IN THE CASE OF:	  

		BOARD DATE:	 25 August 2015 

		DOCKET NUMBER:  AR20150003209 


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 discharge.

2.  The applicant states he was 17 years old when he joined the Army and too young when he arrived in Germany; there were a lot of bad influences and drugs on his base.  In fact, the very day he arrived he went to another Soldier's room and saw him sitting behind a desk piled with a mountain of cocaine.  He had no idea what kind of people he would be serving with in Germany.  

	a.  He was hospitalized, he was on drugs, he fell out of formation, he had heart problems he did not know about until the present, and he had high blood pressure.  Based upon his numerous medical problems he has been diagnosed with, "maybe [he] did have PTSD [Post Traumatic Stress Disorder]."

	b.  He has been out of the military for over 40 years and has never been able to use the GI Bill, though he has previously made an appeal to see if he could use some of his benefits.  When a person is surrounded by good people, good things will happen to them.  If they are surrounded by bad people, then bad things will happen.  Nevertheless, everyone deserves a second chance to better themselves.  Who knows what he might have done if he had been given the chance to finish his service; he could have served until he retired.  The military gave up on him at a very young age.  

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty).
CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100013468, on 16 November 2010.

2.  The applicant was born on 17 November 1956.  He enlisted in the Regular Army at 17 years and 8 months of age on 31 July 1974.

	a.  During the enlistment process he received a medical examination; the results were recorded on a Standard Form (SF) 88 (Report of Medical Examination) and an SF 93 (Report of Medical History), both dated 31 July 1974. While these medical documents did not list any medical deficiencies, they did indicate he had used marijuana at least two times a week for several months.  

	b.  He held military occupational specialty 76Y (Unit Supply Specialist).  The highest rank/grade he attained during his military service was private first class/E-3.

3.  His record contains a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ) that shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ, on                 11 December 1974, while still assigned to advanced individual training, for wrongfully possessing one ounce, more or less, of marijuana. 

4.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows he served in Germany, his first permanent duty station, from on or about 9 January 1975 to on or about 7 April 1976.  

5.  His record contains a DA Form 2627 that shows he accepted NJP under the provisions of Article 15 of the UCMJ, on 20 March 1975, for being absent from his place of duty at the morning formation on 12 March 1975 and remaining absent until 1115 hours on 12 March 1975.

6.  His immediate commander initiated a Bar to Reenlistment against him on 6 May 1975, citing his inability to accept the responsibility for being a Soldier, placing his personal desires ahead of his military service, requiring intensive supervision to complete simple tasks, and becoming a liability to the unit.  He was provided with a copy of the bar to reenlistment, but he elected not to submit a statement on his own behalf.  His bar was ultimately approved by the approval authority.

7.  His record contains a DA Form 2627 that shows he accepted NJP under the provisions of Article 15 of the UCMJ, on 20 June 1975, for being disrespectful in language toward a superior noncommissioned officer (NCO) and disobeying a lawful order by stating "you don't tell me nothing anymore, you ain't my squad leader anymore and I don't have to listen to you any more…you Chicanos ain't s**t, you're all alike."

8.  His record contains a DA Form 2627 that shows he accepted NJP under the provisions of Article 15 of the UCMJ, on 17 June 1975, for willfully disobeying the lawful order of an NCO to be prepared for an inspection in his room.

9.  His record contains an SF 600 (Chronological Record of Medical Care), an  SF 88, and an SF 93, dated 20 June 1975, which show he received a separation medical physical.  The examining physician did not note any medical conditions and qualified him for separation.

10.  His record contains a series of SFs 600, dated 5 September 1975, showing the applicant was sent to the hospital.

	a.  He was seen on 5 September 1975 for lethargy and bizarre behavior.  He had been observed on the morning of 5 September 1975 behaving inappropriately, staggering, and talking incoherently.  When questioned, he admitted to taking several pills his girlfriend had given him.  The doctor opined the symptoms were the result of drug abuse.  After being treated, he was released on or around 1400 hours.

	b.  On 5 September 1975, at 1700 hours, he was again sent to the hospital for lethargy, bizarre behavior, and difficulty breathing.  The medical notes indicate he had been seen earlier that day for what had been felt to be drug abuse.  The symptoms he was currently presenting were similar to the symptoms from earlier that day.  His physician noted he again appeared to have drug intoxication which was likely the result of an opiate.  The applicant did admit to taking an unspecified drug given to him by his girlfriend for pain due to a recent tooth extraction.  The applicant was admitted to the hospital for observation and detox and was discharged on 7 September 1975.  

