IN THE CASE OF:  	  

		BOARD DATE:  28 April 2015  	    

		DOCKET NUMBER:  AR20150003500 


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 a medical discharge, an upgrade of his character of service to honorable, and reinstatement of his rank and pay based on the 3 September 2014 memorandum from the Secretary of Defense providing guidance for post-traumatic stress disorder (PTSD).

2.  He states:

   a.  He received a traumatic brain injury (TBI) when he was beaten and almost killed during an on-base mugging.  The TBI and PTSD that resulted from this event were undiagnosed for years.  All of his problems happened after the incident on 13 September 1991.
   
   b.  He was a model Soldier with an honorable discharge (HD) from the U.S. Marine Corps (USMC) and he was on the list for promotion to private first class (PFC)/E-3 before the incident.  Eighteen months later he was discharged.
   
   c.  His commanding officer signed his discharge documents acknowledging his receipt of notification of the recommendation to discharge him.  He was told he would receive an HD and he did not notice the change until after he left Panama.  A military officer should not lie or cheat his troops, which his commanding officer did by signing his name where his (the applicant's) signature should be.
   d.  He received a 100-percent disability rating from the Department of Veterans Affairs (VA) in 2011.  While gathering documents regarding the attack, he found the discharge papers.  His TBI and PTSD were incurred at a time before those problems were fully understood.  Instead of getting help, advantage was taken of him.
   
   e.  He is being hurt by the loss of his Montgomery GI Bill.

3.  He provides a self-authored letter and the Army Board for Correction of Military Records (ABCMR) denial letter dated 27 November 2012.

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 AR20120009052, on 27 November 2012. 

2.  Following a period of service in the USMC Reserve, the applicant enlisted in the Regular Army on 12 September 1990.  After completing initial entry training, he was awarded military occupational specialty 11B (Infantryman) and assigned to duty in Panama.

3.  His record does not include documentation providing details of an attack on him on 13 September 1991.

4.  His record includes DA Forms 4856 (General Counseling Form) documenting monthly performance counseling he received during May to September 1992.  The forms show he held pay grade E-3 during this period.  Each noncommissioned officer (NCO) who provided counseling indicated he was satisfied with his performance.

5.  On 1 October 1992, he acknowledged receipt of a preliminary suspension of his driving privileges on all Department of Defense military installations due to a citation for intoxicated driving he received on the same date.

6.  On 2 October 1992, he was counseled for driving while intoxicated.

7.  On 30 October 1992, he was counseled for writing bad checks.

8.  On 5 November 1992, his battalion commander imposed nonjudicial punishment (NJP) against him under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for operating a vehicle while impaired by alcohol on 1 October 1992.  His punishment included reduction to private (PV2)/E-2 which was suspended to be automatically remitted if not vacated before 5 May 1993.

9.  On 14 November 1992, he was counseled for missing movement.

10.  On 18 December 1992, his battalion commander vacated the suspension of the applicant's NJP based on his failure to go at the time prescribed to his appointed place of duty on 15 November 1992.  On 21 December 1992, he was reduced to PV2/E-2 effective 18 December 1992.

11.  On 30 December 1992, he was counseled for writing two bad checks.

12.  On or about 7 January 1993, he underwent a mental status evaluation in conjunction with consideration for administrative separation.  He was found to be mentally responsible and to have the mental capacity to understand and participate in the proceedings.  The examining social worker found no mental health diagnosis and stated the applicant had mental health clearance for whatever action was deemed appropriate by his command.

13.  On 19 February 1993, he underwent a medical examination.  The examining physician noted no significant physical findings and found him qualified for discharge.  The examining physician noted the applicant had undergone surgical repair of a fracture of the left side of his face incurred on 13 September 1991.

14.  On 1 March 1993, his company commander notified him he was initiating action to separate him under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for a pattern of misconduct.  He stated the applicant's conduct had been prejudicial to good order and discipline and he cited counseling for bad checks, driving while impaired, missing formation, and missing movement as reasons for the recommendation.

15.  The record includes a memorandum bearing the applicant's signature block acknowledging receipt of notification of the action to separate him.  The memorandum was signed by the company commander.

