IN THE CASE OF: BOARD DATE: 4 August 2016 DOCKET NUMBER: AR20150003041 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: 4 August 2016 DOCKET NUMBER: AR20150003041 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: 4 August 2016 DOCKET NUMBER: AR20150003041 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, in effect, that his bad conduct discharge (BCD) sentence by a general court-martial (GCM) be upgraded to a general, under honorable conditions discharge (GD) because of mental health issues he had at the time of the offense. 2. The applicant submitted statements through his counsel (attorney) as listed below. He states: * He had post-traumatic stress disorder (PTSD) from deployment to the Iraq where he experienced bombings * He contracted leishmaniasis (a parasitic skin disease transmitted by sand fly bites) when deployed requiring medical evacuation to Walter Reed for treatment * His life started to unravel and refers to matters brought before the GCM about the death of his mother and grandmother * He was hospitalized for 3 weeks for psychiatric treatment * He contends that the GCM was not informed about his psychiatric hospitalization * He contends that the Sanity Board prior to his GCM was inadequate and did not address PTSD * He is a stay at home dad that takes care of three children, one a special needs daughter * He continues to receive treatment and medication for mental health * He feels that his commander, the GCM, and the GCM Convening Authority (GCMCA) did not understand his mental health conditions * His wife provides a statement of positive support for him COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests, in effect: a. Review the applicant’s BCD sentenced by a GCM to determine whether the characterization of service, separation authority, reentry code (RE), and narrative reason for discharge are properly based on standards of equity and propriety. b. Consider that the applicant suffers from mental health issues which were the root of all his problems while he was on active duty. c. Consider the applicant’s records for PTSD which were not presented at his court-martial. d. Consider that he was admitted to a psychiatric unit for three weeks prior to being charged and this information was never brought to the court's attention. e. Take into consideration that the applicant is on mental health medication. f. The applicant did not receive effective assistance from his military assigned counsel on several issues. g. Consider his accomplishments since leaving active duty to include being a stay at home dad to three children one of whom is his daughter who has special needs. h. Change the applicant’s BCD to a general under honorable conditions discharge by reason of Secretarial Authority. 2. Counsel states: * The applicant was admitted to a psychiatric hospital for 3 weeks prior to the assault for which he was court-martialed but his defense counsel did not introduce this to the GCM for which contention is made that the defense counsel was ineffective * During the GCM, the defense counsel (DC) (applicant’s attorney) asked questions about the applicant’s mental health but did not ask about the 3-week psychiatric hospitalization (page 210 of the Record of Trial) * The applicant submitted an appeal declaration (letter) to the U. S. Army Court of Criminal Appeals in which he stated he was insane and suffering from PTSD when he committed that assault for which he was court-martialed but he did not include information on his psychiatric hospitalization * The applicant’s GCM-ordered Sanity Board was conducted by two doctors instead of three doctors, the applicant was interviewed briefly by only one doctor, and PTSD was not considered * PTSD was not raised as mitigation for the applicant’s misconduct or sentence * The Secretary of Defense memorandum, dated 3 September 2014, directs boards for correction of military records to consider PTSD as possibly mitigating for discharges under other than honorable conditions * The applicant takes medication to treat his PTSD * PTSD is the root of the applicant’s problems * Post-service, the applicant is a stay at home dad who takes care of his three children to include a special needs child 3. Counsel provides the following evidence: * Applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period of service from 3 January 2000 to 17 August 2007 * GCM Order * Decision of the U. S. Army Court of Criminal Appeals * Applicant’s statement with family photo * Excerpt (page 208) from the GCM Record of Trial * Excerpt (page 210) from the GCM Record of Trial * Petition to Commander, Fort Rucker, GCMCA, under Rules for Court-Martial (RCM) 1105 and 1106, requesting clemency from BCD and confinement in excess of 6 months * Pictures of current medication bottles * Applicant’s request to the U. S. Army Court of Criminal Appeals to dismiss the GCM findings and sentence based on insanity * Selected medical documents which includes a Psychiatric Evaluation Comprehensive Examination of the applicant conducted as a military dependent on 4 February 2011 at Tripler Army Medical Center, Hawaii * Award documents for: * Good Conduct Medal (2nd Award) for the period 3 January 2003 to 2 January 2006 * Good Conduct Medal for the period 3 January 2000 to 2 January 2003 * Certificate of