BOARD DATE: 6 February 2018 DOCKET NUMBER: AR20170015770 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Numbers AC93-13741, on 2 February 1994, and AR20130013383, on 20 March 2014. 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: 6 February 2018 DOCKET NUMBER: AR20170015770 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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: 6 February 2018 DOCKET NUMBER: AR20170015770 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 request for an upgrade of his under other than honorable conditions discharge to general under honorable conditions. He also requests personal appearance before the Board. 2. The applicant states for the reasons set forth in the materials provided by his counsel; the applicant asserts his discharge was unjust and in error. a. He contends no consideration was given to the fact he was suffering from undiagnosed and untreated post-traumatic stress disorder (PTSD); his condition led to the misconduct that resulted in his discharge. He did not realize he was suffering from PTSD, and that his Vietnam service was its cause, until he began seeing a therapist in 2015. b. He provides a personal statement: (1) The applicant describes his personal history; he speaks about his family and some of his experiences growing up. (2) He details his military history and states he saw "dead bodies stacked up the day [he] arrived." The base where he was stationed endured almost daily mortar and rocket attacks, and he witnessed his fellow Soldiers dying. He notes the fact his brother was also serving in Vietnam at the same time did not help, and claims his brother also suffered a mental breakdown due to his Vietnam service, for which now he receives a 100 percent service-connected disability. (3) The applicant states, after about a month of intense pressure, he began to suffer such PTSD symptoms as headaches, nightmares, and sleeplessness; illegal drugs were cheap and readily available, so he used them to find refuge. In late March 1969, he was medically evacuated to Japan because of an infectious hepatitis diagnosis. His headaches continued during treatment and his addiction grew worse; he never received any treatment for his addiction, nor were his PTSD symptoms addressed. He departed in an absent without leave (AWOL) status while in Japan and, on his return, accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ). (4) In June 1969, he was medically evacuated to Fort Dix, NJ, and went AWOL again to look for drugs; he was arrested and convicted for attempted robbery in New York City. In March 1970, a summary court-martial at Fort Dix convicted him for being AWOL from 6 December 1969 to 3 March 1970; he was subsequently administratively separated due to his civilian conviction. (5) Over the next 40 years, he was not strong enough to shake his addiction; he continued to commit crimes that were driven by his need for drugs. He spent 34 years in prison; most recently he was serving a 25-year-to-life prison term. He was released on parole in 2013 after serving the minimum sentence. He describes, after his release, how he lived in non-profit housing, moved to transitional housing, and then was hired by the non-profit organization to manage one of the residences. (6) The applicant speaks of his relationship with his daughter, his grandchildren, and his daughter's mother. (7) He states he previously requested relief from the Board, but, at that time, he did not have professional help; his request was submitted before he started therapy and received a PTSD diagnosis. He contends the reason he is submitting his current application is because a change in his character of service would be a recognition of the impact a horrible war had on a "19-year-old kid, suffering from a condition that was not recognized until many years later" and played a significant role in the way his life turned out. c. He defers the remainder of his arguments and evidence to counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests: a. Prior to a decision being made, and in accordance with the below listed citations, counsel requests all regulations; case summaries, staff briefs or memoranda; advisory opinions from any source; military or civilian investigation reports; and any other documents being considered in the applicant's discharge review. The references are as follows: * Department of Defense Instruction (DODI) 1332.28 (Discharge Review Board Procedures and Standards), paragraph E3.2.9.4.1 (Availability of Records and Documents) * Freedom of Information Action (Title 5, U.S. Code, section 552) * the Privacy Act, (Title 5, U.S. Code, section 552a) (DODI 1332.28 does not apply to the Army Board for Correction of Military Records (ABCMR); only to DRBs, (e.g., the Army Discharge Review Board (ADRB)). The applicable legal reference for the ABCMR is Title 10, U.S. Code, section 1556 (Ex Parte Communications Prohibited)) (E3.2.9.4.1. states, "in any case heard on request of an applicant, the DRB shall provide the applicant, at a reasonable time before initiating the decision process, a notice of the availability of all regulations and documents to be considered in the discharge review, except for documents in the official personnel or medical records and any documents submitted by the applicant. The DRB shall notify the applicant of the right to examine such documents or to be provided with copies of the documents upon request; of the date by which such requests must be received; and of the opportunity to respond within a reasonable period of time to be set by the DRB.") (Title 10, U.S. Code, section 1556, requires the ABCMR to provide a copy