IN THE CASE OF: BOARD DATE: 3 November 2016 DOCKET NUMBER: AR20150011866 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: 3 November 2016 DOCKET NUMBER: AR20150011866 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: 3 November 2016 DOCKET NUMBER: AR20150011866 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 honorable. 2. The applicant states: a. He was discharged under other than honorable conditions. Under new Department of Defense policy, review boards are directed to make a determination on upgrade requests as to whether undiagnosed post-traumatic stress disorder (PTSD) or other service-connected psychological disorders contributed to the behavior that resulted in a discharge under other than honorable conditions. b. He served two tours in Vietnam and was honorably discharged for immediate reenlistment. During his second enlistment his performance deteriorated. c. The Army Discharge Review Board (ADRB) mentioned in its brief his extended tour in Vietnam, weariness of overseas duty, and recuperation through unauthorized leaves which led to a court-martial and bad conduct discharge. d. He was clearly suffering from the stress of his wartime experience and he had undiagnosed PTSD. e. He believes his discharge is directly related to PTSD which was undiagnosed at the time. f. In the intervening years, he has been denied service-connected disability compensation because of his discharge. He was approved for healthcare at the Department of Veterans Affairs (VA) and is currently being treated for a variety of medical ailments, including ischemic heart disease and mental health. 3. The applicant provides: * DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending 12 November 1967, 12 June 1970, and 19 June 1972 * DA Forms 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice) * DD Form 458 (Charge Sheet) * orders, dated 19 June 1972 * ADRB Brief, dated 11 July 1973 * letter from a Member of Congress, dated 17 June 2015 * VA medical records 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. The applicant was inducted into the Army of the United States on 20 September 1966. On 12 November 1967, he was honorably discharged for immediate enlistment in the Regular Army. On 13 November 1967, he enlisted in the Regular Army for a period of 3 years. He served 8 months in Vietnam during this period. On 12 June 1970, he was honorably discharged for immediate reenlistment. He reenlisted on 13 June 1970 for a period of 6 years. He served in Vietnam from 13 June 1970 to 15 May 1971. 3. On 14 May 1971, he was convicted by a special court-martial of being absent without leave (AWOL) from 1 December 1970 to 12 March 1971. He was sentenced to forfeiture of $100.00 pay per month for 3 months, confinement at hard labor for 2 months, and reduction to E-1. On 9 June 1971, the convening authority approved the sentence, but suspended confinement at hard labor for a period of 2 months until 14 November 1971. 4. On 9 December 1971, he was convicted by a special court-martial of the following offenses: * being AWOL from 21 June 1971 to 6 August 1971 * being AWOL from 7 August 1971 to 24 August 1971 * escaping from the lawful custody of a noncommissioned officer * writing bad checks (11 specifications totaling $559.00) 5. He was sentenced to confinement at hard labor for 3 months, forfeiture of $127.00 pay per month for 3 months, and a bad conduct discharge. On 25 January 1972, the convening authority approved the sentence. 6. On 17 May 1972, the U.S. Army Court of Military Review affirmed the sentence. 7. On 19 June 1972, the convening authority ordered the bad conduct discharge duly executed. 8. He was issued a bad conduct discharge on 19 June 1972 under the provisions of Army Regulation 635-204 (Personnel Separations – Dishonorable and Bad Conduct Discharge) as a result of court-martial. He completed a total of 4 years, 7 months, and 3 days of creditable active service with 423 days of lost time. 9. There is no evidence of record showing he was diagnosed with PTSD or any mental health condition prior to his discharge. 10. In May 1975, the ADRB denied his request for a discharge upgrade. 11. He provided VA medical records, dated 2007 to 2012, showing his diagnosis of PTSD. 12. An advisory opinion was rendered by the Army Review Boards Agency Clinical Psychiatrist, dated 23 September 2016, wherein she stated: a. A review of the applicant's VA medical records indicates he has been diagnosed with PTSD related to combat service in Vietnam. He is noted to have the following PTSD symptoms: severe nightmares, intrusive memories, avoidant behaviors, flashbacks, hypervigilance, intrusive memories, and a painful affect. He has received both medication and therapy from the VA for treatment of his PTSD. b. There are no military medical records available for review. A review of the applicant's military personnel records indicate there is no documentation of PTSD symptoms or behavioral health symptoms of any kind. There is no indication in his military records that he failed to meet military medical retention standards. c. The lack of documentation of PTSD symptoms in the applicant's military records does not necessarily indicate he did not have