Achievement for the period 4 September 2003 to 6 September 2003 * Letter of support from the applicant’s wife * Information on leishmaniasis * Subsequently submitted additional medical documents from the Southeast Alabama Medical Center for inpatient care from 19 April 2005 to 3 May 2005 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 3 January 2000 for a 6-year period of service. After completing basic training and advanced individual training, he was awarded military occupational specialty 15R, AH-64 Attack Helicopter Repairer, and assigned to the 2nd Aviation Regiment at Camp Page, Korea. He was advanced through the ranks to the rank of specialist (E-4) on 1 October 2001. On 2 December 2002, he was arrested for assault and battery on his wife (now former wife), a private first class. 3. On 24 January 2003, the applicant was reassigned to the 1st Aviation Battalion, 101st Airborne Division at Fort Campbell, Kentucky. He was deployed to Iraq from 26 February 2003 to 25 February 2004. The applicant was medically evacuated to Walter Reed Army Medical Center where he remained from 20 January 2004 to 9 February 2004 for treatment of leishmaniasis contracted from a sand fly bite in Iraq. (The leishmaniasis parasite causes skin ulcers and infection can progress to life threatening conditions.) 4. In early 2005, he was reassigned to the 110th Aviation Brigade at Fort Rucker, Alabama. The applicant stated that he had requested a compassionate reassignment to be near his terminally ill mother who passed away in January 2005. The applicant also stated that, following his mother’s death, his great aunt to whom he was very attached was diagnosed with Alzheimer's dementia with not long to live. 5. On 18 April 2005, the applicant was arrested by military police for simple assault consummated with battery on a female Soldier, SPC X, in the barracks. On 19 April 2005, he was given a counseling statement by his company commander on this incident and given a “no contact” order with respect to SPC X. 6. On 19 April 2005, the applicant stated that he was stressed and having suicidal ideations so his unit took him to see a psychiatrist on post. A memorandum from the Chief, Department of Behavioral Medicine, U. S. Army Aeromedical Center, Fort Rucker, states the applicant was diagnosed with severe major depressive disorder (MDD) warranting impatient treatment. On 19 April 2005, he was admitted to Southeast Alabama Medical Center, Dothan, Alabama. He stated to the attending doctor (Dr. M), a doctor of psychiatry, that he had a rough childhood. He was mistreated by his step-mother and beaten by his father. His father suffers from clinical depression and his paternal grandfather committed suicide. At age 11, he was blamed for the sudden infant death syndrome death of his 2-month-old brother after which his father’s beatings got worse. He stated that he and his brother were unhappy in school and very depressed. He lost his mother in January 2005. He tried to get a compassionate reassignment to be near her but the paperwork was lost. He did not get a chance to say good-bye to her. His great aunt, to whom he was always very attached, was diagnosed with Alzheimer’s dementia and did not have long to live. He stated that he thought that his girlfriend was cheating on him. Because of all of these domestic issues which hit him all at once, he felt he could not take it anymore, his nerves were shot, and he could not function. As a result, he had angry outbursts he felt he could not control and he was having trouble sleeping at night. He could not get rest or peace, felt sad and depressed, had crying episodes, had no energy or motivation, had anxiety feelings, had suicidal ideation but did not dwell on it, and just wanted to be left alone. Dr. M diagnosed the applicant with a severe MDD with anxiety symptoms and PTSD based on the above psychological stressors. He was treated with medication and psychological therapy. The applicant was released from the hospital on 3 May 2005 with direction for outpatient follow up care on 4 May 2005 with Dr. W, a psychologist at the Behavioral Medicine Unit, Lyster Army Health Clinic, Fort Rucker. 7. A 1 June 2005 letter from a licensed professional counselor from AltaCare, Outpatient Behavioral Health Clinic, Southeast Alabama Medical Center, stated that the applicant’s diagnosis of MDD with anxiety symptoms should be considered in mitigation of the 18 April 2005 assault. (Note: all the aforementioned communications and medical records in paragraph 6 and 7 were in the GCM record of trial exhibits and documentation with the exception of the 3 May 2005 hospital release record.) 8. On 2 June 2005, Dr. W provided a memorandum to the applicant’s commander that referred to the applicant’s severe MDD that required hospitalization (Southeast Alabama Medical Center from 19 April 2005 to 3 May 2005) and gave a current evaluation of the applicant’s mental health condition that he was responding well to psychiatric medication and treatment, he did not have suicidal ideation, and he accepted responsibility for his actions. Dr. W considered the applicant psychologically fit to receive discipline for misconduct. Dr. W opined that the applicant’s severe situational stressors and significant depression could have contributed to irrational thinking processes and unreliable behavior at the time of his assault on SPC X on 18 April 2005. 