BOARD DATE: 19 October 2017 DOCKET NUMBER: AR20160003398 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 BOARD DATE: 19 October 2017 DOCKET NUMBER: AR20160003398 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. BOARD DATE: 19 October 2017 DOCKET NUMBER: AR20160003398 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 bad conduct discharge (BCD) be upgraded to an under honorable conditions (general) discharge. 2. The applicant states, in effect, a. He entered the Army on 16 November 2006, and after learning how to drive fuel transportation trucks, he was assigned back to his Army Reserve unit. His military career was going good; however, his home life was not. He was later transferred to active duty. His home life got worse and he failed to seek help. He began to self-medicate, drank heavily, disrespected his superiors, fought with staff, and even attempted suicide. b. He realizes his disrespect, disobedience, and disgrace towards the military and the country was ignorance. He is seeking an upgrade of his discharge in order to procure the necessary medication to cope with his post-traumatic stress disorder (PTSD). He apologizes for his misconduct and is a more responsible person, father, citizen; he is a different person than he was at the time of his discharge. 3. The applicant provides: * a one page typed statement * three pages of medication and a five page chronology of appointments, documenting medical treatment that occurred in the 2010-2011 timeframe * a letter from a Social Work Substance Abuse Counselor, Department of Veterans Affairs (VA), dated 22 April 2011 * VA Certificate of Completion – Chemical Addiction Rehabilitation Program, dated 20 January 2011 with associated documents * VA Certificate of Completion – Seeking Safety Group, dated 27 May 2011 * a letter from the Clinical Social Worker, U.S. Marine Corps (USMC) Base Brig, Camp Lejeune, NC, undated, with an associated document related to PTSD * four character letters of support, dated 13 October 2014, 6 January 2016, 12 January 2016, and 21 January 2016 * six pages of documents titled "Cumberland County Sheriff's Office – Criminal Records Check," dated 29 January 2016 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 enlisted in the United States Army Reserve (USAR) and entered active duty for training on 16 November 2006. After completing his initial entry training, he was awarded military occupational specialty 92F (Petroleum Supply Specialist). He was honorably released from active duty on 1 June 2007, by reason of completion of required active service. 3. The applicant enlisted in the Regular Army on 14 August 2007. 4. A DD Form 2707 (Confinement Order), dated 14 April 2008, indicates the applicant entered into pre-trial confinement at the USMC Base Brig, Camp Lejeune, NC for the following charges related to violations of the Uniform Code of Military Justice (UCMJ): * Article 86, for being absent without leave (AWOL) (two specifications) * Article 91, for being insubordinate in conduct toward a noncommissioned officer (NCO) * Article 92, for disobeying a lawful order * Article 128, for committing assault on law enforcement personnel 5. A DA Form 4430 (Department of the Army – Report of Result of Trial) shows a trial by general court-martial was convened on 25 August 2008 and 5 September 2008, at Fort Bragg, NC, for the purpose of trying the applicant for violations of the UCMJ: a. Article 86 – for being AWOL from on or about 11 April 2008 through on or about 14 April 2008. b. Article 91 – for threatening to assault a commissioned officer, committing assault upon a superior NCO, disrespecting a superior NCO, and disobeying a lawful order from a superior NCO, on 17 March 2008 and 9 April 2008. c. Article 112a – for wrongfully using marijuana and cocaine during the period 5 February 2008 through 13 March 2008. d. Article 117 – for orally communicating provoking speech to his Command Sergeant Major, a superior NCO, on or about 9 April 2008. e. Article 134 – for wrongfully marrying CYH, when, at the time, he was already married to MBC, on or about 7 August 2007. f. His sentence was adjudged on 5 September 2008 and included confinement for 13 months, total forfeiture of all pay and allowances, and to be discharged from the service with a BCD. It further indicates that in a pretrial agreement concerning sentence, the convening authority agreed to disapprove any confinement in excess of 10 months. 6. General Court-Martial Order Number 128 issued by Headquarters, U.S. Army Armor Center and Fort Knox on 23 July 2009, shows the applicant's sentence of a BCD, confinement for 10 months, and forfeiture of all pay and allowances, as promulgated in General Court-Martial Order Number 32, Headquarters, 82nd Airborne Division, Fort Bragg, NC, dated 5 December 2008, was finally affirmed and the BCD was ordered duly executed. 7. The applicant was discharged on 10 September 2009. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 3, as a result of court-martial. It further shows he was given a bad conduct character of service and he was discharge in the rank/grade of private/E-1. His DD Form 214 erroneously reflects an entrance on active duty date of 16 November 2006. 