11.  His record contains an SF 600, dated 24 September 1975, showing he was referred to the hospital for a positive urine sample by the Alcohol and Drug Abuse Control Program (ADACP).  His urine tested positive for Darvon and phenobarbital.  The applicant was given Darvon on 2 September 1975 and a phenobarbital containing drug after a tooth extraction, which could account for the positive urine; however, at the time of the urine collection the applicant seemed far more intoxicated than could be accounted for by the prescribed pills. Also the applicant admitted to using medications provided by his girlfriend.  Urinary surveillance was recommended.  

12.  His record contains an undated SF 513 (Clinical Record/Psychiatric Evaluation); however, it appears this evaluation was conducted sometime between 5 and 24 September 1975.  This evaluation notes the applicant's history of marijuana use.  The examining medical official stated the applicant had no previous history of any emotional problems such as depression, anxiety, nervousness, etc.  The examiner noted the applicant was not depressed and there were no delusions, hallucinations, or thought disorder.  His insight and judgement were intact.  

13.  His record contains a DA Form 2627 that shows he accepted NJP under the provisions of Article 15 of the UCMJ, on 9 December 1975, for stealing an 8-track stereo tape player and a set of headphones valued at $125.00 from another Soldier.  

14.  His record contains an SF 600, dated 12 December 1975, which shows he was referred to the hospital by ADACP because he tested positive for drug use on two urinalyses for "MQE" while on urinary surveillance.  His rehabilitation potential was listed as fair to poor.  There was no clinical evidence of drug abuse at that time; however, it was recommended the applicant participate in an acute drug rehabilitation program.  

15.  His records contains several ADACP forms.  The first form was dated 
12 December 1975 and the remaining three forms were undated.  However, it appears he was treated for alcohol and drug abuse and made "fair" progress.

16.  He was issued a temporary physical profile on 15 December 1975.  The condition for which the profile was issued was listed as a "situational adjustment problem."  

17.  His record contains a DA Form 2627 that shows he accepted NJP under the provisions of Article 15 of the UCMJ, on 12 February 1976, for failing to go at the time prescribed to his appointed place of duty.

18.  His records also contain an extensive history of negative counseling by several members of his chain of command for various infractions, including multiple instances of failure to repair, disobeying orders, disrespect, theft or larceny, poor appearance, negative attitude, unsatisfactory performance, unsecure property, dereliction of duty, and possession of marijuana.

19.  His record contains an SF 600, dated 23 March 1976, which shows he was referred to medical personnel by ADACP because his urine tested positive for morphine.  The medical note indicated he had been in an acute rehabilitation program since December 1975 because his urine tested positive for MQE.  His rehabilitation potential was listed as poor.  There was no clinical evidence of drug abuse at that time; however, it was recommended the applicant continue the acute drug rehabilitation program.  The medical notes further stated that if the applicant had one more positive urine sample he should be recommended for discharge as a rehabilitation failure.  

20.  He was convicted by a special court-martial on 8 April 1976 of one specification of theft.

21.  His immediate commander notified him on 21 June 1976 of his intent to initiate separation action against him under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), by reason of misconduct for frequent incidents of a discreditable nature.  His immediate commander recommended an under other than honorable conditions character of service.

22.  He acknowledged receipt of the notification of his pending separation action on 24 June 1976.  He was advised by counsel of the basis for the contemplated action to separate him for misconduct under the provisions of Army Regulation 635-200.  He requested consideration of his case by a board of officers, personal appearance before a board of officers, representation by counsel, and elected not to submit a statement in his own behalf.  He further indicated he understood he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him and that in the event of the issuance of an undesirable discharge under other than honorable conditions, he might be ineligible for many or all benefits as a veteran under both Federal and State laws, and he might encounter substantial prejudice in civilian life.

