IN THE CASE OF: BOARD DATE: 15 November 2016 DOCKET NUMBER: AR20150010639 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: 15 November 2016 DOCKET NUMBER: AR20150010639 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: 15 November 2016 DOCKET NUMBER: AR20150010639 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 that his bad conduct discharge be upgraded to a general, under honorable conditions discharge. 2. The applicant states his punishment did not fit the crime and should have been handled by nonjudicial punishment (NJP). 3. The applicant provides copies of his: * Standard Form (SF) 88 (Report of Medical Examination) * SF 93 (Report of Medical History) * SF 603 (Dental Health Records) * DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) * DA Form 2-1 (Personnel Qualification Record) * DA Form 2-2 (Insert Sheet to DA Form 2-1 – Record of Court-Martial Conviction) * three DA Forms 2627 (Records of Proceedings under Article 15, UCMJ (Uniform Code of Military Justice)) * Headquarters, 9th Infantry Division, Fort Lewis, WA, General Court-Martial (GCM) Order Number 48, dated 9 June 1983 * U.S. Army Correctional Activity, Fort Riley, KS, GCM Order Number 13, dated 10 January 1984 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Gwinnett County Police Department Criminal History Request Form * post-service medical records * Recognizing the Symptoms of Bipolar Disorder Information Sheet * three VA Forms 21-4138 (Department of Veterans Affairs (VA) – Statements in Support of Claim) * VA Form 21-534 (VA – Application for Dependency and Indemnity Compensation, Death Pension, and Accrued Benefits by a Surviving Spouse or Child) * Social Security Administration (SSA), Notice of Decision – Fully Favorable * Form SSA-24 (Application for Survivors Benefits) * Secretary of Defense memorandum CONSIDERATION OF EVIDENCE: 1. The applicant's DD Form 4 shows he enlisted in the U.S. Army Reserve on 17 March 1980 for a period of 6 years and he further enlisted in the Regular Army on 9 April 1980 for a period of 3 years. 2. A review of his DA Form 2-1 and DA Form 2-2, in pertinent part, shows he: * was awarded military occupational specialty 19D (Cavalry Scout) * served overseas in Germany from 8 August 1980 to 13 March 1982 * was advanced to private first class (E-3) on 1 February 1981 * was assigned to 3rd Battalion, 5th Cavalry, Fort Lewis, WA, on 30 April 1982 * awarded the – * Army Service Ribbon * Overseas Service Ribbon * Expert Marksmanship Qualification Badge with Grenade Bar * Sharpshooter Marksmanship Qualification Badge with Rifle Bar * reduced to private (E-1) on 11 February 1983 * convicted at a GCM on 23 May 1983 (approved on 9 June 1983) 3. Three DA Forms 2627 show he accepted nonjudicial punishment (NJP), for violation of the UCMJ, as follows: * on 23 June 1981, for disobeying a lawful order and being disrespectful in language toward his superior commissioned officer * on 30 December 1981, for being disrespectful in language toward his superior noncommissioned officer (two specifications) * on 11 February 1983, for being derelict in the performance of his duty 4. Headquarters, 9th Infantry Division, Fort Lewis, WA, GCM Order Number 48, dated 9 June 1983, shows the applicant was tried by a GCM. a. He pled guilty to and was found guilty of violation of the UCMJ, Article 134 (General Article), two specifications, for – * wrongfully possessing some amount of marijuana on 24 March 1983 * wrongfully distributing some amount of marijuana on 24 March 1983 b. On 23 May 1983, he was sentenced to forfeiture of all pay and allowances, confinement at hard labor for one (1) year, and a bad conduct discharge. c. On 9 June 1983, the GCM convening authority approved the sentence and ordered it executed, except for the portion of the sentence as provided for a bad conduct discharge. He also directed the Record of Trial be forwarded to The Judge Advocate General of the Army for review by a Court of Military Review. 5. The U.S. Army Court of Military Review affirmed the findings of guilty and the sentence on 19 August 1983. 6. Headquarters, U.S. Army Correctional Activity, Fort Riley, KS, GCM Order Number 13, dated 10 January 1984, confirmed the applicant's court-martial sentence was affirmed. The provisions of Article 71(c) having been complied with, the bad conduct discharge was ordered duly executed. 7. The applicant's DD Form 214 shows he entered active duty this period on 9 April 1980 and he was separated on 3 February 1984 with a bad conduct discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of court-martial. He completed 2 years, 11 months, and 23 days of net active service this period. 