9. On 3 June 2005, the applicant was given nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for unlawfully choking SPC X in violation of Article 128, UCMJ. He was reduced to E-3, which was suspended if not vacated before 2 August 2005. He was fined $383 and given 14 days of extra duty. The company commander reiterated his order for the applicant not to have contact with SPC X. 10. On 5 July 2005, the applicant married SPC X. 11. On 14 July 2005, the suspended reduction to E-3 was vacated and the applicant was reduced accordingly for violation of the commander’s “no contact” order on 5 July 2005 when he married SPC X. 12. On 15 July 2005, the applicant was arrested by the military police for assaulting with battery SPC X, his wife. The applicant was placed in pretrial confinement. 13. Between 15 and 20 July 2005, the applicant was charged with assault that occurred on 15 July 2005 with three specifications, and one additional charge for assault with three specifications in violation of Article 128 on three other earlier dates, and referred to a GCM. a. Charge 1 – specification 1 - on or about 15 July 2005 assaulted SPC X by striking her on the head and face with fists, and did thereby intentionally inflict grievous bodily harm upon her, to wit: a broken nose, numerous contusions, ruptured eardrums, and a ruptured nasal cavity. b. Charge 1 – specification 2 - on or about 15 July 2005 assaulted SPC X by striking her on the head and face with means or force likely to produce death or grievous bodily harm, to wit: his fists. c. Charge 1 – specification 3 - on or about 15 July 2005 unlawfully struck SPC X by striking her on the head and face with fists, and did thereby intentionally inflict grievous bodily. d. Additional Charge – specification 1 – on or about 4 July, unlawfully strike SPC X on the head and face. e. Additional Charge – specification 2 – on or about 27 June 2005, assaulted SPC X by striking her in the face with his fists and holding a knife to her throat. f. Additional Charge – specification 3 – on or about 18 April 2005 assaulted SPC X by choking her with his hands. 14. On 9 November 2005, the DC entered a motion to dismiss the applicant’s charges and specifications for the government failure to provide a speedy trial. This motion was reviewed in the GCM, the court determined there was no impropriety, and the motion was dismissed. 15. On 14 November 2005, the applicant requested discharge in lieu of court-martial. In his personal request statement, which he signed, he did not raise any issues of mental health in mitigation. On 22 November 2005, after legal review of all the related documentation, the GCMCA denied the request for discharge in lieu of court-martial. 16. On 20 December 2005, the GCM was conducted. The applicant requested GCM by military judge (MJ) only and not by a panel. DC and trial counsel (TC) provided the MJ the following documents concerning the applicant’s mental health: a. The 2 June 2005 memorandum from Dr. W. referred to in paragraph 7 above. b. A letter from AltaCare, Southeast Alabama Medical Center, Outpatient Behavioral Health Services, dated 1 June 2005, signed by licensed professional counselor Mr. E, stating that the applicant had been in psychiatric treatment since 19 April 2005, first as an inpatient and then in the AltaCare Partial Hospitalization Program. The applicant had been diagnosed with MDD with anxiety symptoms which he opined mitigated the assault on SPC X. He stated that the applicant will need continued follow-up psychiatric care. c. History and physical medical records from Southeast Alabama Medical Center, Dothan, Alabama, dated 20 April 2005, documenting the applicant’s psychiatric hospital admission, history of domestic events that caused his depression, and shows a diagnosis of MDD with anxiety symptoms. (See paragraph 6 above). d. A letter from Southeast Psychiatric Services, dated 12 December 2005, signed by Dr. M, stating that the applicant was admitted for psychiatric care for severe depression, listing his psychiatric medications, giving a brief history of the causes of his depression, and opining that the applicant’s mental health conditions could have had an impact on the applicant at the time of his offense. e. The MJ conducting the GCM requested on 18 November 2005 a Psychological Evaluation (Sanity Board) in accordance with RCM 706 to include interviews with the accused, a review of medical records and history of the accused, and consideration of psychological tests. The Sanity Board was directed to answer four specific questions in accordance with RCM 706. On 7 December 2005, the sanity board was conducted by two mental health doctors, one a psychiatrist, who answered the judge’s specific questions in a 9 December 2005 report: (1) At the time of the alleged criminal conduct, the accused did not have a severe mental disease or defect. (2) The clinical psychiatric diagnosis of the accused is: MDD, single episode, severe without psychotic features. (3) There is no severe mental disease or defect rendering the accused unable to appreciate the nature and quality or wrongfulness of his conduct. (4) The accused has sufficient mental capacity to understand the nature of the proceedings against him (trial by court-martial) and to conduct or cooperate intelligently in the defense. 