BOARD DATE: 22 December 2016 DOCKET NUMBER: AR20160005679 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: 22 December 2016 DOCKET NUMBER: AR20160005679 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: 22 December 2016 DOCKET NUMBER: AR20160005679 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, the sister of the deceased former service member (FSM), requests the FSM's application for upgrade of his dishonorable discharge be processed to conclusion. 2. The applicant states the FSM died on 16 September 2016. He submitted the application in an effort to gain eligibility for treatment of his post-traumatic stress disorder (PTSD) by the Department of Veterans Affairs (VA). a. The FSM provided a self-authored statement in which he noted that he had no record of nonjudicial punishment (NJP) or courts-martial prior to the incident that led to his discharge. b. The FSM stated that he performed his military duties to the best of his ability. During his military service he deployed three times. While he was deployed to Honduras, a C-130 aircraft was shot down. He volunteered to help recover the remains of the passengers and crew that had washed up on the beach. He had known some of those who were onboard the aircraft and whose remains washed up on the beach. This made his follow-on tour to Honduras very difficult. 3. The FSM provided copies of public safety records pertaining to his background, medical records, and character reference letters. The applicant provided a copy of the FSM's death certificate. CONSIDERATION OF EVIDENCE: 1. The FSM enlisted in the Regular Army on 7 December 1983 for a period of 3 years. He was awarded military occupational specialty 67N (Utility Helicopter Repairer) 2. A review of the FSM's DA Form 2-1 (Personnel Qualification Record), in pertinent part, shows in: * item 5 (Oversea Service), no entries (is blank) * item 18 ( Appointments and Reductions): specialist four (E-4), 1 March 1986 * item 35 (Record of Assignments): Headquarters and Headquarters Company, 1st Aviation, Fort Riley, KS, effective 5 June 1984 3. An SF (Standard Form) 88 (Report of Medical Examination) was prepared by the examining physician on 23 April 1986 to document the FSM's Class 3 (Return to Flight Status) physical examination. It shows, in pertinent part, a waiver for audiology (hearing) was required and that the FSM was found not qualified to return to flight status. A further review of the document failed to show the FSM had sustained a traumatic injury as a result of a gunshot wound. 4. Headquarters, 1st Infantry Division (Mechanized), Fort Riley, KS, General Court-Martial (GCM) Order Number 10, dated 30 March 1987, shows the FSM was tried by a GCM. a. He pled guilty to and was found guilty of violation of the Uniform Code of Military Justice (UCMJ): * Article 112a, two specifications, for – * on 18 September 1986, wrongfully distributing 31.30 grams, more or less, of marijuana * on 18 September 1986, wrongfully possessing 17.78 grams, more or less, of marijuana, with intent to distribute b. On 22 January 1987, he was sentenced to forfeiture of all pay and allowances, reduction to the grade of private (E-1), confinement for 2 years, and a dishonorable discharge. c. On 30 March 1987, the GCM Convening Authority approved the sentence, except for the dishonorable discharge, and ordered it executed, but the execution of that part of the sentence adjudging confinement in excess of one (1) year was suspended for one (1) year, at which time, unless the suspension was sooner vacated, the suspended part of the sentence was to be remitted without further action. 5. The U.S. Army Court of Military Review (CMR) reviewed the FSM's case. a. The CMR considered the entire record, including the issue personally raised by the FSM. b. On 27 July 1987, the CMR affirmed that the findings of guilty and the approved sentence were correct in law and fact. 6. Headquarters, U.S. Army Correctional Activity, Fort Riley, KS, GCM Order Number 780, dated 3 December 1987, confirmed that the FSM's court-martial sentence was affirmed. That portion of the sentence pertaining to confinement having been served and the provisions of Article 71(c) having been complied with, the sentence was ordered duly executed. 7. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the FSM entered active duty on 7 December 1983 and was separated on 13 December 1987 with a dishonorable discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, section IV, as a result of court-martial. He had completed 3 years, 3 months, and 6 days of net active service this period. It also shows in item 29 (Dates of Time Lost During This Period): 22 January 1987 – 21 October 1987. 8. The following documents were provided in support of the application. a. Three medical records, as follows: (1) Acadia-Abilene Behavioral Health (BH), Psychiatric Evaluation, that shows, on 12 September 2013, a psychiatrist evaluated the FSM and noted: * Final Diagnoses – * Axis I: * Major depressive disorder without psychotic features * PTSD * Axis II: No diagnosis * Axis III: No diagnosis * Axis IV: job-related (recently lost job) * Axis V: GAF (Global Assessment of Functioning) Current: 60 (2) Central Texas Mental Health Mental Retardation Center, Diagnostic Review, that shows, on 5 October 2015, a physician evaluated the FSM and noted: * Diagnoses – * Axis I: * Major depressive disorder, recurrent * PTSD, unspecified * Axis II: Encounter for observation for other suspected disorders * Axis III: Person with feared health complaint in… * Axis IV: Other problems related to employment * Axis V: GAF Current: 61 (3) Center for Life Resources, Coleman, TX, Medical Evaluation, that shows a Licensed Professional Counselor, evaluated the FSM, on 14 December 2015, and noted: (a) The FSM had been being seen since 27 November 2013 and receiving treatment for major depressive disorder (recurrent severe) and PTSD. (b) It shows the FSM claimed he