IN THE CASE OF: BOARD DATE: 2 August 2016 DOCKET NUMBER: AR20150004351 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: 2 August 2016 DOCKET NUMBER: AR20150004351 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR2010000237, dated 15 July 2010. ___________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: 2 August 2016 DOCKET NUMBER: AR20150004351 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 bad conduct discharge. 2. The applicant states he suffered from post-traumatic stress disorder (PTSD) while in Germany. He experienced depression since then and has undergone therapy. He has not been in trouble since his discharge and the treatment has changed him. 3. The applicant provides his Department of Veterans Affairs progress notes. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100000237, on 15 July 2010. 2. The applicant enlisted in the Regular Army on 4 January 1978 and he held military occupational specialty 36K (Tactical Wire Operations Specialist). He reenlisted on 5 July 1980. 3. He served in Germany from 9 November 1978 to on or around 10 December 1980 and from 26 May 1982 to on or about 14 May 1984. He attained the rank/grade of specialist four/E-4. 4. On 6 January 1982, he departed his Fort Stewart, GA unit in an absent without leave status but he returned to military control on 8 January 1982. 5. On 15 May 1984, consistent with his pleas, he was convicted by a special court-martial of: * one specification of wrongfully possessing 12.43 grams of hashish with intent to distribute * two specifications of wrongfully distributing marijuana in the hashish form on 25 February 1984 and 28 February 1984 * one specification of attempting to knowingly and wrongfully use cocaine 6. The court sentenced him to a reduction to the lowest enlisted grade of E-1, forfeiture of $300 pay per month for 2 months, confinement at hard labor for 2 months, and a bad conduct discharge. The convening authority approved his sentence on 19 June 1984. He also ordered the record of trial to be forwarded to The Judge Advocate General of the Army for appellate review. The applicant was confined. 7. On 14 September 1984, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence. 8. Special Court-Martial Order Number 18, issued by Headquarters, Fort Bragg, NC, on 12 February 1985, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge executed. 9. The applicant was discharged on 19 April 1985. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation (AR) 635-200 (Personnel Separations-Enlisted Personnel) with a bad conduct discharge. This form further shows he completed 7 years, 1 month, and 17 days of active service during this period and he had lost time from 6 January 1982 to 7 January 1982 and from 15 May 1984 to 4 July 1984. 10. On 4 April 1988, the Army Discharge Review Board denied his petition for an upgrade of his bad conduct discharge. 11. On 15 July 2010, the ABCMR also denied his petition for an upgrade of his bad conduct discharge. 12. An official from the Office of The Surgeon General (OTSG) rendered an advisory opinion on 1 July 2016 in the processing of this case. The advisory official referenced the Diagnostic and Statistical Manual-5th; AR 40-501 (Standards of Medical Fitness), with revision, dated 4 August 2011; and AR 635-200 (Active Duty Enlisted Separations), dated 6 September 2011. The official stated: a. The applicant entered active duty on 4 January 1978 and received a bad conduct discharge on 19 April 1985 in accordance with AR 635-200, chapter 3, section IV (As A Result Of Court­ Martial). In March 2015, he requested that the Board "upgrade his Bad Conduct Discharge due to PTSD." OTSG was asked to "review the applicant's petition and the allied papers, respond to the issues raised by applicant with the competence or expertise of your agency, and finally, prepare an advisory opinion analyzing the applicant's issues and the Board's questions, with a reasoned recommendation as to the recommended adjudication." This opinion is based solely on the information provided by the Board as the DOD electronic medical record (AHLTA) was not in use at the time. b. The records show the applicant has been receiving support services from the VA since 2007, including housing, vocational rehabilitation, addictions treatment and medication management. He has a service-connected pension due to a spinal cord injury while in the service. In 2010, he was diagnosed by his primary care manager (PCM) and completed a 45-day residential treatment program for PTSD in 2011. The precipitating stressor was identified as having witnessed his friend being killed by a train and the resulting splatter of body parts. From 2010 to 2015, his PCM diagnosed him with chronic PTSD, which he qualified as "subclinical non-combat, military-related PTSD." c. Although there are no behavioral health (BH) records from the time of his service, the breadth and intensity of his symptoms suggest that he met criteria for PTSD at the time of the misconduct. Therefore, his BH condition may have been a mitigating factor in the misconduct resulting in his separation. 