16. The Record of Trial shows: a. Pages 1-7 – the applicant’s rights were explained to him and the charges were read (charge sheets shown after page 6). b. Page 7 – the DC entered a motion to dismiss the charges due to failure of the government to move forward with reasonable diligence in the prosecution of the case. After review of the contentions raised by the DC and the facts, the MJ did not find sufficient impropriety or justification to grant the motion and so it was denied. c. Pages 131-132 – the MJ explained the applicant’s rights and differences between court-martial (CM) by a five member panel or by the MJ alone. The applicant requested CM by MJ alone which was approved. d. Pages 134-136 – the applicant plead guilty to Charge 1, specification 1, with modification of wording to the effect that he plead guilty to on or about 15 July 2005 assaulting SPC X by striking her on the head and face with a means or force likely to produce death or grievous bodily harm, to wit: his fists. He plead not guilty to the other charge and specifications. The MJ explained to the applicant the meaning of pleading guilty and the rights by which he was giving up. The applicant stated that he understood. (By pretrial plea agreement, the applicant pleaded guilty to this modified charge and specification with the agreement that the other charge and specifications would be dropped and his confinement, if sentenced, would not be for more than 12 months.) e. Pages 137-139 with stipulation pages 1-2 – the applicant voluntarily entered the stipulation of facts that on or about 15 July 2005 he committed the offense of aggravated assault on SPC X, a violation of UCMJ Article 128, and did so unlawfully by striking her on the head and face with his fists with a force likely to produce grievous bodily harm. The applicant confirmed to the MJ that he agreed by signature to the stipulation and understood it would be used in determining an appropriate sentence. f. Pages 140-143 – the MJ explained to the applicant the meaning of elements of the charge to which the applicant pled guilty to include aggravated assault with means or force likely to produce death or grievous bodily harm. The applicant responded that he understood the elements of the charge. g. Pages 144-160 – the MJ asked the applicant questions about what happened on 15 July 2005. (1) On page 145, the applicant stated that he had started drinking before the assault occurred but on page 158 denied that he was pleading a defense of voluntary intoxication. (2) On page 146, the applicant told the MJ that he had been taking prescribed anti-depressants and mood stabilizing drugs for the prior three and a half to four months but voluntarily stopped taking them two weeks before the assault occurred. (3) On page 147, the MJ asked the applicant what he had been diagnosed with, to which the applicant responded severe depression, anxiety disorder, and PTSD. The MJ asked if by PTSD, the applicant meant post-traumatic stress disorder to which the applicant answered “Yes.” (4) On page 147, the MJ asked what had caused his depression. The applicant answered the recent deaths of his mother and his grandmother. (5) On page 148, the MJ asked the applicant about his deployment to Iraq. The applicant told about becoming infected with leishmaniasis from sand flies and medical evacuation to Walter Reed for treatment. The MJ judged concluded by stating that in July 2005, the applicant had been diagnosed with a variety of ailments to which the applicant answered “Yes.” (6) On page 160, after reviewing the above and listening to the testimony of the applicant, the MJ asked the applicant if he had justification or excuse for assaulting SPC X to which he answered “No.” h. Pages 161-172 – maximum sentence for this violation include dishonorable discharge and 3 years confinement was stated. A pretrial agreement was introduced that the applicant would plead guilty to a modified charge for assault (see paragraph 16d above) in exchange for dropping the other charge and other specifications and a limit of 12 months confinement. On page 166, the applicant responded that the agreement originated with him, and on page 168, he stated that he entered in the agreement of his own free will. i. Page 168 – the MJ asked the applicant if he was satisfied with his DC's advice concerning the pretrial agreement, to which the applicant responded “Yes.” j. Page 169 – the MJ asked the applicant if he was pleading guilty not only because he hoped to receive a lighter sentence, but also because he was convinced that in fact he was guilty, to which the applicant responded “Yes.” k. On pages 170-171 – the MJ asked the applicant if he was satisfied that his DC’s advice was in his best interest, to which he answered “Yes.” The MJ asked the applicant if he was satisfied with Captain A as his DC, to which the applicant answered “Yes.” l. Pages 172-173 – the additional charge with three specifications was dismissed and the charge specification for the assault on 15 July 2005 was reduced to the single charge according to the pretrial agreement. m. Pages 174-178 – the TC and the DC both introduced exhibits of letters and medical