8. Army Board for Correction of Military Records, Record of Proceedings, Docket Number AR20130005125, dated 5 November 2013, shows the applicant's request for upgrade of his bad conduct discharge was denied by the Board. With his application he provided four supporting letters, which he provides once again. a. Letter from the applicant's friend, Christopher R___, dated 13 June 2011. He stated he has known the applicant for eight years. The applicant always displayed a high degree of integrity, responsibility, and ambition, along with good judgment and character. He added the applicant is very dependable, has volunteered on numerous occasions to lead the neighborhood watch program, is a trusted friend, and an outstanding resident in his community. b. Letter from the applicant's pastor, Reverend Robert L. B___, Grace Community Christian Ministries, dated 30 July 2011. He stated he has known the applicant about 20 years. The applicant often attended worship services and he was always a pleasant, joyful, kind, and gentle person. The applicant has been missed (at the church) for the past few years possibly due to his relocation. c. Letter from First Lieutenant Keith L. H___, U.S. Army Reserve, dated 31 December 2012. He stated the applicant moved into his neighborhood in 2003, he has been reliable, he has a lot of integrity, and he has been a great neighbor and an active member of the Home Owners Association. d. The applicant's spouse provided a letter of support, dated 1 March 2013, wherein she contended the applicant's misconduct and criminal actions were due to his inability to help himself. She argued that his mental condition should have been evaluated. She believes he suffered mentally from a head injury sustained when he fell from a truck. Since his discharge the applicant had been receiving mental health treatment. His physician stated he suffers from PTSD as a result of his trauma in the military 20 years earlier. The applicant is unemployable and he has no feeling of worth. She wanted his case reviewed at the highest level and intended to pursue her husband's case throughout his lifetime. 9. In support of his application the applicant provides the following additional documents that were not summarized above. a. Report of Medical History and Report of Medical Examination, both dated 13 March 1980, that document the applicant's medical examination and qualification for entrance into the U.S. Armed Forces. b. Dental records that document the applicant's dental treatment during the course of his military service. c. Gwinnett County Police Department Criminal History Request Form, dated 26 September 2012, that shows a review of state and/or local criminal justice agency files in Georgia returned no criminal history. d. His post-service civilian medical records that document his medical treatment over the course of the period January 2004 to November 2012. The medical records show, in pertinent part, he was diagnosed with major depressive disorder with psychotic features, bipolar disorder with mood swings/anger episodes, and schizo-affective disorder (not otherwise specified (NOS)). e. Recognizing the Symptoms of Bipolar Disorder Information Sheet that shows people with bipolar disorder can have a range of symptoms. Many experience dramatic mood swings, going from emotional highs to emotional lows with more normal moods in between; others have much milder mood changes. f. Three VA Statements in Support of Claim, dated 5 February, 12 June, and 31 December 2015, and an Application for Dependency and Indemnity Compensation, Death Pension, and Accrued Benefits by a Surviving Spouse or Child. They show, in pertinent part, the applicant submitted claims to the VA based on post-traumatic stress disorder (PTSD) and bipolar depression disorder. He asserted, in effect, that he did not receive a mental health evaluation during his military service and this resulted in him being discharged without benefit of a diagnosis relating to any behavioral health issues. g. SSA Application for Survivors Benefits, submitted by applicant's son and SSA Notice of Decision, dated 2 April 2013, that show the SSA made a fully favorable disability decision based on, in pertinent part, the applicant's severe impairments: major depressive disorder with psychotic features, severe obesity, diabetes mellitus, and hypertension. 10. In the processing of this case, an advisory opinion was obtained from the medical staff of the Army Review Boards Agency (ARBA), dated 9 September 2016. a. The staff psychiatrist stated the applicant is now applying for upgrade of his discharge citing new evidence of a mental disorder (PTSD). Her review considered the applicant's records regarding his claim of having a service-related behavioral health disorder (PTSD); psychiatric notes, SSA disability decision letter, and military personnel and medical records. She noted that the Department of Defense (DoD) electronic medical record was not in use at the time of the applicant's service. b. She noted the SSA awarded the applicant benefits based on the diagnosis of major depressive disorder with psychotic features. c. The applicant's civilian psychiatric progress notes (about 30) written by six civilian psychiatrists over a nine year period (2004 to 2013) were reviewed. The applicant was consistently noted to have the following symptoms: mood swings, depression, anxiety, paranoia, paranoid delusions, auditory hallucinations, difficulty