of all correspondence and communications (including summaries of verbal communications) between the Board (or staff) and an entity or person outside the ABCMR. Such communications can include advisory opinions and investigative reports. Among the exceptions are any records already provided to or known by the applicant, any classified information, and/or communications of a purely administrative nature.) b. In effect, because the applicant has been diagnosed with PTSD due to his combat service, counsel requests a physician, clinical psychologist, or psychiatrist be included as a member of the board that reviews his application for relief. Counsel references Title 10, U.S. Code, section 1553(d)(1), as the basis of his request. (Title 10, U.S. Code, section 1552 (Correction of Military Records, Claims Incident Thereto) is the provision of Federal law governing the ABCMR. Title 10, U.S. Code, section 1553 (Review of Discharge or Dismissal) applies only to the ADRB. Subparagraph d(1) of section 1553 requires a physician, clinical psychologist, or psychiatrist to be included as members of the ADRB when cases are being considered for former Soldiers who, while serving on active duty, were deployed and subsequently diagnosed by a physician, clinical psychologist, or psychiatrist as experiencing PTSD or traumatic brain injury (TBI) as a consequence of that deployment.) 2. Counsel states: a. The applicant's story is one of a promising young man whose life, at age 19, was derailed by the horrors he experienced while serving in Vietnam; only now, after nearly half a century, is he beginning his recovery. (1) He joined the Army in March 1968 and was assigned to Vietnam after completing basic and military occupational specialty (MOS) training. Almost immediately he was exposed to intense mortar and rocket fire; he saw his buddies wounded or killed. (2) He began to suffer from what is now known as PTSD, and he sought refuge from his nightmares in cheap, plentiful, and easily available heroin. His heroin use began a downward spiral that led to serious illness and a civilian conviction, which resulted in his March 1971 under other than honorable conditions discharge. (3) After his discharge, he descended into a life of addiction-fueled crime and was incarcerated numerous times. He began to seek treatment shortly after his release on parole in 2013 and, for the first time, learned about his Vietnam-related PTSD, as well as its effects on his behavior. Since his release, he has been employed as a house manager for homeless Veterans and has served as a peer-to-peer counselor and motivational speaker. (4) Counsel contends this is not about fault. PTSD was not understood until many years after the applicant's return from Vietnam. Counsel notes the applicant takes responsibility for his conduct, but this is about the tragedy resulting from the needless loss of so many years. Had the Army diagnosed and properly treated the applicant while he was still on active duty, the treatment could have restored him as an effective Soldier and productive member of his community. The applicant is, in a very real sense, a casualty of war. b. Facts: (1) The applicant was drafted into the Army at age 18; his pre-Vietnam service was unremarkable. As stated above, his exposure to combat and the resulting PTSD caused him to self-medicate with heroin; he ultimately was discharged under other than honorable conditions. (2) This petition seeks reconsideration of previous ABCMR decisions, and is based primarily on newly discovered evidence showing the applicant suffered from undiagnosed PTSD, and that there was, and continues to be, a direct causal connection between his PTSD and his drug use. (3) Counsel includes what he asserts to be a "most revealing" report, dated 24 April 1969, wherein Major HJS, Medical Corps, details the applicant's late March 1969 hospitalization in Vietnam; this was not included with the applicant's earlier petitions. Although PTSD was not yet recognized, the report contains unmistakable proof that the applicant suffered from this disorder. Counsel enumerates symptoms he contends clearly show PTSD symptoms. (4) Also not previously considered is an update to the applicant's life following his 2013 release from prison. He has been in regular PTSD treatment with the Department of Veterans Affairs (VA) and has successfully completed a rigorous 2-year outpatient drug rehabilitation program. Following his release, the applicant lived in non-profit Veterans' housing, where he was an "exemplary resident." The non-profit organization hired him as a full-time manager for one of the residences and he continues his employment in that position. In addition, the applicant regularly volunteers to speak to youth groups and at-risk students. c. Argument and conclusion. (1) The previous decisions by the Board should be reconsidered due to the newly discovered evidence showing a direct causal link between the PTSD and his drug use. The applicant's PTSD entitles him to both special and liberal consideration (citing the September 2014 guidance from the former Secretary of Defense). (2) In addition, his earlier petitions were prepared without professional help; because of this, the Board was not apprised of key evidence. (3) The Board should also consider the applicant's exemplary behavior since his release from prison in 2013. (4) In conclusion, the applicant is truly a casualty of war; had he been properly diagnosed and treated, his life would have taken a very different trajectory. The applicant now understands the impact of PTSD and continues to work on his recovery. 