records showing the applicant’s mental health history as matters of mitigation (see paragraph 15 above). On page 178, the MJ asked DC if the fact that the applicant stopped taking his medication was a defense (as opposed to mitigation) to the charge to which he pled guilty, to which the DC answered “No.” n. Pages 202-212 – the MJ asked questions of the applicant not under oath. He asked more details about the applicant’s deployment to Iraq and his duties there. On page 205, the MJ asked how the loss of his mother and grandmother affected him. The applicant responded that he only had his brother, mother, and grandmother on whom he could depend, so the loss hit him hard. On page 208, the MJ asked about the applicant’s mental health care to which the applicant responded about his 2 weeks in the Dothan hospital for behavioral medicine followed counseling at AltaCare. On page 207-208, the MJ again asked about the applicant’s medications, what they were for, and why he discontinued taking them. The applicant listed his medications, stated that they were for anti-depression, mood stabilization, and motivation. The MJ again asked what the affect was when he stopped taking them, to which he stated that the depression and anxiety came back full force. o. Page 211 – the MJ acknowledged the Sanity Board findings (see paragraph 15e above). p. Pages 212-216 – the DC gave a summation and asked the MJ to consider the extraordinary circumstances that led up to the acts that the applicant committed, his service in Iraq, his history of personal loss (mother, grandmother, and prior younger brother), and the applicant’s mental health at AltaCare with the statement of Dr. M that the applicant was suffering depression and anxiety. q. Page 217 – after a recess, the MJ pronounced a sentence of reduction to E-1, confinement for 14 months, and a BCD. In accordance with the pretrial agreement, the sentence was reduced to 12 months. 17. On 17 April 2006, the DC petitioned the GCMCA for clemency based on his leishmaniasis and treatment, his behavioral health hospitalization and treatment to include for PTSD, and his family losses and concerns. 18. On 25 April 2006, the GCMA considered the applicant’s petition, the record of trial, and the evidence and approved the sentence. 19. The applicant appealed his GCM conviction to the U. S. Army Court of Criminal Appeals citing his deployment (to which he added more combat trauma not previously mentioned anywhere else previously as justification for this PTSD), his leishmaniasis and treatment, his behavioral health hospitalization and treatment, and his family losses and concerns. On 26 December 2006, having considered the applicant’s appeal, record of trial and evidence the court affirmed the findings of guilty and the sentence. 20. On 21 June 2007, having served his confinement, the BCD was executed. The DD Form 214 properly shows that he was discharged with a BCD by reason of a court-martial under authority of Army Regulation 635-200, chapter 3, for which separation code JDD and reentry code 4 are the correct codes. 21. On 4 February 2011, a Psychiatric Evaluation Comprehensive Examination of the applicant was conducted at Tripler Army Medical Center, Hawaii, by a resident psychiatry doctor. The applicant at that time was as a military dependent. The examination diagnosed the applicant with MDD, moderate symptoms. The examiner stated that the source of the MDD was the death of his mother and grandmother, his resentment toward the military, and genetically predisposition to a mood disorder due to a family history of depression. No diagnosis of PTSD was made. 22. His wife provided a statement, dated 2 February 2015, indicating the applicant was a very good and kind-hearted person who was also a good stay-at-home father, who cared well for their three children and overall management of the household in support of her military career. 23. The Chief, Behavioral Health Division, Office of the Surgeon General of the Army, reviewed the applicant’s medical records. He stated that the basis for the applicant’s request is that he contends that his behavioral health history, including hospitalization, was never introduced at his court-martial. Based on available evidence, it is highly likely he suffered from MDD at the time of the offense and his psychiatric symptoms should be considered as a mitigating factor in his conduct. The applicant was provided a copy of this opinion but he has not provided a reply. REFERENCES: 1. The Manual for Courts-Martial (MCM), 2005 edition in effect at the time, shows in appendix 12, the maximum punishment for violation of Article 128 (assault with means likely to produce grievous bodily harm or death) to be a dishonorable discharge, confinement for 3 years, and total forfeiture of all pay and allowances. 