ABCMR and ADRB Insights in PTSD Discharge Upgrade Cases

In every Army discharge review board and Board for Correction of Military Records case, the board writes a decisional document. We recently received a decision in a PTSD case. I won’t divulge many facts, but it was a case where the board upgraded an Other than Honorable discharge to a General discharge. We went back to the board and attempted to get the new General discharge upgraded to an Honorable discharge upon reconsideration. The board provided their longest description to date of their analysis in PTSD cases. In each of the decisional documents that they write, the board usually uses standard language. In some cases, it’s almost like they copy and paste from previous decisions when it comes to their discussion of the applicable laws. There is nothing wrong with that necessarily. I thought it would be helpful to prospective applicant’s with PTSD if we shared some of their discussions of the law. Armed with this knowledge, legal counsel is often invaluable in helping people package their discharge upgrade requests in the best light possible. Here are a few issues that must be addressed in any PTSD discharge upgrade case: “20. 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 a 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. 21. On 3 September 2014, in view of the foregoing information, 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 applicant’s service. 22. BCM/NRs are not courts, no 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 in 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 be incurred ruing 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?

Obviously, there was much more to this decision. But for those readers looking at applying for a discharge upgrade with evidence of PTSD, it is important to have some answers to the above questions. This is the first decision I have seen where the questions were actually listed out. It’s a pretty good starting point.