BOARD DATE:	  21 July 2015

		DOCKET NUMBER:  AR20150009672 


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 his general, under honorable conditions discharge to be upgraded to honorable.

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

3.  The applicant provides a letter from the Department of Veterans Affairs (VA) and VA Form 21-4138 (Statement in Support of Claim).

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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140003284, on 11 December 2014.

2.  As a new argument the applicant states the Secretary of the Army (i.e. the Secretary of Defense) recently issued a directive concerning the upgrading of discharges for people like him who were discharged for misconduct and were later diagnosed with post-traumatic stress disorder (PTSD).  

3.  As new evidence, the applicant provides a letter, dated 13 November 2014, from the VA. 

4.  The applicant enlisted in the Regular Army on 3 March 2009 and he held military occupational specialty 92W (Water Treatment Specialist).  On 6 November 2009, he was assigned to Company A, 526th Brigade Support Battalion (BSB), 101st Airborne Division, Fort Campbell, KY.  He served in Afghanistan with his assigned unit from 30 May 2010 to 17 April 2011.  

5.  On 26 September 2011, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being disrespectful in language toward three noncommissioned officers (NCOs) and failing to obey a lawful order.

6.  Between 9 August 2011 to 30 October 2012, he was counseled on numerous occasions by various members of his chain of command for failing to follow instructions, being disrespectful toward NCOs, failing to be at his appointed place of duty, failing to maintain personal grooming standards, failing to keep his chain of command informed of his college classes, leaving his place of duty without permission, and disobeying a lawful order.  

7.  On 28 July 2012, he pled guilty to, and was found guilty of, speeding (82 miles per hour (mph) in a 45 mph zone) and reckless driving.

8.  On 17 September 2012, the applicant received a medical examination.  In his report of his medical history he indicated he had no anxiety or panic attacks, no loss of memory, no trouble sleeping, no depression or excessive worry, no attempted suicide (suicide ideation), never used illegal drugs or abused prescription drugs nor had he received any counseling of any type.  The medical examining official noted the applicant was qualified for continued service or separation with no disqualifying conditions.  He received a physical profile rating that found him medically fit for any worldwide military assignment with no geographic or physical limitations.  

9.  On 16 November 2012, his immediate commander notified him that discharge action was being initiated against him under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 14-12c, for misconduct - the commission of serious offenses.  He stated he was recommending he receive an under other that honorable conditions discharge and the reason for the proposed action was his: 

* wrongfully transporting a concealed handgun within the limits of Fort Campbell
* recklessly driving a personally-owned vehicle 37 mph over the posted speed limit
* disobeying lawful orders on several occasions 
* being disrespectful in language toward NCOs on several occasions
* being derelict in the performance of his duties on several occasions
* failing to go to his appointed place of duty on two occasions

10.  On 28 November 2012, he consulted with legal counsel and he was advised of the basis for the contemplated separation action and the procedures and rights available to him.  He acknowledged he understood that as a result of an under other than honorable conditions discharge he might be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life.  He requested to have his case heard by an administrative separation board.

11.  On 26 December 2012, his immediate commander was notified that he had been arrested by the county police on domestic violence charges (against an unrelated female).  The charges were subsequently dropped.

12.  Between 29 November 2012 and 5 February 2013, he was counseled on numerous occasions by members of his chain of command for lying to an NCO on several occasions, failing to be at his appointed place of duty on several occasions, disobeying lawful orders on several occasions, leaving his place of duty without permission on two occasions, failing to follow instructions, failing to be in the proper uniform, acting insubordinate to an NCO, and failing to obey an order or regulation.

13.  On 22 February 2013, an administrative separation board convened to consider the applicant's separation action.  The board recommended he be discharged for misconduct with an under other than honorable conditions discharge.

14.  Based on motions filed by his legal counsel, the administrative separation board reconvened on 13 March 2013 to correct a procedural error and consider the applicant's separation action.  The board modified their previous findings and again recommended discharge for misconduct with an under other than honorable conditions discharge.  