participated in a classified mission that resulted in him accidentally killing two non-combatant children, which was the basis for his PTSD. Also, during one classified mission "he was shot and he continue[d] to carry the slug" with him." (c) Based on a Clinician Administered PTSD Scale and mental status examination, the FSM was found to meet the criterion for PTSD at the severe, markedly elevated level. b. Five letters/documents from judicial and law enforcement officials (Coleman, TX) that show the FSM had no criminal record other than one misdemeanor for the offense of driving while intoxicated on 6 May 1989. c. Six character reference letters (from Mr. JDL, Attorney at Law; Ms. RW, friend; Ms. SE and Ms. TL, co-workers; Mr. JB, Deputy Sheriff, Coleman County, TX; and DRW, Elder of Coleman Church of Christ). They attested to the FSM being a law-abiding citizen and of good personal character. The attorney noted the FSM was physically unable to work at the Coleman Livestock Auction Barn. 9. In the processing of this case, an advisory opinion was obtained from the Chief, BH Division, Health Care Delivery, U.S. Army Medical Command G-3/5/7, Office of The Surgeon General (OTSG), Falls Church, VA. a. The medical advisor stated the Army Board for Correction of Military Records (ABCMR) requested a determination as to whether the FSM's separation was due to PTSD. The advisory opinion is based solely on the information provided by the ABCMR as the Department of Defense electronic medical record was not in use at the time of the FSM's service. b. The advisory official noted the FSM began experiencing symptoms of PTSD in November 2013 and since that time had been hospitalized or in crisis respite eight times. He was discharged with diagnoses of major depressive disorder, recurrent, and PTSD. A letter from his BH provider, dated 14 December 2015, confirms that he met criteria for PTSD with delayed expression, by establishing the precipitating stressor and describing his symptoms in detail. The BH provider also noted that the FSM was unable to work due to mood swings and the inability to get restful sleep. c. The advisory official also stated, "Records confirm that [the FSM] had no court-martial convictions or instances of NJP prior to his conviction for possession with intent to distribute marijuana. Against this backdrop, it is more likely than not that his drug abuse and subsequent PTSD diagnosis are strong indicators that he was experiencing PTSD symptoms at the time of his separation and that these symptoms mitigated the conduct that led to his discharge." 10. On 28 September 2016, the applicant was provided a copy of the OTSG advisory opinion to allow the opportunity to submit comments or a rebuttal. 11. On 3 October 2016, the FSM's sister advised the Board that the FSM had passed away on 16 September 2016. She asked the Board to continue processing the FSM's application based on the evidence previously provided. REFERENCES: 1. 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 under other than honorable conditions (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 FSM's service. 2. 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." 3. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 3 (Character of Service/Description of Service) prescribes the policies and procedures for separating members with a bad conduct discharge. It stipulates that 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. b. Chapter 3, 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. c. Chapter 3, 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. 4. 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 evidence of record shows the Secretary of Defense's memorandum of 3 September 2014 instructs military corrections boards to liberally consider PTSD. a. The evidence or record shows the policy memorandum applies to those Soldiers who were administratively discharged UOTHC. The FSM was not administratively discharged; he was discharged as a result of court-martial with a dishonorable discharge. b. In that the FSM (and the applicant) do not seek to upgrade an UOTHC administrative discharge, the Secretary of Defense's, 3 September 2014, memorandum is not controlling in this case. 2. The FSM was convicted by GCM of wrongfully possessing marijuana with intent to distribute and wrongfully distributing marijuana. a. There is no evidence of record that shows the FSM deployed to Honduras. b. There are no medical records or other documentary evidence of record that shows he sustained a gunshot wound. c. The OTSG advisory official stated, "Records confirm that [the FSM] had no court-martial convictions or instances of NJP prior to his conviction for possession with intent to distribute marijuana. Against this backdrop, it is more likely than not that his drug abuse and subsequent PTSD diagnosis are strong indicators that he was experiencing PTSD symptoms at the time of his separation and that these symptoms mitigated the conduct that led to his discharge." However, there is no evidence of record and the documentary evidence provided by the FSM (including background records, medical records, and character reference letters) fails to show the FSM had a drug abuse problem during the period of service under review. In fact, there is no evidence of record that shows he had a drug abuse problem subsequent to his discharge. 3. The FSM's trial by general 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 FSM's rights were protected throughout the court-martial process, including the appellate review. 4. The FSM's post-service conduct was considered. However, post-service conduct alone is not a basis for upgrading a dishonorable discharge. 5. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. By law, this 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005679 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160005679 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2