8. The applicant provided the following in support of his request: a. Four character letters of support that acknowledge the applicant is a hard-working individual who is reliable and active in his community. b. Three-pages of medical documentation and a five-page chronology of the medical appointments he attended during the years 2010 and 2011. c. A document titled "Cumberland County Sheriff's Office – Criminal Records Check," which cites four offenses for which he was found guilty: failure to comply with license restrictions, possession of marijuana, operating a vehicle with no insurance, and driving with no registration. d. A letter from a Social Work Substance Abuse Counselor, Department of Veterans Affairs (VA), dated 22 April 2011, which congratulates the applicant on completing the Fayetteville VA Medical Center Chemical Addiction Rehabilitation Program's Intensive Outpatient Treatment Program. Also provided is a VA Certificate of Completion – Chemical Addiction Rehabilitation Program, dated 20 January 2011, with associated documents and a VA certificate of completion for "Seeking Safety Group" dated 27 May 2011. e. A undated letter from the Clinical Social Worker, U.S. Marine Corps Base Brig, Camp Lejeune, NC, with an associated document that indicates the applicant was evaluated while at the USMC Brig for PTSD. He was found to meet the diagnostic criteria for the disorder and treated in a treatment group in the facility and did not receive any medication for the disorder. 9. In connection with the processing of this case, an advisory opinion was obtained on 23 September 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 14 August 2007 and received a BCD on 10 September 2009 in accordance with Army Regulation 635-200, chapter 3 (court-martial, other). b. The applicant requested that the Board upgrade his discharge to general under honorable conditions. The OTSG was asked to determine eligibility for a discharge upgrade based on PTSD or any other behavior health (BH) condition. c. The applicant's record confirms multiple Article 15 infractions, including wrongful use of cocaine and marijuana, disrespect, AWOL, threats of physical harm, and provocative language. During his confinement, he was found to meet criteria for PTSD and participated in a treatment group. No precipitating stressor was identified. In early 2011, he completed both the Intensive Outpatient Program of the Chemical Addiction Rehabilitation Program and the PTSD recovery group at the Fayetteville VA Medical Center. d. Although the medical record indicates he was diagnosed with PTSD while in service, there is no documentation to support a finding that he fell below medical standards at the time of his discharge. 10. The applicant was provided a copy of the advisory opinion on or about 26 September 2016 to afford him the opportunity to respond to its content. He did not respond. REFERENCES: 1. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. It is not an investigative body. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. b. Paragraph 3-11 provides that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 3. 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. 4. 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 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. 8. In view of the foregoing, on 3 September 2014 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 applicant's 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 the 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. a. 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. b. 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. c. 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. 11. The acting Under Secretary of Defense for Personnel and Readiness provided clarifying guidance on 25 August 2017, which expanded the 2014 Secretary of Defense memorandum, that directed the BCM/NRs and DRBs to give liberal consideration to veterans looking to upgrade their less-than-honorable discharges by expanding review of discharges involving diagnosed, undiagnosed, or misdiagnosed mental health conditions, including PTSD; traumatic brain injury; or who reported sexual assault or sexual harassment. DISCUSSION: 1. The applicant requests an upgrade of his BCD. 2. The evidence of record shows he was tried and convicted by a general court-martial for AWOL, assault (two specifications), disrespectful language, provoking speech, wrongful use of marijuana (two specifications), and wrongful use of cocaine, violating multiple articles of the UCMJ. There is no evidence that his misconduct, to which he admitted and pled guilty, resulted from any reason except the choices he made. 3. The applicant was discharged with a BCD on 10 September 2009, pursuant to an approved sentence of a general court-martial that was warranted by the gravity of the offenses charged at the time. His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted. The appellate review was completed and the affirmed sentence ordered duly executed. All requirements of law and regulation were met and his rights were fully protected. 4. During his confinement, he was found to meet criteria for PTSD and he participated in a treatment group; however, no precipitating stressor or reason was identified. Additionally, he completed treatment for chemical addition and PTSD at a VA medical center. The applicant now wishes to have his BCD upgraded in order to receive medication for his diagnosed PTSD. 5. The Chief, Behavioral Health Division, OTSG found, in effect, that the applicant was diagnosed with PTSD while in confinement; however, no stressor or reason was identified. Also there was no documentation to support a finding that he fell below medical standards at the time of his discharge or that there was a nexus between a possible behavioral health condition and his discharge. 6. Any redress by this Board of the finality of a court-martial conviction is prohibited by law, meaning the Board does not have the authority to expunge the general court-martial conviction. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence 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) AR20160003398 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003398 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2