AR20150009590

IN THE CASE OF:

BOARD DATE: 4 October 2016

DOCKET NUMBER: AR20150009590

BOARD VOTE:

________ ________ ________ GRANT FULL RELIEF

________ ________ ________ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

___x____ ___x____ ___x____ DENY APPLICATION

2Enclosures
1. Board Determination/Recommendation
2. Evidence and Consideration

IN THE CASE OF:

BOARD DATE: 4 October 2016

DOCKET NUMBER: AR20150009590

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.

IN THE CASE OF:

BOARD DATE: 4 October 2016

DOCKET NUMBER: AR20150009590

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 his under other than honorable conditions discharge be upgraded to an under honorable conditions (general) discharge.

2. The applicant states he served during a period when Soldiers were not diagnosed with post-traumatic stress disorder (PTSD). He contends that if he could obtain Department of Veterans Affairs (VA) mental health care, it would quickly become apparent how the lack of a PTSD diagnosis led to his actions and how those actions have dominated his life since the incident occurred.

3. The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

CONSIDERATION OF EVIDENCE:

1. Title10, U.S.Code, section1552(b), provides that applications for correction of military records must be filed within 3years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2. The applicant enlisted in the Regular Army on 7 April 1970. He was awarded military occupational specialty 67N (Helicopter Repairman) after he completed his initial entry training.

3. He served in Vietnam from 23 October 1970 to 22 October 1971.

4. He accepted nonjudicial punishment (NJP), under the provisions of Article
15 of the Uniform Code of Military Justice (UCMJ), on 7 March and 6 April 1972, for multiple violations involving his failure to go at the time prescribed to his appointed place of duty.

5. He departed absent without leave (AWOL) on 3 May 1972 and remained AWOL until 3 July 1972.

6. Court-martial charges were preferred against him on 10 August 1972 for the AWOL offense.

7. He consulted with legal counsel on 1 September 1972 and voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter10.

8. In doing so, he acknowledged that the charges preferred against him under the UCMJ authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged:

* he had not been subjected to coercion with respect to his request for discharge
* he had been advised of the implications that were attached to it
* he could be discharged under other than honorable conditions and he could be ineligible for many or all benefits administered by the VA
* he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits as a veteran under both Federal and State laws
* he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge

9. He elected not to submit a statement in his own behalf.

10. The separation authority approved his request for discharge on 18 September 1972 and directed the issuance of an Undesirable Discharge Certificate. He was discharged accordingly on 5 October 1972. His DDForm214 shows he accrued 64 days of lost time and his service was characterized as under conditions other than honorable.

11. There is no evidence in the applicant’s available records that shows he had a mental health diagnosis, that may have occurred while he was serving on active duty, and which may have contributed to the acts of misconduct that led to his discharge.

12. There is no evidence indicating the applicant applied to the Army Discharge Review Board for an upgraded of his discharge.

13. By letter dated 31 March 2016, the Army Review Boards Agency, Case Management Division, requested the applicant provide evidence of his PTSD diagnosis. He did not submit medical records in response to this request.

REFERENCES:

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

a. 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 members 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.

b. Paragraph3-7b 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.

c. Chapter10, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

2. 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.

3. The 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.

4. 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.

5. In view of the foregoing, on 3September 2014, the Secretary of Defense directed the Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records 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.

DISCUSSION:

1. The available evidence shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with legal counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter10, for the good of the service to avoid trial by court-martial.

2. The evidence further shows that his voluntary request for discharge under the provisions of Army Regulation 635-200, chapter10, to avoid trial by court-martial, was administratively correct and in conformance with applicable laws and regulations. There is no indication the request was made under coercion or duress.

3. His record of indiscipline includes NJP on two occasions and court-martial charges for being AWOL. Based on his record of misconduct, and in view of the fact that he voluntarily requested discharge in order to avoid a trial by court-martial that could have resulted in a punitive discharge, his overall record of service did not support the issuance of an honorable or general discharge by the separation authority at the time.

4. The applicant’s contention that he served during a period when Soldiers were not diagnosed with PTSD is noted; however, there is no evidence in his available records that suggests he was suffering from a disabling behavioral health condition that warranted special consideration. In addition, he failed to provide medical documentation showing he has been diagnosed with PTSD.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings AR20150000953

Enclosure 1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) AR20150009590

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20150009590

8

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2