sleeping, irritability, and anger. Several notes also document episodic periods of racing thoughts, rapid speech, hypersexuality, insomnia, rage, anger, and homicidal ideation. Over the course of the past nine years, the applicant was diagnosed with several different diagnoses, all within the mood disorder realm: major depression, major depressive disorder with psychotic features, schizo-affective disorder, and bipolar disorder (NOS). d. The advisory official noted there is no mention of PTSD symptoms or a PTSD diagnosis in any of the applicant's medical records dating from 2004 to 2011. The first mention of PTSD occurs in a 15 June 2011 psychiatric progress note that shows, during the visit, the applicant's wife stated she "was concerned that he [the applicant] has PTSD from his trauma in the Military over 20 years ago." The same psychiatrist later states in a progress note, "The patient has a history of PTSD from his trauma in the military 20 years ago." However, there is no record of questions being asked of the applicant about the nature of the trauma or the symptoms arising from the trauma. The psychiatrist also never lists PTSD as one of the applicant's official diagnoses. e. The advisory official also noted that the applicant's wife mentions that the applicant fell off of a truck while on active duty and incurred a head injury. A review of his military medical records revealed that he slipped when getting into a truck while on active duty and injured his right testicle, which subsequently needed to be removed. There is no documentation of the applicant suffering any other traumatic incident while in the Army. There is no other medical or behavioral health condition documented in his military medical records. There are also no mental status examinations or command-directed mental status evaluations in his military service records. f. The advisory states that neither the applicant's extensive psychiatric notes nor his SSA disability decision letter list PTSD as a diagnosis. The applicant's psychiatrists' notes do document that he suffers from the following psychiatric symptoms which can be associated with several different psychiatric disorders including PTSD: depression, mood swings, anxiety, irritability, insomnia, anger, and rage. g. The advisory official concludes that there is no evidence that his serious mood disorder accompanied by psychotic symptoms developed while he was in the military. She adds the applicant's symptoms of depression, mood swings, anxiety, irritability, insomnia, anger, and rage are better accounted for by his disabling mood disorder diagnosis. 11. On 12 September 2016, the applicant was provided a copy of the ARBA advisory opinion to allow him the opportunity to submit comments or a rebuttal. 12. On 2 October 2016, the applicant's spouse requested an extension of the time to submit a response until the applicant's doctor's appointment. On 4 November 2016, she submitted a response on behalf of the applicant. a. She asserted that the bad conduct discharge was too harsh because the applicant's illnesses (PTSD and bipolar disorder) were the cause of his poor judgment and bad decisions. She stated that the applicant experienced two accidents while on active duty; slipping when getting into a truck and slipping when getting into the back of the truck over the tailgate injuring his testicle (resulting in surgical removal) and hitting his head on the metal floor. She added that the applicant never received a mental health evaluation and, therefore, the U.S. Army cannot conclude the applicant did not have PTSD and bipolar disorder when he was discharged from military service. b. She also provided a letter from Mr. SS, Licensed Clinical Social Worker, View Point Health, Lawrenceville, GA, dated 31 October 2016, in which he confirmed the applicant is being treated for schizoaffective disorder, bipolar type, and that he has a history of PTSD. REFERENCES: 1. 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. PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster. 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." 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 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. 4. As a result of the extensive research conducted by the medical community and relatively recent issuance of revised criteria regarding the causes, diagnosis, and treatment of PTSD, the DoD acknowledges that some Soldiers who were administratively discharged under other than honorable conditions (UOTHC) may have had an undiagnosed condition of PTSD at the time of their discharge. It also acknowledges 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. On 3 September 2014, in a memorandum (with attachment), 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 the applicant's service. 6. 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? 7. Although 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 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. 