BOARD DATE: 23 May 2017 DOCKET NUMBER: AR20160019426 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: 23 May 2017 DOCKET NUMBER: AR20160019426 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 to amend the decision of the ABCMR set forth in Docket Number AR20090011474, on 15 December 2009, and Docket Number AR20150005713, on 29 March 2016. ___________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: 23 May 2017 DOCKET NUMBER: AR20160019426 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 reconsideration of his earlier requests for an upgrade of his bad conduct discharge. 2. The applicant states: * he was court-martialed for firing a weapon in the company area and he was discharged with an under other than honorable conditions discharge * he was young, in a war zone, and suffered from post-traumatic stress disorder (PTSD); he coped with it by using drugs * in later years, he received treatment for drug and alcohol abuse and finally realized why what happened in Vietnam happened * PTSD was not talked about back then, or was even known, and now it is time to right the wrong; he also has many ailments and he cannot receive needed treatment and benefits that he fought so hard for * the Senate finally passed a policy wherein discharges may be upgraded for PTSD so veterans may receive benefits 3. The applicant provides Department of Veterans Affairs (VA) progress notes and DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090011474, on 15 December 2009, and Docket Number AR20150005713, on 29 March 2016. 2. Based on the applicant’s claim that he has PTSD, his application is being reviewed under the 2014 Secretary of Defense's guidance to Military Boards for Correction of Military (BCMR)/Naval Records (NR). 3. The applicant was born in June 1949 and he was inducted into the Army of the United States at nearly 20 years of age on 17 April 1969. He completed training and was awarded military occupational specialty (MOS) 94B (Cook). 4. He served in Vietnam from on or about 30 April 1970 to on or about 9 April 1971. He was assigned to 23rd Supply and Transport Battalion. 5. On 7 August 1970, in Vietnam, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 3 to 5 August 1970 and for being apprehended in an off limits area. His punishment consisted of reduction to E-3 and a suspended forfeiture of pay. 6. On 29 August 1970, his commander imposed a Bar to Reenlistment Certificate against him. 7. On 13 November 1970, he was arraigned before a special court-martial in Vietnam, on the following charges: * Charge I, one specification of stealing a stereo, property of an individual, and one specification of stealing a portable TV, property of another individual * Additional Charge I, one specification committing an assault upon D.A.S. by shooting at him with a dangerous weapon (M-16) * Charge II, one specification of wrongfully and willfully discharging a firearm in the company area under circumstances such as to endanger human life 8. The court found him guilty of Charge I and first specification, as well as the additional charge and its specification, and Charge II and its specification. The court sentenced him to a bad conduct discharge, confinement at hard labor for 3 months, forfeiture of $70.00 pay per month for 3 months, and reduction to the lowest enlisted grade. 9. On 7 January 1971, the convening authority approved the sentence and except for the bad conduct discharge, he ordered it executed. The convening authority also ordered the record of trial forwarded to the Judge Advocate General of the Army for review by the U.S. Army Court of Military Review. 10. On an unknown date, the U.S. Army Court of Military Review affirmed the approved finding of guilty and the sentence. As such, on 1 August 1972, Special Court-Martial Order Number 186, issued by Headquarters, U.S. Army Training Center, Fort Dix, NJ, on 1 August 1972, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge executed. 11. The applicant was discharged on 12 October 1972. His DD Form 214 shows he was discharged under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) with an under other than honorable conditions characterization of service and he was issued a Bad Conduct Discharge Certificate. This form further shows he completed 3 years, 2 months, and 25 days of active service during this period, of which 90 days were lost time under Title 10, U.S. Code, section 972. He was awarded or authorized the: * National Defense Service Medal * Vietnam Service Medal * Vietnam Campaign Medal * Marksman Marksmanship Qualification Badge with Rifle Bar 12. On 15 December 2009 and 29 March 2016, the ABCMR denied his petitions for an upgrade of his bad conduct discharge. 13. The applicant provides his VA progress notes. The Case Management Division (CMD) forwarded his medical documents to the Army Review Boards Agency (ARBA) senior medical advisor for review. As a result, the ARBA medical advisor rendered an advisory opinion on 15 March 2017 in the processing of this case. The medical advisor stated: a. No military records from the time of misconduct show him complaining of a mental-health problem. The applicant has approximately 260 VA visits. His problem list includes alcohol dependence, depressive disorder, and obstructive sleep apnea. In all available VA notes, the advisory official could find one note from October 2006 in which an RN used PTSD as a diagnosis, but without an evident basis or diagnostic precedent for it. The advisory official could find no VA note by any other provider or any other visit than this one out of approximately 260 visits for the period 1991 to 2017 that used PTSD as a diagnosis. Unsurprisingly, the advisory official could find no evidence of his being treated for PTSD. He did have visits for depressive disorder and many visits related to diabetes. In all there is insufficient evidence that PTSD or some other mental-health condition, other than substance abuse, had a role in the applicant’s misconduct. Further, even if the applicant had PTSD, it is unexplained how that