IN THE CASE OF:	  

		BOARD DATE:	    27 October 2015

		DOCKET NUMBER:  AR20150002983 


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 reconsideration of his previous request for an upgrade of his under other than honorable conditions (UOTHC) discharge to a general discharge.  In addition, he now requests his discharge be upgraded to a general or honorable discharge and the narrative reason for his discharge be changed.

2.  The applicant states, in effect, he is providing a new argument and new evidence that were not previously considered. 

3.  The applicant provides his DD Form 214; a medical letter; three character reference statements, dated between 10 December 2014 and 8 January 2015; and Army Board for Correction of Military Records (ABCMR) AR20130004981 Record of Proceedings.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130004981 on 14 November 2013.

2.  As a new argument the applicant states:

	a.  He understands that he was not a perfect Soldier for the last few months of his time in the service.  At the time, he was unaware that he was suffering from post-traumatic stress disorder (PTSD) which his actions were a clear example of.  After 2 consecutive years, 1 year in Korea and the other in Iraq, his character and actions changed dramatically.  He went from receiving the Army Good Conduct Medal and other awards, to making all the poor choices he made.  He is providing his physician's statement diagnosing him with PTSD.  

	b.  He feels he should be able to go to his grave being called a veteran as well as being able to receive the help that is greatly needed.  It is obvious that PTSD was affecting him a great deal in 2006, right after he returned from Iraq.  The bad choices he made at that time were nowhere near his normal actions.  He believes that when considering all these factors his discharge should be upgraded to a general discharge under honorable conditions or an honorable discharge.

3.  As new evidence the applicant provides a letter dated 10 December 2014, wherein Doctor MA, Medical Director, Epilepsy Outreach Program, Parkland Health & Hospital System, Dallas, TX, stated, in part:

	a.  [The applicant] had been followed by the Epilepsy Outreach clinic since 16 December 2013.  During this time, he completed an extended Epilepsy Monitoring Unit stay that confirmed a diagnosis of localization-related (focal) (partial) epilepsy and epileptic syndromes with partial seizures, with intractable epilepsy.  Completed neuropsychological testing further revealed that [the applicant] has clinically significant verbal and nonverbal memory loss, major depression, and endorsement of PTSD symptoms (emphasis added).  

	b.  In spite of the above psychosocial, mental, and physical challenges, he has demonstrated a strong determination to improve his health, emotional wellbeing, and overall life circumstances.  He has cooperated with recommended treatment for both his epilepsy and mental health, and is presently receiving counseling and medication management through a community mental health provider.

4.  The applicant's records show he enlisted in the Regular Army on 19 March 2003.  On 28 August 2003 he was assigned to the 1st Battalion, 9th Infantry Regiment, Korea.  He served in Kuwait/Iraq with his assigned unit from 8 August 2004 to 31 July 2005.  He was promoted to the rank of specialist (SPC) on 1 March 2005.  

5.  On 20 October 2005 he was assigned to Company D, Brigade Support Battalion, Fort Carson, CO.

6.  Permanent Orders (PO) 333-044, dated 29 November 2005, issued by Headquarters, 7th Infantry Division and Fort Carson, awarded him the Combat Action Badge for actively engaging or being engaged by the enemy during the period 8 August 2004 to 31 July 2005.

7.  On 9 December 2005, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully using marijuana.  Part of the punishment imposed was reduction to private (PV1)/E-1.

8.  He was reported in an absent without leave (AWOL) status from his assigned unit from 27 to 30 January 2006, 8 to 21 February 2006, and 3 to 29 March 2006.

9.  PO 082-345, dated 23 March 2006, issued by the Rear Detachment, 502nd Personnel Services Battalion, Fort Carson, awarded him the Army Good Conduct Medal (1st Award) for the period 23 March 2003 to 22 March 2006.

10.  On 29 March 2006, he received NJP under the provisions of Article 15, UCMJ for failing to go to his appointed place of duty on three occasions, wrongfully using marijuana, and failing to go to scheduled appointments on two occasions. 

11.  He was reported in an AWOL status from his assigned unit from 11 April to 5 May 2006. 

12.  On 5 May 2006 his command preferred court-martial charges against him for four specifications of being AWOL from 27 to 30 January, 8 to 21 February, 3 to 29 March, and 11 April to 5 May 2006. 

13.  On 17 May 2006 the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10, for the good of the service in lieu of trial by court-martial.

14.  In a statement submitted with his request for discharge, he indicated that he was sorry for being a burden to everyone.  His wife, who was diagnosed with cancer of the uterus, had a miscarriage.  As a result of this traumatic experience, her cancer began spreading further.  She had been struggling daily and many days she was unable to get out of bed.  He tried to focus on the Army and his family and as a result both had suffered.  He had been going through a lot of personal issues and instead of relying on his chain of command for support, he ignored their efforts and went out on his own.  He mistakenly failed to utilize and trust his chain of command. 

15.  On 17 May 2006, the separation authority approved the applicant's request for discharge with the issuance of a UOTHC discharge.  On 1 June 2006, he was discharged accordingly.  

16.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10 with an UOTHC characterization of service.  He completed 3 years and 3 days of creditable active duty service and had 71 days (or 2 months and 11 days) of lost time due to being AWOL.  Item 28 (Narrative Reason for Separation) shows he was discharged "in lieu of trial by court-martial."

17.  On 4 April 2012, the Army Discharge Review Board denied his request for an upgrade of his discharge and determined it was both proper and equitable.  

18.  With his previous case, he provided two post-service Department of Veterans Affairs (VA) forms as well as post-service hospital discharge instructions.  It appeared according to the Disabled American Veterans that at some point in 2012 the applicant was diagnosed with PTSD, seizure conditions, migraine headaches, lower back problems, and sciatic nerve damage. 

19.  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 UOTHC discharge is normally considered appropriate.

20.  Army Regulation 635-200, 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.

21.  Army Regulation 635-200, 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.

22.  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." 

23.  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.

24.  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. 

25.  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.

26.  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 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.

27.  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?

28.  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.  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 evidence of record shows the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharge actions processed under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  His discharge proceedings were conducted in accordance with the law and regulations in effect at the time.  The characterization of his discharge was commensurate with the reason for his discharge and his overall record of military service.

2.  However, 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.

3.  A review of the applicant's record shows he was subjected to the ordeals of war while serving in the Kuwait/Iraq from August 2004 to July 2005 and that he had no record of misconduct prior to this service.

4.  Subsequent to these experiences, medical evidence shows he was diagnosed with PTSD by a competent mental health professional.  Therefore, it is reasonable to believe the applicant's PTSD condition existed at the time of his discharge. 

5.  It is concluded that PTSD was 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 characterization of his service to a general discharge under honorable conditions.

6.  With respect to his request for an honorable discharge, he is not entitled to an honorable discharge because an honorable discharge 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 meritorious.  Based on his history of NJP and being AWOL for over 2 months, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, when weighing the same above factors, the applicant's overall service does not rise to a fully honorable characterization of service.  

7.  With respect to changing the narrative reason for separation, he was discharged based on his request in lieu of trial by court-martial.  The narrative reason for his separation is accurately shown on his DD Form 214. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___x____  ___x____  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20130004981, dated 14 November 2013.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by re-issuing the applicant's DD Form 214 to show the characterization of service as "General, Under Honorable Conditions." 

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief pertaining to his new issues.  As a result, the Board recommends denial of so much of the application that pertains to upgrading his discharge to honorable and changing the narrative reason for separation.



      ___________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)                                         AR20150002983



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ABCMR Record of Proceedings (cont)                                         AR20150002983



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