BOARD DATE:	  2 June 2015

		DOCKET NUMBER:  AR20140016226 


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 his general discharge (GD) be upgraded to an honorable discharge (HD) and that his narrative reason for separation be changed from unsatisfactory performance to satisfactory performance.

2.  The applicant states he performed his duties at the highest level even through the most difficult time in his life while struggling with the threat that he was not leaving until being killed.  He was wrongfully charged with a drug offense that was later dropped.  He was supposed to be relocated and he was constantly terrorized.  He has suffered with post-traumatic stress disorder (PTSD) from the brutality he endured for years of living life or death situations.  He was terrorized and humiliated in front of the entire brigade.  His platoon sergeant made many attempts to put his life in danger, once pulling a weapon on him.  He saw no way out except to try to take his own life.  He has been in prison and used alcohol and drugs to cope with the trauma he suffered in the military.

3.  The applicant provides a copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), a letter from his wife, and a Department of Veterans Affairs award letter.

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 29 January 1982, completed training, and was awarded the military occupational specialty 91B (Medical Specialist).  Upon completion of training the applicant was assigned to duty at Fort Stewart, Georgia.  He attained the rank of specialist (E-4).

3.  The record contains adverse general counseling statements as follows – 

* 9 May 1982 – for missing morning formation
* 14 March 1983 – for missing morning formation
* 1 July 1983 – for disobeying a lawful order and failure to appear in proper military appearance
* 6 July 1983 – for less than adequate duty performance requiring constant supervision and poor personal appearance
* 25 July 1983 – for being late to morning formation
* 26 July 1983 – for failure to obey a lawful order
* 26 July 1983 – missing morning formation
* 23 May 1984 – for failure to follow instructions and failure to go to place of duty
* 23 May 1984 – for failure to use the chain of command 

4.  The applicant tested positive for Tetrahydrocannabinol (THC) on a routine unit urinalysis administered on 16 May 1984. 

5.  On 22 June 1984, his command initiated separation proceedings for unsatisfactory performance.  The reasons for the action were stated as his poor conduct, unstable character, and lack of respect for authority. 

6.  On 28 June 1984, the Division Psychiatrist provided a statement in concert with the separation action.  He stated the applicant had attempted suicide on 14 June 1984 and had been evaluated extensively over the past few weeks.  He diagnosed the applicant as suffering from an adjustment disorder with depression, psychological factors affecting his physical condition, and mixed type headaches.  The applicant met retention standards and was cleared to participate in any administrative action deemed appropriate.

7.  On 5 July 1984, after consulting with military counsel, the applicant acknowledged the separation action and submitted a statement on his own behalf.  He stated that after being acquitted of court-martial charges he was supposed to have been transferred to another unit but was not.  He had not received the required counseling statements about his deficiencies or afforded a reasonable opportunity to overcome deficiencies.  He recognized that there had been problems with his performance but that they were the result of physical and psychological causes exacerbated by the failure to receive a rehabilitative transfer. 

8.  His unit commander noted the lack of rehabilitative transfer following the court-martial but pointed out that everyone in his chain of command had changed since the court-martial and his platoon sergeant had changed three times.  This gave him the chance to prove himself but he had failed to do so.  The commander noted that part of the reason that there were limited record of counseling was that with his open door policy he felt that formally recording the sessions defeated the purpose of an open door policy.  But, he had addressed the consequences of the applicant's actions during the open door sessions.  While there were several administrative errors or omissions, he did not think the applicant had been treated unfairly.  

9.  The discharge authority approved the discharge recommendation and directed the applicant receive a GD.  

10.  The applicant was discharged for unsatisfactory performance with a GD on 26 July 1984.  He had 2 years, 5 months, and 28 days of creditable service with no lost time. 

11.  The VA award letter shows the applicant is in receipt of disability benefits at a 50 percent disability level as of 2006 for a psychiatric disorder, characterized as dysthymia, depression, and an anxiety disorder.

12.  The applicant's wife states the applicant has been diagnosed with PTSD and clinical depression and she relates how his condition has affected both the applicant and herself. 

13.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.  It provides the following: 

	a.  Paragraph 3-7a states that an HD is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.  
	b.  Paragraph 3-7b states that a GD is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge. 

   c.  Chapter 13, in effect at the time, provides for separation due to unsatisfactory performance when in the commander’s judgment the individual will not become a satisfactory Soldier; retention will have an adverse impact on military discipline, good order and morale; the service member will be a disruptive influence in the future; the basis for separation will continue or recur; and/or the ability of the service member to perform effectively in the future, including potential for advancement or leadership, is unlikely.  Service of Soldiers separated because of unsatisfactory performance under this regulation will be characterized as honorable or under honorable conditions.

14.  PTSD, an anxiety disorder, was not recognized as a psychiatric disorder until 1980 with the publishing of the Diagnostic and Statistical Manual of Mental Disorders (DSM) III.  While PTSD has only been categorized by psychiatrists as a distinct diagnosis since 1980, it has, as early as the Civil War, been described in psychological literature, variously labeled as shell shock, Soldier's heart, effect syndrome, combat fatigue and traumatic neurosis.  Although the current label of PTSD is of rather recent acceptance, the idea that catastrophes and tragedies can result in persistent emotional and psychological symptoms is common even among the lay public.  Army Regulation 40-501 does not specifically categorize PTSD; however, it does address anxiety or neurotic disorders, which include PTSD, and provides that such disorders are unfitting only if persistence or recurrence of symptoms is sufficient to require extended or recurrent hospitalization, creates a necessity for limitations of duty or duty in a protected environment or resulting in interference with effective performance of military duty.

