was the proximate cause of her acts of misconduct.

12.  The Army Discharge Review Board denied her request for an upgrade of her discharge on 25 March 2005.

13.  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 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.

	b.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

14.  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." 

15.  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.

16.  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. 

17.  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.  

18.  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 under other than honorable conditions 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.

19.  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?

20.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of her under other than honorable conditions discharge to a general discharge was carefully considered.

2.  The available evidence shows she was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  The record shows that after consulting with legal counsel, she voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  By requesting discharge, she admitted she was guilty of the charges.

3.  Her voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable laws and regulations. There is no indication the request was made under coercion or duress.

4.  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. 

4.  In this case, the available records do not show that the applicant suffered from symptoms of PTSD during her military service, nor do the available records show that she received a diagnosis of PTSD from a competent medical authority subsequent to her discharge.  While it is possible that she may have incurred PTSD as a result of the sexual harassment she describes, in the absence of a diagnosis from a competent medical authority, her claim on its own is not a sufficient basis for considering PTSD as a mitigating factor in this case.  

4.  Her contentions, as well as her overall record service, to include her previous period of honorable service, were considered; however, her record of indiscipline during her second enlistment includes NJP for possession of cocaine and being AWOL and court-martial charges for stealing, resisting apprehension, and assaulting a military policeman. 

5.  Based on her record of indiscipline and in view of the fact that she voluntarily requested to be discharged in order to avoid a trial by court-martial that could have resulted in a punitive discharge, her overall record of service did not support the issuance of an honorable or general discharge by the separation authority at the time and it does not support an upgrade of her discharge now.

6.  The applicant has failed to show that her separation processing and/or the character of service she received were in error or unjust.  Therefore, there is an insufficient evidentiary basis for granting her request for an honorable or general discharge.

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)                                         AR20140013380



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ABCMR Record of Proceedings (cont)                                         AR20140013380



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