BOARD DATE:	  8 September 2015

		DOCKET NUMBER:  AR20140021454 


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

2.  The applicant states:

* his command requested a general discharge
* he was discharged UOTHC
* Department of Veterans Affairs (VA) documentation states he was not sane during his second period of service

3.  The applicant provides:

* Army Discharge Review Board (ADRB) proceedings
* VA documentation 

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 14 July 2004 and trained as an infantryman.  He served in Iraq from 5 December 2005 to 27 November 2006.  He was honorably discharged on 12 July 2006 for immediate reenlistment.  He reenlisted on 13 July 2006 for a period of 6 years.  He was promoted to sergeant effective 1 December 2007.

3.  On 13 May 2008, nonjudicial punishment (NJP) was imposed against him for wrongfully storing and transporting a privately-owned weapon in his vehicle, wrongfully storing a privately-owned weapon in off post quarters, and signing an official statement with intent to deceive.

4.  He served in Afghanistan from 23 July 2009 to 21 July 2010.

5.  On 13 January 2012, NJP was imposed against him for failing to report to his appointed place of duty (four specifications).

6.  On 14 March 2012, charges were preferred against him for:

* failing to go at the time prescribed to his appointed place of duty (13 specifications)
* being absent without leave (AWOL) from 4 February 2012 to 15 February 2012 and from 15 February 2012 to 14 March 2012
* wrongfully using marijuana (three specifications)

7.  On 26 March 2012, he consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10.  He requested a general under honorable conditions discharge be held in abeyance until completion of his medical evaluation board (MEB).  He acknowledged that he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person.  He also acknowledged that by submitting his request for discharge he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he might expect to encounter substantial prejudice in civilian life if he were issued a general discharge and that he still might receive a service characterization of UOTHC by the commanding general.  He elected to submit a statement in his own behalf.  In summary, he stated:

* he fought in Iraq and Afghanistan
* he was awarded the Bronze Star Medal with "V" Device
* in August 2009, he was involved in an explosion and since that time he has had constant problems controlling his anger, depression, anxiety and concentration
* in January 2010, he was involved in another traumatic experience
* his friend was killed by an improvised explosive device
* during the mission and after the smoke cleared he discovered his team killed a man and his young son
* at this point his life would forever alter its course
* upon returning stateside, he began having numerous problems with flashbacks and nightmares
* in September 2010, he began seeking help (counseling and medications)
* he has been hospitalized twice in psychiatric wards
* his symptoms continue to worsen and his counselors tell him this is to be expected
* he is faced with the harsh reality that he can no longer soldier
* he has made mistakes

8.  On 5 April 2012, the separation authority approved the applicant's voluntary request for discharge and directed the issuance of a UOTHC Discharge Certificate and that the separation not be held in abeyance.

9.  On 2 May 2012, he 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.  He completed 7 years, 8 months, and 9 days of creditable active service with 42 days of lost time.  His service was characterized as UOTHC.

10.  On 11 January 2013, the Army Discharge Review Board denied his request for a discharge upgrade.

11.  He provided a VA Rating Decision, dated 29 May 2013, which states:

	a.  His first period of service is honorable for VA purposes.

	b.  He was not sane during his second period of service.  This determination is based on the severity of his post-traumatic stress disorder (PTSD) symptoms, which were diagnosed while he was still serving on active duty.  According to the recent addendum to the VA examination for PTSD, he was first diagnosed after returning from his deployment to Iraq in 2006.  The diagnosis was made after he attempted suicide.

12.  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.

	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.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-3, states an enlisted Soldier may not be referred for or continue physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of UOTHC.  If the case comes within the limitations above, the commander exercising general court-martial jurisdiction over the Soldier may abate the administrative separation.

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 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."

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 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.

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 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.

18.  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.

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 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.

21.  Title 38, Code of Federal Regulations, section 3.12, states a discharge or release from service under one of the conditions specified in this section is a bar to the payments of benefits unless it is found that the person was insane at the time of committing the offense causing such discharge or release.

22.  Title 38, Code of Federal Regulations, section 3.354, provides that an insane person is one who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more or less prolonged deviation from his normal method of behavior; or who interferes with the peace of society; or who has so departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he resides.  When a rating agency is concerned with determining whether a veteran was insane at the time he committed an offense leading to his court-martial, discharge, or resignation, it will base its decision on all the evidence procurable relating to the period involved and apply this definition of insanity.

DISCUSSION AND CONCLUSIONS:

1.  Although it appears the applicant was undergoing an MEB prior to his voluntary request for discharge, the governing regulation states an enlisted Soldier may not continue physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of UOTHC.

2.  Although the VA documentation provided by the applicant states he was not sane during his second enlistment, there is insufficient evidence to show the applicant was declared legally insane at any time during or subsequent to his military service.

3.  Insanity is a legal (nonmedical) term for mental illness of such a severe nature that a person cannot distinguish fantasy from reality, cannot conduct his/her affairs due to psychosis, or is subject to uncontrollable impulsive behavior.

4.  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 in conformance with applicable regulations.

5.  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.

6.  The applicant provided VA documentation which states he was first diagnosed with PTSD in 2006 after returning from his deployment in Iraq and after he attempted suicide.

7.  It is therefore reasonable to conclude the PTSD symptoms were a causative factor in the misconduct that led to his 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 his service to general under honorable conditions and restoring his rank to SGT/pay grade E-5.

BOARD VOTE:

___x_____  __x______  ___x__  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined 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 re-issuing his DD Form 214 to show the character of his service as "General Under Honorable Conditions" and to show he held the rank/pay grade of SGT/E-5 at the time of his separation with a date of rank of 2 May 2012.



      __________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)                                         AR20140021454



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ABCMR Record of Proceedings (cont)                                         AR20140021454



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