15.  On 28 March 2013, the approving authority approved the board's findings and directed the applicant's discharge for misconduct.  On 19 April 2013, 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, paragraph 14-12c, by reason of misconduct (serious offense) with an under other than honorable conditions characterization of service.  He completed 4 years, 1 month, and 17 days of creditable active service.  There is no evidence he was awarded the Purple Heart, Combat Action Badge or an award for valor.

17.  On 27 January 2014, the Army Discharge Review Board (ADRB) reviewed the applicant's request for an upgrade of his discharge to an honorable discharge.  The ADRB determined his discharge was too harsh based on the overall length of his service and, as a result, it was inequitable but the reason for discharge was both proper and equitable.  The ADRB granted him partial relief by upgrading his discharge to general, under honorable conditions.  

18.  His DD Form 214 was subsequently voided and on 12 February 2014 he was issued a new DD Form 214 that shows he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12c, by reason of misconduct (serious offense) with an under honorable conditions (general) characterization of service.

19.  On 11 December 2014, the ABCMR denied a request to upgrade his general discharge to an honorable discharge based on his overall record of service.  In his request for an upgrade, he stated he had been diagnosed with PTSD.  However, the Board did not consider PTSD as a factor at the time because his record was void of any evidence and he did not provide any evidence to show he was diagnosed with PTSD and/or any other psychiatric conditions or disorders.  In fact, his separation physical shows he met retention standards and was medically found fit for duty or separation as determined by his chain of command. 

20.  To support his new application, the applicant provided his VA decision letter, wherein it stated that effective 8 August 2014 his compensation disability rating was increased from 50 percent (%) to 70% for PTSD also claimed as depression, sleep disturbance, and bipolar disorder.  (His first VA rating decision was effective 20 April 2013.)  The higher rating was warranted due to:

* near continuous panic affecting his ability to function independently, appropriately, and effectively
* difficulty in adapting to stressful circumstances
* suicidal ideation
* inability to establish and maintain effective work and social relationships
* difficulty in adapting to work settings
* occupational and social impairment
* disturbances of motivation and mood
* flattened effect
* panic attacks more than once a week
* mild memory loss
* depressed mood
* chronic sleep impairment
* anxiety and suspiciousness  

21.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and abuse of illegal drugs.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  

22.  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.

23.  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." 

24.  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.

25.  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. 

26.  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.  

27.  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 (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.

28.  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?

29.  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 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 confirms the applicant was discharged on 19 April 2013 under the provisions of Army Regulation 635-200, paragraph 14-12c, for misconduct with an under other than honorable conditions discharge.  However, in January 2014 his discharge was upgraded to a general, under honorable conditions discharge because the ADRB determined his characterization of service was too harsh.  

2.  The Secretary of Defense directive tasked the DRBs to consider members who had been administratively discharged under other than honorable conditions and who have been diagnosed with PTSD by a competent mental health professional in order to determine if it would be appropriate to upgrade the characterization of the applicant's service.

3.  While the applicant was diagnosed with PTSD after his discharge, the evidence of record confirms during his active duty service he was counseled on numerous occasions by his chain of command for repeatedly failing to follow instructions, being disrespect toward NCOs, failing to be at his appointed place of duty, failing to maintain personal grooming standards, leaving his place of duty without permission, and disobeying lawful orders.  In addition, he received NJP for being disrespectful in language towards NCOs and failing to obey a lawful order.  A diagnosis of PTSD post service does not excuse a Soldier's repeated acts of misconduct over an extended period of time.  The applicant served in Afghanistan.  However, he provided no evidence nor did his record show a specific traumatic or combat event that would lead one to conclude his patterns of misconduct throughout his entire period of service were solely attributable to PTSD. 

4.  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 extended history of documented indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, his overall service does not rise to a fully honorable characterization of service and his request for relief should be denied.  


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 AR20140003284, dated 11 December 2014.



      _______ _   _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)                                         AR20150009672



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ABCMR Record of Proceedings (cont)                                         AR20150009672



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