IN THE CASE OF: BOARD DATE: 11 August 2016 DOCKET NUMBER: AR20150003032 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 11 August 2016 DOCKET NUMBER: AR20150003032 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _____________x____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. IN THE CASE OF: BOARD DATE: 11 August 2016 DOCKET NUMBER: AR20150003032 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests an upgrade of his under other than honorable conditions (UOTHC) discharge to either a general discharge (GD) or an honorable discharge (HD). 2. He states, in effect, he is currently rated 50% disabled due to service connected post-traumatic stress disorder (PTSD), which is what caused the episode for which he was discharged. He states he was charged with possessing and selling heroin. While on a 3-day unit stand-down in Vietnam, he and his buddies pooled their money to buy heroin and he took the money to make the purchase. He likened it to a beer run. He was charged with possessing and selling heroin. However, he was not selling heroin, just bringing it back. He was told by the Judge Advocate General's (JAG) Corps officer that he could get 20 years in prison as a result of a court-martial or he could request a discharge in lieu of trail by court-martial. He states he has been free of drugs and alcohol since 1999. He has 5 children and 12 grandchildren and he needed to change his ways to be a better father and grandfather. He regrets what he did in Vietnam. He was a good Soldier, and this was the only bad mark on his record. 3. He provides: * self-authored letter addressing the events that led to his discharge * 15 letters attesting to his good post-service conduct 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 Regular Army on 10 March 1971 for 2 years. After completing basic training and advanced individual training he was awarded military occupational specialty 11B10 (light weapons infantryman). The highest rank that he held was private first class (PFC)/E-3. 3. He arrived in Vietnam on or about 26 August 1971 and he was assigned to Company B, 1st Battalion, 25th Infantry, 11th Brigade, on 29 August 1971. On 5 October 1971, he was reassigned to Company B, 3rd Battalion, 21st Infantry, 196th Brigade. 4. On 13 November 1971, the applicant was charged with having in his possession 14 vials of heroin and wrongfully selling heroin, both violations of Article 134 of the Uniform Code of Military Justice that occurred on 9 November 1971. 5. A Report of Mental Status Evaluation, undated but which appears to have been completed in Vietnam, shows the applicant’s behavior was normal, his mood was level, his thinking process was clear, his thought content was normal, and his memory was good. He had no significant mental illness, was mentally responsible, and able to distinguish between right and wrong and adhere to the right. 6. On 19 November 1971, the applicant requested discharge for the good of the service in lieu of trail by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He acknowledged that he understood his request could result in an undesirable discharge. The applicant also acknowledged that he had been counseled by a JAG officer concerning his request. 7. On 12 January 1972, the Commanding General, 196th Infantry Brigade, approved the applicant’s request for discharge and directed his reduction to the lowest enlisted grade, and the issuance of an undesirable discharge. The applicant was discharged on 8 February 1972. 8. The applicant’s medical history and examination documents, dated 18 January 1972, show that he indicated he had a history of a number of medical conditions, to include depression and excess worry. The medical examination shows the applicant was fit for retention. 9. On 14 February 1972, the applicant applied to the Army Discharge Review Board (ADRB) for a personal appearance and an upgrade of his discharge to a GD. The personal appearance board was held on 19 April 1973 in the Pentagon. After reviewing the applicant’s military records, listening to his testimony, and having him answer questions from the board members, the ADRB determined the applicant had been properly assigned a UOTHC characterization of service and denied the applicant’s request. 10. On 22 November 1977, the applicant’s discharge was again reviewed by the ADRB under the Special Discharge Review Program. After a careful review of the applicant’s military records, the ADRB determined that the applicant was properly and equitably discharged with an UOTHC characterization of service. The applicant was notified of this decision by a letter dated 22 February 1978. 11. There are no service or post-service medical records available that show the applicant had PTSD during his period of service. 12. On 24 March 2015, the Case Management Division, Army Review Boards Agency, asked the applicant to provide medical documents supporting his claim that he has been diagnosed with PTSD. He did not respond. REFERENCES: 1. The Manual for Courts-Martial, in effect at the time, shows in the table of maximum punishments that for violation of Article 134, possession of heroin or selling of heroin, a court-martial could impose a sentence of a Dishonorable Discharge and confinement of up to 10 years for each charge. 2. Army Regulation 635-200, chapter 10, in effect at the time, states that a Soldier who has committed an offense punishable by court-martial may request discharge for the good of the service. It also states that Soldiers discharged under this chapter will normally be given a UOTHC characterization of service. 3. Army Regulation 635-200 states an HD 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. 4. Army Regulation 635-200 states a GD 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. 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 Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, 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) (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) (1) Recurrent, involuntary, and intrusive memories. (2) Traumatic nightmares. (3) Dissociative reactions (e.g., flashbacks) which may occur on a continuum from brief episodes to complete loss of consciousness. (4) Intense or prolonged distress after exposure to traumatic reminders. (5) 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) (1) Trauma-related thoughts or feelings. (2) 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) (1) Inability to recall key features of the traumatic event (usually dissociative amnesia; not due to head injury, alcohol, or drugs). (2) Persistent (and often distorted) negative beliefs and expectations about oneself or the world (e.g., "I am bad," "The world is completely dangerous"). (3) Persistent distorted blame of self or others for causing the traumatic event or for resulting consequences. (4) Persistent negative trauma-related emotions (e.g., fear, horror, anger, guilt, or shame). (5) Markedly diminished interest in (pre-traumatic) significant activities. Feeling alienated from others (e.g., detachment or estrangement). (6) 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) (1) Irritable or aggressive behavior (2) Self-destructive or reckless behavior (3) Hypervigilance (4) Exaggerated startle response (5) Problems in concentration (6) 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. 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 UOTHC may have had an undiagnosed condition of PTSD at the time of 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 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. 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. 10. Although the DOD acknowledges that some Soldiers who were administratively discharged UOTHC 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 UOTHC 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 UOTHC. a. 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. b. 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. DISCUSSION: 1. The applicant requests an upgrade of his UOTHC discharge for the good of the service in lieu of trail by court-martial. 2. The applicant contends that in 2015 he was granted a 50% service connected disability for PTSD, which was the source of the misconduct that led to his discharge. A review of his military records and his available medical records, to include his separation medical examination and mental status evaluation, revealed no evidence of PTSD symptoms at the time of his offenses or discharge. He has not provided documentation confirming a current diagnosis of PTSD. Accordingly, the provisions of the 3 September 2014 Secretary of Defense memorandum do not apply. 3. The applicant voluntarily requested discharge for the good of the service in lieu of trail by court-martial and in his request acknowledged the type of discharge he could receive and its effects. A review of his discharge process and documents revealed no evidence of impropriety or inequity. This was confirmed by two prior ADRB decisions. 4. The 15 letters describing good post-service conduct and character that the applicant provided are acknowledged, but they do not mitigate the seriousness of the crimes of possessing and selling heroin as a Soldier in 1971. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150003032 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150003032 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2