IN THE CASE OF:	   

		BOARD DATE:	 4 June 2015

		DOCKET NUMBER:  AR20140017240


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 his discharge characterization of service, from under honorable conditions (general) to honorable.

2.  The applicant states he was discharged after he was cited for driving under the influence (DUI).  The DUI charge was dropped, since his blood alcohol content (BAC) was .0989 and he was not over the legal limit of .10.  He was not offered treatment, counseling, or assistance to see if he had an issue with alcohol of any other issues.  He has since been diagnosed with post-traumatic stress disorder (PTSD); he is currently receiving treatment for PTSD by receiving PTSD counseling, Integrated Cognitive Behavior Therapy (ICBT), and Alcohol and Drug Treatment Program (ADTP) counseling.  He contends PTSD was a catalyst for his misconduct.

3.  The applicant provides a Stars and Stripes article, titled "As Many as 80,000 Veterans with PTSD Could Gain Discharge Upgrades."

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 11 September 1990.  He entered active duty, completed his initial entry training, and was awarded military occupational specialty (MOS) 12B (Combat Engineer).  The highest rank/grade he attained during his period of active military service was specialist (SPC)/E-4.

3.  He was arrested by an officer of the California Highway Patrol on 21 May 1993.  After failing field sobriety tests, he submitted to a breathalyzer test and his BAC was recorded on two separate occasions as .10.  Accordingly, he was charged with DUI.

4.  His immediate commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12c, by reason of misconduct – commission of a serious offense.  His immediate commander cited, as the reason for his proposed action, the applicant's arrest for DUI.  He recommended the applicant receive an under honorable conditions (general) discharge.  

5.  The applicant acknowledged receipt of the separation notification memorandum on 17 June 1993.  After consulting with counsel, he requested representation by counsel, personal appearance before and consideration of his case by a board of officers, and he elected to provide statements in his own behalf.  Neither his available record nor his discharge packet contains any associated statements in his own behalf. 

6.  His commander initiated action on 18 June 1993 to separate the applicant under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – commission of a serious offense.  

7.  In his endorsement of the separation memorandum, his battalion commander recommended the applicant be discharged under the provisions of Army Regulation 635-200, chapter 14, and he receive an under honorable (general) discharge.  He noted that the applicant was not entitled to a board hearing.  

8.  The approval authority approved the recommendation for the applicant's discharge on 23 June 1993, under the provisions of Army Regulation 635-200, paragraph 14-12c, and directed he receive an under honorable conditions (general) discharge.  He waived any rehabilitative requirements as unnecessary or not required,  he denied the applicant's request for a board hearing, and he directed that the applicant would not be transferred to the Individual Ready Reserve to complete his service obligation.

9.  The applicant was discharged accordingly on 3 August 1993, under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct – commission of a serious offense.  As of his separation date, he had completed 2 years, 10 months, and 23 days of active service.  His                     DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged under honorable conditions.

10.  His record is void of any documentation that shows he deployed to an imminent danger/hostile fire zone, or that shows he witnessed any traumatic events during his period of military service.  

11.  His record is void of any documentation that shows he suffered from, or was diagnosed with, PTSD or any other medical issue or mental condition during his period of active military service and prior to his date of separation, of such severity as to warrant his disposition through the Army Physical Disability Evaluation System (PDES).

12.  His record is void of documentation and the applicant has failed to provide documentation that shows he was diagnosed with or suffered from PTSD, or that shows he sought medical treatment for symptoms later associated with PTSD.

13.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Paragraph 1-18a provides that commanders would ensure that adequate counseling and rehabilitative measures were taken before initiating action to separate a Soldier for one of the following reasons. 

* involuntary separation due to parenthood
* personality disorder 
* entry level performance and conduct 
* unsatisfactory performance 
* minor disciplinary infractions or a pattern of misconduct (paragraphs     14-12a and 14-12b)
	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.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories included minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, commission of a serious offense, and drug abuse.  Although an honorable or general is authorized, a discharge under other than honorable conditions (UOTHC) is normally considered appropriate (emphasis added).

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-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." 

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 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. 

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 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 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 (SECDEF) 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 (emphasis added).

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 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 (emphasis added).  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 (emphasis added).  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 (emphasis added).  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 his characterization of service to show he was honorably discharged because of PTSD was carefully considered.

2.  His contention that he was diagnosed with PTSD has been noted; however, his record is void of documentation, and he failed to provide documentation that shows he was diagnosed with or suffered from PTSD, or that shows he sought medical treatment for symptoms later associated with PTSD.  

3.  Regardless, a post-service PTSD diagnosis, by itself, is not sufficient to prove an error or injustice in his separation processing as it occurred.  Additionally, the SECDEF directive he included with his application applies to cases involving veterans who received a UOTHC discharge, who request a discharge upgrade based on PTSD.  The applicant did not receive a UOTHC discharge and evidence does not show he was diagnosed with PTSD; therefore, the cited SECDEF directive does not apply in this case.

4.  He contends he was wrongly arrested for DUI since his BAC was .0989; however, the evidence of record consistently shows his BAC as .10 on all arrest and booking documents, which was, at the time, over the recognized legal limit in the State of California.  As such, his contention is rejected.

5.  Lastly, he contends he was improperly discharged because he was not offered counseling or rehabilitation prior to his discharge.  The governing Army Regulation in effect at the time did not require counseling or rehabilitation prior to separations under paragraph 14-12c, the provision under which he was discharged.  Therefore, this contention is rejected. 

6.  The evidence of record shows his administrative discharge was accomplished in accordance with applicable regulations with no violation of his rights.  Although he could have been recommended for a UOTHC discharge for misconduct, his unit commander elected to recommend a discharge characterization of general, under honorable conditions and the separation authority discharged him based on that recommendation.  The fact that he was discharged with a more favorable characterization indicates his commander took into consideration the entirety of his military service and the severity of his misconduct, to include any mental health issues he may have had at the time of discharge.  Accordingly, his discharge was appropriate under the circumstances.

7.  An honorable character of service is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel and an under honorable conditions character of service is appropriate for those Soldiers whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge.  

8.  The applicant's military service was marked by a serious incident involving misconduct.  Therefore, his overall record of service did not support the issuance of a fully honorable discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

9.  In view of the foregoing, there is no basis for granting the applicant an upgrade of his 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)                                         AR20150000002



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ABCMR Record of Proceedings (cont)                                         AR20140017240



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