3. Counsel provides: * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 11 March 1968 * ABCMR Docket Number AR20130013383 Record of Proceedings (ROP) and associated documents * Vet Center Treatment Summary Update, dated 24 April 2017 * Columbia University School of Nursing letter, dated 23 January 2017 * Standard Form (SF) 502, dated 31 March 1969 * four letters of support, dated between 1 December 2016 and 25 January 2017 * New York State Corrections and Community Service letter, dated 2 May 2017 CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Numbers AC93-13741, on 2 February 1994, and AR20130013383, on 20 March 2014. 2. The applicant submitted his initial petition on 11 July 1993, and a request for reconsideration on 15 July 2013. His current request provides new evidence and arguments; as such, his request warrants consideration by the Board. 3. The applicant was inducted into the Army of the United States on 11 March1968. He held MOS 94B (Cook). 4. He served in Vietnam from 5 March 1969 to 17 June 1969. While in Vietnam, he was medically evacuated to Japan because he had contracted hepatitis. 5. While assigned in Japan for medical treatment, he accepted NJP due to having been AWOL from 30 April to 1 May 1969. 6. He was transferred to Fort Dix, NJ and, while there, was convicted by a summary court-martial on 19 March 1970 for one specification of AWOL from 6 December 1969 to 3 March 1970. 7. On 5 April 1970, he was arrested in New York City for robbery and possession of a dangerous weapon. On 23 April 1970, he was sentenced to 1 year in a correctional institute, effective 30 September 1970. 8. A letter, dated 12 November 1970, sent by the City of New York, Department of Correction, advised the applicant's commander that the applicant had been convicted of attempted robbery, 3rd degree and the court sentenced him to serve a prison sentence. He was scheduled for release on 19 February 1971. 9. On 5 January 1971, the applicant’s Fort Dix commander notified the applicant in writing he was being considered for separation under the provisions of Army Regulation (AR) 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion)) based on his civil court conviction. 10. The applicant acknowledged receipt of the notification on 8 January 1971 and submitted the following: a. He indicated he: * waived consideration of his case before a board of officers * would not submit statements on his own behalf * was currently being held in civil confinement * did not intend to appeal his civil conviction b. He understood he could encounter substantial prejudice in civilian life in the event an undesirable or general discharge under honorable conditions were issued, and that an undesirable discharge could make him ineligible for many or all benefits available to Veterans under Federal and/or State law. 11. On 25 February 1971, the separation authority approved the commander's recommendation for discharge and directed the applicant be furnished an Undesirable Discharge Certificate (with an under other than honorable conditions character of service). The applicant was discharged accordingly on 16 March 1971. 12. His DD Form 214 shows he completed 1 year, 9 months, and 16 days of net active creditable service, with 446 days of lost time. He was awarded or authorized the National Defense Service Medal and the Vietnam Service Medal. The authority for separation was AR 635-206 and his character of service was under other than honorable conditions. 13. The ADRB denied his requests for an upgrade of his character of service first on 4 June 1974 and again on 27 December 1985. 14. The ABCMR denied his character of service upgrade requests on 2 February 1994 and 20 March 2014. 15. The applicant and counsel provide: a. Two letters of support, one undated and the other dated 1 December 2016, which affirm the applicant has exceptional communication and managerial skills, and has proven himself to be an upstanding, law-abiding citizen who attends weekly Bible study and local Christian meetings. The applicant has demonstrated he wishes to make the most of life by working, learning, caring for the needs of his elderly parents, and participating in meaningful relationships. b. Letter, dated 15 December 2016, showing the signatures of persons identified as primary counselor and program coordinator, states, in effect, the applicant successfully completed an outpatient drug and alcohol rehabilitation program, and his case was favorably closed on 11 January 2016. c. Letter, dated 25 January 2017, that essentially states the applicant volunteered at his local community college to speak to college student in an approved education series dealing with alcohol and substance abuse. The class in which he participated is a community service open to young adults. d. Letter, dated 2 May 2017, from a probation officer, New York State Corrections and Community Supervision, who states the applicant was paroled on 11 June 2013 with a maximum expiration of "life." He reports as directed on a monthly basis, has tested negative for drug use, and completed a drug and alcohol treatment program. 