IN THE CASE OF: BOARD DATE: 26 July 2016 DOCKET NUMBER: AR20150004260 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ____X____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 26 July 2016 DOCKET NUMBER: AR20150004260 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: 26 July 2016 DOCKET NUMBER: AR20150004260 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 an upgrade of his bad conduct discharge, to either an under honorable conditions (general) discharge or an honorable discharge. 2. The applicant states his entire service record shows he was an exemplary Soldier. He was diagnosed with post-traumatic stress disorder (PTSD) due to combat action in Operation Iraqi Freedom (OIF). He received an honorable discharge following his first enlistment. Toward the end of his first enlistment, prior to his reenlistment, he endured family trouble and was twice returned from deployment to the continental U.S. (CONUS). His PTSD caused emotional problems and his family troubles mounted. During his second emergency leave, he went absent without leave (AWOL) to deal with his problems. He was discharged as a result. 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 26 October 2007. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years 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. On 22 September 2000, the applicant enlisted in the Regular Army. He was awarded military occupational specialty 25L (Cable Systems Installer/Maintainer) after he completed his initial entry training. 3. His records show he served in Kuwait from 20 August 2003 to 21 June 2004. 4. On 17 October 2005, he was convicted by a general court-martial of: a. A single specification of Charge I, for violating Article 85 of the Uniform Code of Military Justice (UCMJ); specifically, for quitting his unit, with intent to shirk important service, on or about 29 April 2005, and for remaining absent in desertion until on or about 8 July 2005. b. A single specification of Charge II, for violating Article 86 of the UCMJ; specifically, for unauthorized absence from his unit from on or about 23 April to on or about 26 April 2005. c. A single specification of Charge III, for violating Article 87 of the UCMJ; specifically, for missed movement of flight/mission on or about 23 April 2005. d. A single specification of Charge IV, for violating Article 90 of the UCMJ; specifically, for willfully disobeying the lawful command of a superior commissioned officer, on or about 23 April 2005. e. A single specification of Charge V, for violating Article 123a of the UCMJ; specifically, for unlawfully uttering eleven checks with intent to defraud, between on or about 21 April 2005 and on or about 10 May 2005. f. His sentence included reduction to the lowest enlisted grade, confinement for six months, and separation with a bad-conduct discharge. g. The convening authority approved the sentence on 18 January 2006, and except for the bad conduct discharge, ordered it executed. The record of trial was forwarded to The Judge Advocate General of the Army for review by the U.S. Army Court of Criminal Appeals. 5. The U.S. Army Court of Criminal Appeals affirmed the approved findings of guilty and the sentence as approved by the convening authority, on 9 January 2007. The U.S. Court of Military Appeals denied his petition for review. 6. General Court-Martial Order Number 128, issued by Headquarters, U.S. Army Armor Center and Fort Knox, Kentucky on 14 June 2007, shows the appropriate authority ordered the bad conduct discharge to be executed. 7. The applicant was discharged on 26 October 2007, under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 3, as a result of court-martial, desertion. The DD Form 214 he was issued shows he was given a bad conduct character of service. 8. His medical records are not available for review in this case; however, the available record is void of any documentation that shows he was diagnosed with a mental or behavioral health disorder during his period of active service. 9. In connection with the processing of this case, an advisory opinion was obtained on 1 July 2016, from the Chief, Behavioral Health Division, Office of the Surgeon General (OTSG), Headquarters, Department of the Army. The medical advisory opinion states: a. The applicant entered active duty on 22 September 2000 and received a bad conduct discharge on 26 October 2007 in accordance with Army Regulation 635-200, chapter 3 (court-martial, desertion). He spent ten months in Kuwait from August 2003 to June 2004. b. In March 2015, the applicant requested the Board upgrade his discharge due to PTSD. The OTSG was asked to determine if there is a nexus between PTSD and the misconduct that led to his separation. This opinion is based on the information provided by the Board and records available in the DOD electronic medical record (AHLTA). c. The applicant states he was diagnosed with PTSD secondary to combat in OIF during his first enlistment from which he received an honorable discharge. There is no documentation of such a diagnosis. On 30 October 2015, the Board requested that the applicant provide additional information to support a diagnosis of PTSD but none is included in the case file. d. Behavioral health AHLTA notes dated 27 and 28 April 2005 indicate that the applicant was on emergency leave from Kuwait to deal with family problems and missed his return flight. He was diagnosed with an occupational problem and it was noted that he "does not have a psychiatric diagnosis that prevents him from being deployed." 10. A copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal. He did not respond. 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 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. b. 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. c. Paragraph 3-11 of the regulation in effect at the time provided that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must have been completed and the affirmed sentence ordered duly executed. 2. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 3. 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. 4. The Diagnostic and Statistical Manual of Mental Disorders (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. 5. 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. 6. In view of the foregoing, on 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards 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. DISCUSSION: 1. The applicant's request for an upgrade of the bad conduct character of service reflected on his DD Form 214 was carefully considered. 2. The evidence of record shows he was found guilty by a general court-martial of numerous violations of the UCMJ, to include desertion. His sentence consisted of a bad conduct discharge, confinement for six months, and reduction to the lowest grade. There is no evidence he was diagnosed with any mental or behavioral health deficiency during his period of active service or that such a deficiency contributed to the misconduct that led to his court-martial and bad conduct discharge. 3. Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible re-characterization of their overall service. In the applicant's case, by his own admission, he departed AWOL to deal with family problems. An OTSG advisory official found, in effect, no nexus between a possible behavioral health condition and his misconduct. 4. Any redress by this Board of the finality of a court-martial conviction is prohibited by law. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. 5. The applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. In view of the foregoing, there is an insufficient basis for granting clemency in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150004260 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150004260 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2