13. The applicant was provided with a copy of this advisory opinion to give him an opportunity to comment and/or submit a rebuttal but he did not respond. REFERENCES: 1. AR 635-200, in effect at the time (1985 version), set forth the basic authority for the separation of enlisted personnel. It states in: a. Paragraph 3-7a, an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b, a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-7c, a discharge under other than honorable conditions is an administrative separation -from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of service in selected circumstances. d. Paragraph 3-11, a member will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 2. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. 3. PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster. The Diagnostic and Statistical Manual of Mental Disorders (DSM) is published by the American Psychiatric Association (APA) and it provides standard criteria and common language for the classification of mental disorders. In 1980, the APA added PTSD to the third edition of its DSM-III nosologic classification scheme. Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice. From an historical perspective, the significant change ushered in by the PTSD concept was the stipulation that the etiological agent was outside the individual (i.e., a traumatic event) rather than an inherent individual weakness (i.e., a traumatic neurosis). The key to understanding the scientific basis and clinical expression of PTSD is the concept of "trauma." 4. PTSD is unique among psychiatric diagnoses because of the great importance placed upon the etiological agent, the traumatic stressor. In fact, one cannot make a PTSD diagnosis unless the patient has actually met the "stressor criterion," which means that he or she has been exposed to an event that is considered traumatic. Clinical experience with the PTSD diagnosis has shown, however, that there are individual differences regarding the capacity to cope with catastrophic stress. Therefore, while most people exposed to traumatic events do not develop PTSD, others go on to develop the full-blown syndrome. Such observations have prompted the recognition that trauma, like pain, is not an external phenomenon that can be completely objectified. Like pain, the traumatic experience is filtered through cognitive and emotional processes before it can be appraised as an extreme threat. Because of individual differences in this appraisal process, different people appear to have different trauma thresholds, some more protected from and some more vulnerable to developing clinical symptoms after exposure to extremely stressful situations. 5. The DSM fifth revision (DSM-5) was released in May 2013. This revision includes changes to the diagnostic criteria for PTSD and Acute Stress Disorder. The PTSD diagnostic criteria were revised to take into account things that have been learned from scientific research and clinical experience. The revised diagnostic criteria for PTSD include a history of exposure to a traumatic event that meets specific stipulations and symptoms from each of four symptom clusters: intrusion, avoidance, negative alterations in cognitions and mood, and alterations in arousal and reactivity. The sixth criterion concerns duration of symptoms; the seventh assesses functioning; and the eighth criterion clarifies symptoms as not attributable to a substance or co-occurring medical condition. a. Criterion A, stressor: The person was exposed to: death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence, as follows: (one required) * Direct exposure * Witnessing, in person * Indirectly, by learning that a close relative or close friend was exposed to trauma. If the event involved actual or threatened death, it must have been violent or accidental * Repeated or extreme indirect exposure to aversive details of the event(s), usually in the course of professional duties (e.g., first responders, collecting body parts; professionals repeatedly exposed to details of child abuse). This does not include indirect non-professional exposure through electronic media, television, movies, or pictures b. Criterion B, intrusion symptoms: The traumatic event is persistently re-experienced in the following way(s): (one required) * Recurrent, involuntary, and intrusive memories * Traumatic nightmares * Dissociative reactions (e.g., flashbacks) which may occur on a continuum from brief episodes to complete loss of consciousness * Intense or prolonged distress after exposure to traumatic reminders * Marked physiologic reactivity after exposure to trauma-related stimuli c. Criterion C, avoidance: Persistent effortful avoidance of distressing trauma-related stimuli after the event: (one required) * Trauma-related thoughts or feelings * Trauma-related external reminders (e.g., people, places, conversations, activities, objects, or situations) d. Criterion D, negative alterations in cognitions and mood: Negative alterations in cognitions and mood that began or worsened after the traumatic event: (two required) * Inability to recall key features of the traumatic event (usually dissociative amnesia; not due to head injury, alcohol, or drugs) * Persistent (and often distorted) negative beliefs and expectations about oneself or the world (e.g., "I am bad," "The world is completely dangerous") * Persistent distorted blame of self or others for causing the traumatic event or for resulting consequences * Persistent negative trauma-related emotions (e.g., fear, horror, anger, guilt, or shame) * Markedly diminished interest in (pre-traumatic) significant activities * Feeling alienated from others (e.g., detachment or estrangement) * Constricted affect: persistent inability to experience positive emotions. e. Criterion E, alterations in arousal and reactivity: Trauma-related alterations in arousal and reactivity that began or worsened after the traumatic event: (two required) * Irritable or aggressive behavior * Self-destructive or reckless behavior * Hypervigilance * Exaggerated startle response * Problems in concentration * Sleep disturbance f. Criterion F, duration: Persistence of symptoms (in Criteria B, C, D, and E) for more than one month. g. Criterion G, functional significance: Significant symptom-related distress or functional impairment (e.g., social, occupational). h. Criterion H, exclusion: Disturbance is not due to medication, substance use, or other illness. 