IN THE CASE OF:  	  

		BOARD DATE:  11 August 2015	  

		DOCKET NUMBER:  AR20140021156 


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 discharge under other than honorable conditions (UOTHC) to general under honorable conditions.

2.  The applicant states:

	a.  As a result of being raped in 2000, she became pregnant and was left unable to tell anyone why she did not return to her unit (229th Field Service Company, Fort Polk, LA), only the results of what had happened.

	b.  For years, she has carried so much hatred towards the Army for the hurt, shame, embarrassment, and pain inside of her and now wants to tell her story on the news to let women know it is not safe to join the military.

	c.  Several people met at her home to go to an event where she recalls drinking something and waking up with no clothes on not knowing who or how many people raped her.

	d.  It is really hurtful when her son, now 13 years old, questions where his father is and she cannot give him an answer because he does not know she was raped.  It was hard to bond with her son.

	e.  She thought it was safe in the military, especially in her home, but the Army took her self-esteem, trust, life, and left her with her with headaches, stress, trust issues, intrusive thoughts, guilt, shame, and nightmares and kicked her to the curb.

	f.  She could have made the Army a career, but it has now left a scar that cannot be covered for which she is now finally receiving help from the Dallas/Fort Worth Department of Veterans Affairs (VA).

3.  The applicant provides:

* VA Medical Center Dallas Letter
* Medical Record Cover Sheet
* 74 pages of VISTA Electronic Medical Documents

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 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 in pay grade E-1 on 5 August 1998.  She was trained in and awarded military occupational specialty 92S (Shower/Laundry Specialist).

3.  The applicant's official military personnel file (OMPF) includes a DA Form 4187 (Personnel Action), dated 8 January 2001, that shows she was reported as absent without leave (AWOL) on 6 January 2001.

4.  A DA Form 616 (Report of Return of Absentee) shows the applicant was apprehended by civilian authorities in Hawthorne, CA, on 24 June 2007.  It also shows she was transferred to military control on 25 June 2007.

5.  On 30 June 2007 after consulting with counsel, the applicant admitted she was knowingly, willingly, and voluntarily AWOL.  She 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 she could be discharged UOTHC, furnished a Discharge Certificate UOTHC, and the result of the issuance of such a discharge.  She waived her rights and elected not to submit a statement in her own behalf.

6.  A DD Form 458 (Charge Sheet) initiated on 2 July 2007 shows court-martial charges were preferred against her for one specification of violating Article 86 of the Uniform Code of Military Justice by absenting herself from her unit without authority on or about 7 February 2001 through on or about 25 June 2007.

7.  On 2 July 2007, the separation authority approved the applicant's request and directed her reduction from specialist four/E-4 to private (PVT)/E-1 and issuance of a discharge UOTHC.  Headquarters, Joint Readiness Training Center and Fort Polk, Orders 190-0315, dated 9 July 2007, discharged her in the rank of PVT/E-1 effective 13 July 2007.

8.  She was discharged accordingly on 13 July 2007.  She was credited with completing 2 years, 5 months, and 19 days of active service and 6 years, 5 months, and 19 days of lost time.  Her service was characterized as UOTHC.

9.  On 5 July 2012, she petitioned the Army Discharge Review Board (ADRB) for an upgrade of her discharge, indicating she wanted to get a better job for her children.  On 7 March 2013 after having carefully reviewed the applicant's record and the issues she presented, the ADRB concluded the applicant's discharge was proper and equitable and voted to deny her request for an upgrade.

10.  The applicant provides pages 44 and 53 of her VA medical documents printed on 9 December 2014 which show she was diagnosed with chronic post-traumatic stress disorder (PTSD).  Page 61 contains the history of the applicant's present illness and shows, for the very first time in October 2014, she reported she was raped approximately 13 years ago and in need of military sexual trauma (MST) services.

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

	a.  The version of the regulation, in effect at the time, stated in Chapter 10 that a Soldier whose conduct rendered him or her triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good of the service in lieu of a trial by court-martial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood he could receive a discharge UOTHC, the adverse nature of such a discharge, and the possible consequences thereof.  The regulation required that the request be forwarded through channels to the general court-martial convening authority.  A discharge UOTHC would normally be furnished to an individual who was discharged for the good of the service.

	b.  Paragraph 3-7a provides that an honorable discharge is a separation with honor.  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 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 evidence of record confirms the applicant was AWOL from 6 January 2001 through 25 June 2007, totaling 2,361 days.  Upon her return and after consulting with counsel, she requested discharge for the good of the service in lieu of trial by court-marital.  She acknowledged she could receive a discharge UOTHC, waived her rights, and elected not to submit a statement in her own behalf.  The separation authority approved her request and directed her reduction to pay grade E-1.  She was discharged on 13 July 2007 after completing 2 years, 5 months, and 19 days of service.

2.  Notwithstanding the applicant's contentions, the evidence of record shows her administrative discharge was accomplished in compliance with applicable laws and regulations in effect at the time with no indication of procedural error which would have jeopardized her rights.  She submitted a request for a discharge in lieu of trial court-marital which could have resulted in a punitive discharge.  The characterization of her discharge was commensurate with the reason for discharge in accordance with the governing regulation in effect at the time.

3.  In this case, the applicant did not report the rape while she remained on active duty or throughout her discharge process.  She indicates she primarily remained silent because the rape resulted in the pregnancy of her now 14-year old son, to whom she could not divulge this information.  She only recently reported the sexual assault to VA personnel in October 2014 when she sought MST services 13 years after she was raped.

4.  However, at the time of the applicant's discharge, PTSD was largely unrecognized by the medical community and DOD.  Both 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 PTSD and were separated solely for misconduct subsequent to a traumatic event to include MST warrant careful consideration for the possible recharacterization of their overall service.

5.  The applicant provided medical evidence that shows she was diagnosed by the VA with PTSD related to MST which is service connected.  Therefore, it is reasonable to believe her PTSD due to MST existed at the time of her misconduct.

6.  Under current standards and regulations pertaining to sexual assault in the military, the applicant's commanders could issue an honorable or a general discharge by considering all the mitigating factors that led to a Soldier's misconduct that would warrant separation under chapter 10 of Army Regulation 635-200.  In this case, the applicant did not report the rape against her to her commander at the time of the incident and chose to be AWOL.

7.  Based on our current understanding of PTSD, it may be assumed that PTSD was a causative factor in the misconduct that led to her AWOL and resulting discharge UOTHC.  After carefully weighing that fact against the severity of the applicant's misconduct and her overall record prior to the misconduct, there is sufficient mitigating evidence to warrant upgrading the characterization of her service to a general discharge under honorable conditions and to restoring her rank and grade to SPC/E-4, the rank she held at the time her request for discharge was approved.

8.  Her 2,361 days of lost time clearly diminished the quality of her service below that meriting a fully honorable discharge.  Therefore, weighing the same aforementioned factors and the applicant's misconduct, her overall record of service does not rise to a fully honorable character of service.

BOARD VOTE:

____X___  ____X___  ____X___ GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  amending her separation orders to show her rank/pay grade as SPC/E-4 and her character of service as "General under Honorable Conditions" and

	b.  voiding her current DD Form 214 and issuing her a new DD Form 214 showing her character of service as " General under Honorable Conditions " and her rank/grade as SPC/E-4 with an effective date of rank of 13 July 2007.



      ___________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)                                         AR20140021156





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ABCMR Record of Proceedings (cont)                                         AR20140021156



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