PTSD. In the era of his military service, PTSD symptoms were frequently not recognized. Often times in these cases, the presence of PTSD has to be inferred from historical information in the military records. Such is the case with this applicant. His history of good service, which is exemplified by being awarded a Soldier of the Week award and volunteering for a second extended tour of duty in Vietnam, followed by deterioration of his duty performance and being AWOL multiple times is not uncharacteristic of someone who is suffering from undiagnosed PTSD. The VA documentation also supports the applicant's contention that he was suffering from undiagnosed PTSD at the time of his discharge from the Army. d. Based on the information available at this time, there is sufficient evidence to conclude the applicant had undiagnosed PTSD while serving on active duty. Because PTSD can be associated with deterioration of performance and avoidant behaviors such as being AWOL, there is a likely nexus between the applicant's PTSD and the misconduct which led to his separation from the Army. It is her conclusion that the applicant had a mitigating behavioral health condition (PTSD) for the offenses leading to his separation from the military. 13. A copy of this advisory opinion was provided to the applicant for comment and/or rebuttal. On 4 October 2016, he responded by stating he was very happy the medical advisor agreed with him that undiagnosed PTSD was present when he was serving on active duty and contributed to and was associated with his deterioration of performance and avoidant behaviors. REFERENCES: 1. Army Regulation 635-204, in effect at that time, set forth the basic authority for separation of enlisted personnel with dishonorable and bad conduct discharges. Paragraph 1b stated an enlisted person would be separated with a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial imposing a bad conduct discharge. 2. 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. 3. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 4. The Diagnostic and Statistical Manual of Mental Disorders (DSM), chapter 7, addresses trauma and stress or related disorders. The DSM is published by the American Psychiatric Association (APA) and provides standard criteria and common language for classification of mental disorders. In 1980, the APA added PTSD to the third edition of its DSM nosologic classification scheme. Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice. From a 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." 5. 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. 6. The fifth edition of the DSM 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 criterion assesses functioning, and the eighth criterion clarifies symptoms as not attributable to a substance or co-occurring medical condition. 7. 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 Soldiers' 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. 8. 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 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 applicants' service. 9. 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? 10. Although 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 records 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 under other than honorable conditions characterization of service. BCM/NRs will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of under other than honorable conditions. 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. BCM/NRs 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: 1. The evidence of record shows the applicant was issued a bad conduct discharge on 19 June 1972 as a result of a special court-martial for being AWOL, escaping the custody of a noncommissioned officer, and writing 11 bad checks totaling $559.00. 2. The Army Review Boards Agency clinical psychiatrist concluded: * there is sufficient evidence the applicant had undiagnosed PTSD while serving on active duty * there is a likely nexus between the applicant's PTSD and the misconduct which led to his separation from the Army * the applicant had a mitigating behavioral health condition (PTSD) for the offenses leading to his separation from the military 3. While his undiagnosed PTSD may be considered a mitigating factor for his periods of AWOL, PTSD is not a likely cause of premeditated misconduct such as escaping from custody and writing bad checks. 4. His trial by court-martial was warranted by the gravity of the offenses charged. His conviction and discharge were effected in accordance with applicable law and regulations and the discharge appropriately characterizes the misconduct for which he was convicted. 5. His record of service during his last enlistment included two special court-martial convictions for serious offenses (including escaping from custody and writing 11 bad checks) and 423 days of lost time. As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel. His service was insufficiently meritorious to warrant an honorable or a general discharge. 6. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011866 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011866 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2