2. The MCM, 2005 edition in effect at the time, RCM 706 (Inquiry into the mental capacity or mental responsibility of the accused) states: a. If it appears to any commander who considers the disposition of charges, or to any investigating officer, trial counsel, defense counsel, military judge, or member that there is reason to believe that the accused lacked mental responsibility for any offense charged or lacks capacity to stand trial, that fact and the basis of the belief or observation shall be transmitted through appropriate channels to the officer authorized to order an inquiry into the mental condition of the accused. The submission may be accompanied by an application for a mental examination under this rule. b. When a mental examination is ordered under subsection (b) of this rule, the matter shall be referred to a board consisting of one or more persons. Each member of the board shall be either a physician or a clinical psychologist. Normally, at least one member of the board shall be either a psychiatrist or a clinical psychologist. The board shall report as to the mental capacity or mental responsibility or both of the accused. c. When a mental examination is ordered under this rule, the order shall contain the reasons for doubting the mental capacity or mental responsibility, or both, of the accused, or other reasons for requesting the examination. In addition to other requirements, the order shall require the board to make separate and distinct findings as to each of the following questions: (1) At the time of the alleged criminal conduct, did the accused have a severe mental disease or defect? (The term "severe mental disease or defect" does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct, or minor disorders such as nonpsychotic behavior disorders and personality defects.) (2) What is the clinical psychiatric diagnosis? (3) Was the accused, at the time of the alleged criminal conduct and as a result of such severe mental disease or defect, unable to appreciate the nature and quality or wrongfulness of his or her conduct? (4) Is the accused presently suffering from a mental disease or defect rendering the accused unable to understand the nature of the proceedings against the accused or to conduct or cooperate intelligently in the defense? 3. 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. 4. 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) (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. 5. As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis and treatment of PTSD the Department of Defense (DoD) acknowledges that some Soldiers who were administratively discharged under other than honorable conditions (UOTHC) may have had an undiagnosed condition of PTSD at the time of their discharge. It is also acknowledged that in some cases this undiagnosed condition of PTSD may have been a mitigating factor in the Soldier's misconduct which served as a catalyst for their discharge. Research has also shown that misconduct stemming from PTSD is typically based upon a spur of the moment decision resulting from temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues for an extended period of time. 6. 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. 7. 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. 8. 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. 9. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) in effect at the time states in table 2-2 that the SPD code for a court-martial discharge is JDD. The SPD/RE Codes Cross-Reference Table in effect at the time shows the RE code of 4 for the SPD code JDD. DISCUSSION: 1. A review of the GCM record of trial and exhibits, the GCM orders, the appeal of the GCM, applicable regulations and manuals, and the DD Form 214 show that the BCD, separation authority, narrative reason for separation, and SPD and RE codes were proper and equitable considering the seriousness of the offense to which he pleaded guilty. 2. A review of the record of trial shows that the applicant’s behavioral health issues were duly considered by the court and the MJ. The record of trial shows that the MJ asked the applicant about his PTSD and the applicant responded accordingly. The fact that the applicant had been diagnosed with PTSD was presented to the court. The MJ also discussed with the applicant on two different occasions what medications he was prescribed and for what purposes. The applicant provided a response naming the medications and that they were prescribed for anti-depressants, mood stabilization, and motivation. The MJ discussed the applicant’s behavioral health treatments and the applicant responded that he had been hospitalized and received AltaCare follow-on counseling. Both the TC and the DC presented a total of five exhibits from the applicant’s behavioral health doctors attesting to the applicant’s behavioral health history, treatment, and status. These exhibits included the applicant’s behavioral health hospitalization admission record. These were all a matter of record in the record of trial and considered by the MJ. The MJ asked the applicant if he had any excuse for the assault to which he answered “No.” 3. On three occasions in the record of trial, the applicant responded to specific questions from the MJ about his DC and on all three occasions, the applicant responded that he was satisfied with his DC and the advice and assistance provided by the DC. It is also noted that the DC entered a detailed motion to dismiss the charges, worked with the applicant to prepare his pretrial agreement, submitted additional evidence on the applicant's behavioral health issues, and prepared a detailed appeal to the U. S. Army Court of Criminal Appeals wherein he again pointed out the applicant’s behavioral health issues. 