23.  His immediate commander initiated separation action against him on          24 June 1976, under the provisions of chapter 13 of Army Regulation 635-200.  Specifically, the immediate commander cited the applicant's frequent incidents of a discreditable nature including his NJP's, AWOL, and court-martial.  The immediate commander stated the applicant's actions, behavior, and attitude precluded rehabilitation.  He had demonstrated little desire to return to duty and was counseled on multiple occasions by various members of the chain of command.  His record and failure to react constructively to the rehabilitation program indicated he should not be retained in the service.  This was followed by a recommendation of approval by his intermediate commander.

24.  A board of officers convened at Fort Riley, Kansas on 16 July 1976, to determine whether the applicant should remain in the service or be administratively separated.  The board recommended his elimination from the service by reason of misconduct with the issuance of an Undesirable Discharge Certificate.

25.  The convening/separation authority approved the board proceedings on 26 July 1976, and ordered the applicant's discharge from the Army under the provisions of chapter 13 of Army Regulation 635-200 by reason of misconduct.  The separation authority directed that he be furnished an Undesirable Discharge Certificate.  

26.  The applicant was accordingly discharged on 28 July 1976.  The 
DD Form 214 he was issued shows he completed a total of 1 year, 8 months, and 7 days of creditable active military service with 111 days of lost time.

27.  The Army Discharge Review Board denied his petition for an upgrade of his discharge on 24 August 1979.

28.  The applicant's record does not contain and he has not provided any evidence that shows he was diagnosed with PTSD-like symptoms during his military service or that shows he was diagnosed with PTSD after his military service.  Additionally, there is also no evidence that shows he went through a traumatic event like combat, assault, or disaster.

29.  The Army Review Boards Agency sent him a letter on 14 April 2015, requesting he provide a copy of medical documents supporting his claim of PTSD.  The applicant did not respond to the letter.  

30.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 13 contained the policy and outlined the procedures for separating individuals for misconduct.  It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  (a) frequent incidents of a discreditable nature with civil or military authorities, (b) sexual perversion, (c) drug addiction, (d) an established pattern of shirking, and/or (e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

31.  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.

32.  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.

33.  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." 

34.  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.

35.  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. 

36.  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.  

37.  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.

38.  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?

39.  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 applicant's request for reconsideration of his previous request for a discharge upgrade as well as his argument that "maybe [he] did have PTSD" were carefully considered.

2.  His record does not contain and he has not provided any evidence that shows he was diagnosed with PTSD-like symptoms during his military service or that shows he was diagnosed with PTSD after his military service.  Additionally, there is no evidence to show he went through a traumatic event like combat, assault, or disaster.  Simply stating that he may have had PTSD is not the same thing as having been diagnosed by a qualified medical professional.  Furthermore, the fact that he suffers from other medical conditions does not mean he also suffers from PTSD. 

3.  The applicant was 17 years and 8 months of age at the time of his enlistment, 18 years of age at the time of his first NJP, nearly 19 years of age at the time he was barred from reenlistment, and 19 years and 4 months of age at the time he was court-martialed.  There is no evidence his pattern of misconduct was a result of his age or that he was any less mature than other Soldiers of the same age who successfully completed their terms of service.

4.  The applicant's records reveal a history of misconduct that includes negative counseling, drug abuse, theft, numerous instances of NJP, and one court-martial. He was provided with multiple opportunities for rehabilitation by various members of his chain of command and the medical community, but he failed to respond constructively.  Accordingly, his chain of command initiated separation action against him.

5.  The evidence of record shows his separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service.  The reason for discharge and the characterization of service were both proper and equitable.

6.  Based on his record of indiscipline, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Based on the foregoing, there is insufficient evidence to justify an upgrade his character of service to general or honorable.

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 to amend the decision of the ABCMR set forth in Docket Number AR20100013468, dated 16 November 2010.





      ___________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)                                         AR20150003209





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ABCMR Record of Proceedings (cont)                                         AR20150003209



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