16. On 8 November 2017, an Army Review Boards Agency (ARBA) psychologist provided a medical advisory opinion. a. The Case Management Division (CMD), ARBA, requested a review of the applicant's case to determine if his medical conditions were considered during separation processing. b. A brief summary was provided of the applicant's military service. c. Following a review of all available medical records, the ARBA psychologist determined the following: (1) The available record did not reasonably support the presence of PTSD or other behavioral health condition warranting separation through medical channels. However, in applying the policy of liberal consideration, the ARBA psychologist noted the applicant's post-service diagnosis for PTSD from the time of his Vietnam service and onwards. There is also evidence he sustained a TBI but his records show he never reached a point, during his active service, where he failed medical retention standards for either behavioral health or TBI-related conditions. (2) Both PTSD and TBI are presumed to have been present at the time he committed the misconduct that ultimately led to his adverse discharge. His medical conditions would mitigate his periods of AWOL, but not the offenses of robbery and the possession of a dangerous weapon. Robbery is the type of serious crime that PTSD does not mitigate. 17. On 14 November 2017, CMD provided counsel and the applicant a copy of the ARBA medical advisory for review and comment. On 12 December 2017, counsel submitted the following in response: a. The brief summary in the advisory misstated the applicant's military service. In addition, the advisory opinion notes the applicant's earlier petitions did not include any medical reports of psychological symptoms, a fact counsel had already addressed. (1) Counsel went on to contend the ARBA psychologist was incorrect in stating neither the applicant nor counsel had established when the applicant's PTSD began; clearly it started while the applicant was in Vietnam, and counsel cited two substantiating reports. (2) Counsel then acknowledged the advisory opinion had conceded liberal consideration should be given for PTSD. Additionally, the advisory opinion indicated that TBI and PTSD were presumed to have been incurred during the applicant's active service, and present when he committed the misconduct that led to his adverse discharge. b. Counsel asserts, if the applicant's Vietnam and post-Vietnam experience had occurred today, the outcome would likely have been dramatically different. The horrors of war and easy access to drugs transformed the applicant into a drug addict who spent nearly half of his life in prison. c. The applicant accepts responsibility for his conduct and is doing his best to atone for what he had done. REFERENCES: 1. AR 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel for misconduct. Section VI of the regulation provided for the separation of personnel for conviction by civil court, where the action taken against a Soldier was tantamount to a finding of guilty for an offense under the UCMJ for which the maximum punishment was either death or confinement in excess of 1 year. An undesirable discharge with an under other than honorable conditions character of service was normally considered appropriate. 2. New York Penal Law 160.05 defines robbery in the third degree as forcibly stealing property. Because this offense is categorized as a "Class D Felony" (indicating a violent crime), the available sentence is up to 7 years in prison. 3. The Manual for Courts-Martial, in effect at the time, showed the maximum punishment for the offense of robbery was a dishonorable discharge and 10 years confinement at hard labor. 4. AR 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, provided policy and procedures for the separation of enlisted personnel. a. Paragraph 1-9d stated an honorable discharge was a separation with honor, and would be conditioned upon proper military behavior and proficient performance of duty. Due consideration was to be given to the Soldier's age, length of service, grade, and general aptitude. Where there had been disciplinary infractions, the extent would be considered, as well as the seriousness of the offense(s). The governing factor was to be the pattern of behavior, not isolated instances. Additionally, an authorized commander could character the Soldier's service as honorable when following were considered: * conduct ratings of at least "Good"; efficiency ratings of a minimum of "Fair" * no general court-martial convictions; not more than one special court-martial conviction; careful consideration was to be given to the nature of the offense(s), the sentence adjudged, and character of the remainder of the Soldier's service b. Paragraph 1-9e stated a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 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 he or she has been exposed to an event that is considered traumatic. a. Clinical experience with the PTSD diagnosis has shown 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. b. 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 Revision of DSM-5 was released in May 2013. This updated edition included 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) (1) Direct exposure. (2) Witnessing, in person. (3) 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. (4) 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. 7. 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 applications from former service members administratively discharged under other than honorable conditions, and who had since been diagnosed with PTSD by a competent mental health professional. The Boards were to determine if it would be appropriate to upgrade the characterization of an applicant's service, due to revised PTSD criteria, detailed medical considerations, and mitigating factors. 