caused him to steal a peer’s TV set or to open-fire on fellow soldiers in a way that forced the command to send patrols to determine if the enemy was responsible for the event. His drug-induced, on his own account, firing of his M-16 rifle put his fellow Soldiers’ lives on the line. And that is so even if, despite the absence of any reported psychiatric symptoms other than those readily attributable to alcoholism or the use of other drugs, one accepts he had PTSD at the time of his life-endangering behavior. The evidence in the record is most consistent with alcoholism, rather than PTSD, being this applicant’s chief challenge over the course of his life before and after discharge. b. The applicant did meet medical retention standards in accordance with the regulations that were applicable to his era of service. The degree, if any, that the applicant’s mental-health conditions were considered at the time of his discharge from the Army is unknown, though he would have had the opportunity to raise these issues at his special court-martial. A review of available documentation did not discover evidence of a mental-health considerations that bears on the character of the discharge in this case. A nexus between the applicant’s misconduct and his mental health was not discovered. 14. The applicant was provided with a copy of this advisory opinion to give him an opportunity to comment and/or submit a rebuttal. He did not respond. REFERENCES: 1. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. It states in: a. Paragraph 3-7a, 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, 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 3-7c, a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or for the good of service in selected circumstances. d. Paragraph 3-11, a member 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. 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 can occur after someone goes through a traumatic event like combat, assault, or disaster. 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. 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." 4. 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. 5. 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. 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) * Direct exposure * Witnessing, in person * 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 * 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) * Recurrent, involuntary, and intrusive memories * Traumatic nightmares * Dissociative reactions (e.g., flashbacks) which may occur on a continuum from brief episodes to complete loss of consciousness * Intense or prolonged distress after exposure to traumatic reminders * 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) * Trauma-related thoughts or feelings * 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) * Inability to recall key features of the traumatic event (usually dissociative amnesia; not due to head injury, alcohol, or drugs) * Persistent (and often distorted) negative beliefs and expectations about oneself or the world (e.g., "I am bad," "The world is completely dangerous") * Persistent distorted blame of self or others for causing the traumatic event or for resulting consequences * Persistent negative trauma-related emotions (e.g., fear, horror, anger, guilt, or shame) * Markedly diminished interest in (pre-traumatic) significant activities * Feeling alienated from others (e.g., detachment or estrangement) * 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) * Irritable or aggressive behavior * Self-destructive or reckless behavior * Hypervigilance * Exaggerated startle response * Problems in concentration * 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. 6. 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 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. 7. In view of the foregoing, on 3 September 2014 the Secretary of Defense directed the Service 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. 8. 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? 9. 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. 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 under other than honorable conditions 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 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. 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. DISCUSSION: 1. The evidence of record shows the applicant's trial by a special court-martial was warranted by the gravity of the offenses charged. Conviction and discharge were effected in accordance with applicable law and regulations. 2. A thorough medical review revealed that the applicant did meet medical retention standards in accordance with chapter 3, AR 40-501 and AR 635-40 that were applicable to his era of service. The degree, if any, that the applicant’s mental-health conditions were considered at the time of his discharge from the Army is unknown, though he would have had the opportunity to raise these issues at his court-martial. 3. A review of available documentation did not discover evidence of a mental-health considerations that bears on the character of the discharge in this case. A nexus between the applicant’s misconduct and his mental health was not discovered. 4. The applicant was nearly 20 years of age at the time he entered the Army and he was 22 years of age when he committed his offenses. There is no evidence he was any less mature than other Soldier who successfully completed their service or that his offenses of theft and assault were caused by his age. 5. By law, any redress by this Board of the finality of a court-martial conviction is prohibited. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. The evidence shows the court sentenced him to a bad conduct discharge. Additionally, the appellate court affirmed the approved findings of guilty and the sentence. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160019426 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160019426 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2