6. As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis and treatment of PTSD the DOD acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had an undiagnosed condition of PTSD at the time of their discharge. It is also acknowledged that in some cases this undiagnosed condition of PTSD may have been a mitigating factor in the Soldier's misconduct which served as a catalyst for their discharge. Research has also shown that misconduct stemming from PTSD is typically based upon a spur of the moment decision resulting from temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues for an extended period. 7. In view of the foregoing, on 3 September 2014 the Secretary of Defense directed the Service DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 8. BCM/NRs are not courts, nor are they investigative agencies. Therefore, the determinations will be based upon a thorough review of the available military records and the evidence provided by each applicant on a case-by-case basis. When determining if PTSD was the causative factor for an applicant's misconduct and whether an upgrade is warranted, the following factors must be carefully considered: * Is it reasonable to determine that PTSD or PTSD-related conditions existed at the time of discharge? * Does the applicant's record contain documentation of the occurrence of a traumatic event during the period of service? * Does the applicant's military record contain documentation of a diagnosis of PTSD or PTSD-related symptoms? * Did the applicant provide documentation of a diagnosis of PTSD or PTSD-related symptoms rendered by a competent mental health professional representing a civilian healthcare provider? * Was the applicant's condition determined to have existed prior to military service? * Was the applicant's condition determined to be incurred during or aggravated by military service? * Do mitigating factors exist in the applicant's case? * Did the applicant have a history of misconduct prior to the occurrence of the traumatic event? * Was the applicant's misconduct premeditated? * How serious was the misconduct? 9. Although the DOD acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had an undiagnosed condition of PTSD at the time of their discharge, it is presumed that they were properly discharged based upon the evidence that was available at the time. Conditions documented in the record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which PTSD or PTSD-related conditions may be reasonably determined to have existed at the time of discharge; those conditions will be considered potential mitigating factors in the misconduct that caused the 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. Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. DISCUSSION: 1. The evidence of record shows the applicant's trial by a special court-martial was warranted by the gravity of the offenses charged. Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted. By law, any redress by this Board of the finality of a court-martial conviction is prohibited. This Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. 2. The applicant's VA records show he has been receiving support services from the VA since 2007, including housing, vocational rehabilitation, addictions treatment and medication management. He has a service-connected disability due to a spinal cord injury while in the service. In 2010, he was diagnosed by his PCM and completed a 45-day residential treatment program for PTSD in 2011. The precipitating stressor was identified as having witnessed his friend being killed by a train and the resulting splatter of body parts. From 2010 to 2015, his PCM diagnosed him with chronic PTSD, which he qualified as "subclinical non-combat, military-related PTSD." 3. There are no BH records from the time of his service. While PTSD may have contributed to his misconduct of wrongfully possessing or wrongfully using illegal drugs, there is no connection or nexus between PTSD and the distribution of illegal drugs. In this regard, there were no mitigating factors to excuse or explain the distribution portion of his offense. 4. After carefully and cautiously weighing the mitigating evidence in the applicant’s case, notwithstanding the favorable OTSG advisory opinion, there is no likely causal relationship of the applicant’s PTSD symptoms to the "distribution of illegal drugs" portion of his misconduct for which he was convicted. It appears that the PTSD conditions were not a causative factor in all of the misconduct that led to the discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150004351 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150004351 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2