8. On 24 February 2016, in a memorandum, the Principal Deputy Under Secretary of Defense referenced the Secretary of Defense memorandum, issued on 3 September 2014, pertaining considering discharge upgrade requests by veterans claiming PTSD or related conditions, such as Traumatic Brain Injury (TBI). He instructed BCM/NRs to waive, if it is applicable and bars consideration of cases, the imposition of the statute of limitation. He stated that fairness and equity demand, in cases of such magnitude, that a veteran's petition receive full and fair review, even if brought outside of the time limit. Similarly, cases considered previously either by the DRBs or by the BCM/NRs, but without benefit of the application of the Supplemental Guidance, shall be, upon petition, granted de novo review utilizing the Supplemental Guidance. 9. DoD Directive–Type Memorandum (DTM) 11-015 provides that the Integrated Disability Evaluation System (IDES) is the joint DoD-VA process by which DoD determines whether wounded, ill, or injured Service members are fit for continued military service and by which DoD and VA determine appropriate benefits for Service members who are separated or retired for a service-connected disability. The IDES features a single set of disability medical examinations appropriate for fitness determination by the Military Departments and a single set of disability ratings provided by VA for appropriate use by both departments. Although IDES includes medical examinations, IDES processes are administrative in nature and are independent of clinical care and treatment. 10. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 1 (General Information), paragraph 1-33 (Disposition through medical channels), shows disposition through medical channels takes precedence over administrative separation processing. It also shows, in pertinent part, that disability processing is inappropriate if UCMJ action has been initiated or if the Soldier has been medically diagnosed as drug dependent. Accordingly, disability processing is inappropriate in separation actions under chapter 10 (Discharge in Lieu of Court-Martial) or upon conviction by court-martial. b. Chapter 3 (Character of Service/Description of Separation) shows in: (1) paragraph 3-11, a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed; and (2) paragraph 3-7b, 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. 11. Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that the Board 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. DISCUSSION: 1. The applicant contends, in effect, that his bad conduct discharge should be upgraded to general under honorable conditions because the punishment did not fit the crime and he suffers from behavioral health issues, including PTSD. 2. The applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged. Conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process, including the applicant's appeal. 3. The applicant submitted a copy of the Secretary of Defense's memorandum of 3 September 2014 that instructs military corrections boards to liberally consider PTSD. It appears the applicant offers the memorandum as a basis for the review of his discharge. a. The evidence or record shows the policy memorandum applies to those Soldiers who were administratively discharged UOTHC. The applicant was not administratively discharged; he was discharged as a result of court-martial with a bad conduct discharge. b. In that the applicant does not seek to upgrade an UOTHC administrative discharge, the Secretary of Defense's, 3 September 2014, memorandum is not controlling in this case. 4. The applicant contends that he sustained a head injury while serving on active duty and that he should have been referred to the mental health system for disability processing. a. The evidence of record fails to support such injury. Moreover, there is no evidence of record that shows he suffered a traumatic event or that he required mental health treatment during the period of his military service. b. In any event, the evidence of record shows that disability processing is inappropriate in separation actions if UCMJ action has been initiated. c. The applicant was court-martialed and, in pertinent part, sentenced to a bad conduct discharge. 5. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. 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. Absent any mitigating factors, the bad conduct discharge directed was appropriate. 6. Records show the applicant received NJP on three separate occasions for various offenses in violation of the UCMJ. He was then tried and convicted at a GCM. The period of military service during which the applicant committed and was convicted of serious offenses does not demonstrate service under honorable conditions. 7. There is no evidence of record showing the applicant suffered from a medical/ mental condition that was in anyway responsible for his misconduct and criminal behavior. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010639 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010639 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2