8. BCM/NRs are not courts, nor are they investigative agencies. Therefore, the determinations should 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, or other behavioral health issue(s), was the causative factor for misconduct, and whether an upgrade is warranted, the following factors should be carefully considered: * was it reasonable to determine that PTSD or other behavioral health conditions existed at the time of discharge? * did the record contain documentation of the occurrence of a traumatic event during the period of service? * did the military record contain documentation of a diagnosis of PTSD or other behavioral health symptoms? * did the applicant provide documentation of a diagnosis of PTSD or behavioral health 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 have been incurred during, or aggravated by military service? * did 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/FSM's misconduct premeditated? * how serious was the misconduct? 9. Although the Department of Defense acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had an undiagnosed condition of PTSD, or other behavioral health condition, 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 be reasonably determined to have existed at the time of discharge will be considered to have been present at separation. In cases in which PTSD or other behavioral health 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. b. Corrections Boards must 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 other behavioral health 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. 10. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense's Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole, or in part, to: mental health conditions, including PTSD; TBI; sexual assault; sexual harassment. Boards were directed to give liberal consideration to Veterans petitioning for discharge relief when the application for relief was based in whole or in part on those conditions or experiences. The guidance further described evidence sources and criteria, and required Boards to consider the conditions or experiences presented in evidence as potential mitigation for that misconduct which led to the discharge. 11. AR 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. It states further, in paragraph 2-11, that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. By regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record, including independent evidence he provided, is sufficient to render a fair and equitable decision at this time. 2. Counsel makes two requests that cite legal and regulatory guidance not relevant to the ABCMR. a. Concerning counsel's request for all regulations; case summaries, staff briefs, or memoranda; advisory opinions from any source; military or civilian investigation reports; and any other documents being considered in the applicant's discharge review (per DODI 1332.28): * ABCMR is governed by Title 10, U.S. Code, section 1556, which requires the Board to provide copies of all correspondence and communications (including summaries of verbal communications) between the Board (or staff) and outside entities or persons * although this case required a medical advisory opinion, the opinion was rendered by a psychologist assigned to ARBA (the higher headquarters of the ABCMR) * as required, a copy of the advisory opinion was provided to the applicant and counsel for review and comment * all other references and regulations associated with this ROP were either previously cited or were available to the applicant and/or counsel at the time they were in effect * no staff briefs or case summaries were prepared as part of the preparation required for the ABCMR to review this case b. As to counsel's request to have a physician, clinical psychologist, or psychiatrist be included as a member of the board, this requirement, by law, exclusively applies to the ADRB. Although the Board's membership does not include the aforementioned medical and/or behavioral health professionals, it has been provided the above-mentioned medical advisory opinion, which serves as additional evidence for the Board's consideration. 3. The applicant was convicted in a civil court of a violent crime (i.e., attempted robbery in the third degree, a Class D violent felony under New York State law). Because he was convicted of an offense that, under the UCMJ, had a maximum punishment in excess of 1 year, the applicant's chain of command initiated separation action under AR 635-206. The evidence of record appears to show all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. In addition, the characterization of service he received appears to have been commensurate with the reason for his discharge. 4. Counsel argues, in effect, the applicant's character of service should be upgraded due to his PTSD and TBI diagnoses. He references DOD guidance, specifically asserting the Board is empowered to apply liberal consideration when reaching its determination. a. An ARBA psychologist reviewed the applicant's available medical records and found, although he can be presumed to have had undiagnosed PTSD and TBI during his active service, these conditions were only partially mitigating in that a causal connection can be drawn with the applicant's periods of AWOL. b. The basis for his adverse separation, however, were not his AWOLs, but rather his civil conviction for a violent form of attempted robbery. c. While the Board is has been asked to apply liberal consideration in cases like this, the Board is also charged with assessing the seriousness of the misconduct. The ARBA psychologist noted robbery is the type of serious crime not mitigated by PTSD. 5. Counsel further asks the Board to consider the applicant's post-service contributions, specifically how, after his release from prison, he has turned his life around. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170015770 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170015770 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2