4. In the DC’s summation to the MJ, the DC reminded the MJ of the applicant’s behavioral health history and again drew the MJ’s attention to the documented behavioral health evidence from the applicant’s psychiatrist, Dr. M, which was submitted as an exhibit by the DC. Accordingly, as shown in the record of trial, the MJ was well aware both from the applicant’s testimony and the behavioral health documentation submitted the DC, the TC, and the Sanity Board, of the applicant’s behavioral health status and its possible mitigation in the sentencing. It is noted that the sentence was less than the maximum that could have been imposed for the crime to which the applicant plead guilty. Further, because the applicant plead guilty to the principle charge and by his initiative entered into a pretrial agreement to this effect with conditions, and agreed to pretrial stipulation of the facts concerning the assault, the GCM was prevented from applying the behavioral health information in possible mitigation of the charges. 5. The applicant’s behavioral health issues, to include his hospitalization and PTSD, were again brought to the attention of both the GCMCA and the U.S. Army Court of Criminal Appeals by the appeals submitted by the DC and the applicant. After considering these appeals and the record of trial, both authorities affirmed the sentence and the BCD, and did not find justification for mitigation of the sentence for this serious crime. 6. The MJ ordered a Sanity Board in accordance with MCM RCM 706 in effect at the time which required a mental examination by a board consisting of one or more persons. Each member of the board shall be either a physician or a clinical psychologist. Normally, at least one member of the board shall be either a psychiatrist or a clinical psychologist. The Sanity Board was conducted and signed by a psychiatrist doctor and a medical doctor who was the chief of the Outpatient Mental Health Services. In accordance with RCM 706, they responded to the four specific questions as specified by RCM and the Sanity Board court order. After examining the applicant and his health records, they stated that the applicant at the time of the alleged criminal conduct did not have a severe mental disease or defect and that his psychiatric diagnosis is MDD, single episode, severe without psychotic features. Accordingly, there is no evidence of impropriety or inequity in the Sanity Board’s conduct or findings. 7. The applicant stated in his application to his board that he had PTSD as a result of combat events in Iraq. It is noted in the 3 May 2005 discharge record from Southeast Alabama Medical Center where he was first diagnosed with PTSD by Dr. M, that the record shows in the applicant’s psychiatric history that his PTSD was based on domestic stressors of the death of this mother and grandmother, his childhood history of abuse and depression, and his girlfriend cheating on him. No mention was made of any deployment stressors. In Dr. M’s 12 December 2005 letter, she identifies these same stressors and adds the stressor of contracting leishmaniasis in Iraq and the consequent medical treatment at Walter Reed Hospital. In the 11 February 2004 Psychiatric Evaluation Comprehensive Examination, the psychiatry doctor lists the same stressors identified by Dr. M and adds that the applicant experienced several combat encounters while in convoy but never had to fire a weapon, but no mention is made of bombing stressors. At that time, the psychiatry doctor diagnosed the applicant with MDD but did not diagnose the applicant with PTSD. 8. The Chief, Behavioral Health Division, Office of the Surgeon General of the Army, opined that based on available evidence, it is highly likely he suffered from MDD at the time of the offense and his psychiatric symptoms should be considered as a mitigating factor in his conduct. However, he did not have the benefit of review of the record of trial with its behavioral health evidence and Sanity Board findings. The Sanity Board did diagnose the applicant with MDD but did not find that at the time of the offenses, that the applicant had a severe mental disease or deficiency. 9. The 3 September 2014 Secretary of Defense direction to the Service Discharge Review Boards and 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 does not apply to this applicant’s discharge because he was not administratively discharged. His discharge was a punitive discharge as result of a GCM and as such the direction of the letter does not apply. In spite of that, the Secretary of Defense direction also states that 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. In the case of the applicant, his misconduct was severe in that he assaulted SPC X with means or force likely to produce death or grievous bodily harm. 10. The counsel points out the applicant’s post-service conduct of being the primary caregiver for his three children during the day, one a special needs daughter, while his wife continues to serve in the military. His service to his family as a conscientious father and his continued efforts to maintain his mental health are commendable. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150003041 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150003041 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2