15.  PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster.  The Diagnostic and Statistical Manual of Mental Disorders (DSM) is published by the American Psychiatric Association (APA) and it provides standard criteria and common language for the classification of mental disorders.  In 1980, the APA added PTSD to the third edition of its DSM-Ill nosologic classification scheme.  Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice.  From an historical perspective, the significant change ushered in by the PTSD concept was the stipulation that the etiological agent was outside the individual (i.e., a traumatic event) rather than an inherent individual weakness (i.e., a traumatic neurosis).  The key to understanding the scientific basis and clinical expression of PTSD is the concept of "trauma."  

16.  PTSD is unique among psychiatric diagnoses because of the great importance placed upon the etiological agent, the traumatic stressor.  In fact, one cannot make a PTSD diagnosis unless the patient has actually met the "stressor criterion," which means that he or she has been exposed to an event that is considered traumatic.  Clinical experience with the PTSD diagnosis has shown, however, that there are individual differences regarding the capacity to cope with catastrophic stress.  Therefore, while most people exposed to traumatic events do not develop PTSD, others go on to develop the full-blown syndrome.  Such observations have prompted the recognition that trauma, like pain, is not an external phenomenon that can be completely objectified.  Like pain, the traumatic experience is filtered through cognitive and emotional processes before it can be appraised as an extreme threat. Because of individual differences in this appraisal process, different people appear to have different trauma thresholds, some more protected from and some more vulnerable to developing clinical symptoms after exposure to extremely stressful situations.

17.  The DSM fifth revision (DSM-5) was released in May 2013.  This revision includes changes to the diagnostic criteria for PTSD and Acute Stress Disorder.  The PTSD diagnostic criteria were revised to take into account things that have been learned from scientific research and clinical experience.  The revised diagnostic criteria for PTSD include a history of exposure to a traumatic event that meets specific stipulations and symptoms from each of four symptom clusters: intrusion, avoidance, negative alterations in cognitions and mood, and alterations in arousal and reactivity.  The sixth criterion concerns duration of symptoms; the seventh assesses functioning; and the eighth criterion clarifies symptoms as not attributable to a substance or co-occurring medical condition.
   
   a.  Criterion A, stressor:  The person was exposed to: death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence, as follows: (one required)
    
   (1) Direct exposure.
    
   (2) Witnessing, in person.
    
   (3) Indirectly, by learning that a close relative or close friend was exposed 
to trauma.  If the event involved actual or threatened death, it must have been violent or accidental.
    
   (4) Repeated or extreme indirect exposure to aversive details of the 
event(s), usually in the course of professional duties (e.g., first responders, collecting body parts; professionals repeatedly exposed to details of child abuse).  This does not include indirect non-professional exposure through electronic media, television, movies, or pictures.
   b.  Criterion B, intrusion symptoms: The traumatic event is persistently reexperienced 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.

18.  As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis and treatment of PTSD the Department of Defense (DoD) acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had an undiagnosed condition of PTSD at the time of their discharge.  It is also acknowledged that in some cases this undiagnosed condition of PTSD may have been a mitigating factor in the Soldier's misconduct which served as a catalyst for their discharge.  Research has also shown that misconduct stemming from PTSD is typically based upon a spur of the moment decision resulting from temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues for an extended period of time.

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

20.  BCM/NRs are not courts, nor are they investigative agencies. Therefore, the determinations will be based upon a thorough review of the available military records and the evidence provided by each applicant on a case-by-case basis.  When determining if PTSD was the causative factor for an applicant's misconduct and whether an upgrade is warranted, the following factors must be carefully considered:

* Is it reasonable to determine that PTSD or PTSD-related conditions existed at the time of discharge?
* Does the applicant's record contain documentation of the occurrence of a traumatic event during the period of service?
* Does the applicant's military record contain documentation of a diagnosis of PTSD or PTSD-related symptoms?
* Did the applicant provide documentation of a diagnosis of PTSD or PTSD-related symptoms rendered by a competent mental health professional representing a civilian healthcare provider?
* Was the applicant's condition determined to have existed prior to military service?
* Was the applicant's condition determined to be incurred during or aggravated by military service?
* Do mitigating factors exist in the applicant's case?
* Did the applicant have a history of misconduct prior to the occurrence of the traumatic event?
* Was the applicant's misconduct premeditated?
* How serious was the misconduct?

21.  Although the DoD acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had an undiagnosed condition of PTSD at the time of their discharge, it is presumed that they were properly discharged based upon the evidence that was available at the time.  Conditions documented in the record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge.  In cases in which PTSD or PTSD-related conditions may be reasonably determined to have existed at the time of discharge; those conditions will be considered potential mitigating factors in the misconduct that caused the UOTHC characterization of service.  Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of UOTHC.  Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct.  PTSD is not a likely cause of premeditated misconduct.  Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

2.  The applicant has not provided and the record contains no evidence that the applicant has been diagnosed as suffering from PTSD.  The available evidence shows his psychological diagnoses are dysthymia, depression, and an anxiety disorder.

3.  The applicant has not provided and the record contains no evidence that the failure to receive a rehabilitative transfer would have resulted in an improvement of his attitude and performance.  He has a long history of failure to comply with orders and failure to report for formations under a number of supervisors and over an extended period of time.  In addition to the minor misconduct, he also tested positive for illegal drug use shortly prior to discharge.

4.  The applicant has submitted neither probative evidence nor a convincing argument in support his contention performed his duties at the "highest level," he was constantly terrorized and humiliated, or that his life was ever put in danger or that he endured any "brutality" by living years in life or death situations.

5.  The applicant's service did not meet the standards of acceptable conduct and performance of duty warranting an honorable discharge and the narrative reason for his separation is appropriate.  

6.  Based on the above facts and findings there is insufficient evidence to warrant granting any 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)                                         AR20140016226



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ABCMR Record of Proceedings (cont)                                         AR20140016226



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