16.  On 5 March 1993, the applicant acknowledged he had been advised by consulting counsel of the basis for his contemplated separation for a pattern of misconduct under the provisions of Army Regulation 635-200, chapter 14; the rights available to him; and the effect of a waiver of his rights.  He elected not to submit statements in his own behalf and he acknowledged he could expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him.
17.  On 11 March 1993, the separation authority approved his separation and directed the issuance of a General Discharge Certificate.  On 13 April 1993, he was discharged in accordance with the separation authority's decision.  His DD Form 214 shows he held the rank/grade of PV2/E-2 at the time of his discharge and he completed 2 years, 7 months, and 2 days of net active service
this period.

18.  He provides a page from a notice of an increase in his VA service-connected disability rating.  The page shows he was granted a 0-percent rating for "facial scar associated with residual left zygomatic fracture" effective 30 December 2009.  He was granted the following ratings effective 7 February 2011:

* 100 percent for PTSD with depressive disorder, panic disorder with agoraphobia, and alcohol abuse; and mood disorder and personality change due to head trauma (increased from 30 percent)
* 50 percent for residuals of left orbital fracture with headaches and scar (increased from 10 percent)

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

	a.  Paragraph 1-35 (Disposition through Medical Channels) of the version in effect at the time stated that when the examining medical officer decided a Soldier being considered for separation for misconduct did not meet the retention medical standards, he or she would refer the Soldier to a medical board.  Based on approved medical board proceedings, a commander exercising general court-martial authority could direct processing the Soldier through disability channels per Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) when it was determined that:

		(1)  the disability was the cause or substantial contributing cause of the misconduct or

		(2) circumstances warranted disability processing instead of administrative processing.

	b.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record.  Only a general court-martial convening authority may approve an HD or delegate approval authority for an HD under this provision of the regulation.

	c.  Paragraph 3-7a provides that an HD 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.

20.  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." 

21.  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.

22.  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. 

23.  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 under other than honorable conditions 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.  

24.  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 under other than honorable conditions 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.

25.  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?

26.  Although the DOD acknowledges that some Soldiers who were administratively discharged under other than honorable conditions 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 under other than honorable conditions 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 under other than honorable conditions.  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 does not support the applicant's request for a medical discharge, an upgrade of his character of service to honorable (for educational benefits), or reinstatement of his rank and pay.
2.  The record shows he was found to be mentally and physically fit for separation processing.  There is no evidence showing he was diagnosed with any conditions that fell below medical retention standards and warranted review by a medical board during his Army service.

3.  The VA granted him a service-connected disability rating for several conditions that may be related to injuries he incurred in September 1991.  However, VA ratings granted several years after the fact are not evidence that the rated conditions were the cause or substantial contributing cause of his misconduct or that circumstances at the time of his discharge processing warranted disability processing instead of administrative processing.

4.  The applicant correctly notes his commander signed a memorandum acknowledging receipt of the notification of separation action that should have been signed by the applicant.  There is no evidence to support his allegation that he was led to believe he would receive an HD or his allegation that his commander attempted to lie or cheat by improperly signing the acknowledgment memorandum.  The record shows he later consulted with counsel and acknowledged the separation action against him, his rights, and the character of service he could receive.

5.  He received NJP for driving while intoxicated, his conduct led to a vacation of the suspended portion of his NJP, and he was counseled for writing bad checks and missing movement.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an HD.

6.  He received a suspended reduction to PV2/E-2 and the suspension was vacated.  The record shows he held the rank/grade of PV2/E-2 at the time of his discharge.  In the absence of evidence showing inequity or injustice in his reduction to PV2/E-2, there is no basis for reinstating his rank and pay to 
PFC/E-3.

7.  Soldiers normally received under other than honorable conditions discharges for serious misconduct.  The Secretary of Defense memo refers to cases in which PTSD or PTSD-related conditions may be reasonably determined to have existed at the time of discharge which may have caused the misconduct in which Soldiers received a under other than honorable conditions discharge.  This is not the case where the applicant received a GD.  Therefore, it is presumed that the "whole person" approach was used by the applicant's command, including medical documentation and evaluations when deciding his characterization of service, in spite of his serious misconduct, when issuing him a GD.  Therefore, in view of the foregoing, there is no basis for granting the requested relief.
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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________X___________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20120009052



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ABCMR Record of Proceedings (cont)                                         AR20150003500



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