IN THE CASE OF: BOARD DATE: 29 March 2016 DOCKET NUMBER: AR20150005713 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: 29 March 2016 DOCKET NUMBER: AR20150005713 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20090011474, dated 15 December 2009. ______________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: 29 March 2016 DOCKET NUMBER: AR20150005713 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 bad conduct discharge (BCD). 2. The applicant states: a. He was young, dumb and hooked on drugs. He wanted to go home and did not realize that what he was doing would eventually hurt him. He is asking for forgiveness. b. He was opposed to serving but he was drafted. He loved serving his country until he had to report to Vietnam. He attained the rank of specialist and was on his way to becoming a noncommissioned officer. He served as a cook in Vietnam The job was not hard but it was demanding. He started to feel depressed and began disobeying orders. He would sneak into the villages to get drunk. He began using marijuana and then cocaine. He got caught off base at one point and was reduced in rank c. When he received a pay reduction and forfeiture of pay he told the company commander he may as well take all of his rank because he was going to keep sneaking into the villages. The second time the company commander found him in the village, he took him back to the company area in his helicopter and reduced him in grade to private. d. His company got into a fight with another company and weapons were drawn and shots were fired. After the weapons were taken there was an alert and they had to go look for the enemy. He was injured and did not realize it until he got back to the company area because he was inebriated. When he took his boot off there was blood in it. He fainted and was taken to the hospital. He started hallucinating and the medic told him he going to give him a shot. e. In his condition the hypodermic needle looked very large so he ran out of the hospital and the drugs took over. He still had his rifle and thought he was still under attack by the enemy and he began firing back. The next thing he remembered he was being put in a "redline brig" and was never treated for his wounds. He still has trouble with his leg and has been treated at the VA hospital in Cleveland, OH. f. He now realizes that what he did was wrong and if he could do it over he believes it would have turned out differently. He believes he was under the influence of drugs and alcohol and was unaware of the danger he had placed others in. He had no idea that drugs and alcohol would make him do the things he did. He has been clean and sober for over 16 years and has led a productive life for over thirty years as a truck driver. He has suffered from depression and anxiety and he has other illnesses. His children paid for his mistakes and they have medical issues. g. He apologizes to the Army for his behavior. He asks for forgiveness from his fellow veterans, those currently serving, and to the officers in charge of hearing his case. He hopes that he will be forgiven for his youthful and immature behavior. 3. The applicant provides medical records from the Department of Veterans Affairs (VA) and a self-authored statement. 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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090011474, on 15 December 2009. 2. The applicant does not meet the criteria for a request for reconsideration in that his request was neither received within one year of the original Board's decision nor does it contain any new evidence. However, in view of the recent Secretary of Defense guidance regarding behavioral health issues of Vietnam veterans, specifically post-traumatic stress disorder (PTSD), his request will be considered by the Board. 3. The applicant was born on 27 June 1949. He was inducted into the Army of the United States on 17 April 1969 at the age of 19. He successfully completed basic combat training and advanced individual training in military occupational specialty 94A (cook). He arrived in Vietnam on 30 April 1970. 4. On 9 August 1970, while in Vietnam, he accepted nonjudicial punishment for absenting himself from his unit for two hours and violating a lawful general regulation by being apprehended in an off limits area. His punishment consisted of a reduction to E-3 and a forfeiture of pay (suspended). 5. On 13 November 1970, while in Vietnam, he was convicted by a special court-martial of larceny and wrongfully discharging a firearm (rifle) in the company area thereby endangering human life. He was sentenced to be reduced to pay grade E-1, to be confined at hard labor for 3 months, to forfeit $70 pay per month for 3 months, and to be discharged from the service with a bad conduct discharge. On 7 January 1971, the convening authority approved the sentence. 6. He applicant was transferred to the United States on 9 April 1971. 7. On 1 August 1972, the convening authority ordered the bad conduct discharge to be executed. 8. Accordingly the applicant was discharged with a bad conduct discharge on 12 October 1972 under the provisions of Army Regulation 635-200 (Personnel Separations), as a result of court-martial. He had served a total of 3 years, 2 months, and 25 days of creditable active service with 90 days of lost time due to confinement. 9. In support of his claim, the applicant provided numerous VA progress notes/records, dated 2007 and 2008, pertaining to his medications, ailments, and counseling. A progress note dated 7 August 2007, shows his PTSD screen was negative. REFERENCES: 1. 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 Army Board for Correction of Military Records (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. 2. Army Regulation 635-200 provides for the following characters of service: a. Paragraph 3-7a states that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b states that 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. 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. 6. In view of the foregoing, 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 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 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 causeal relationship of symptoms to the misconduct. DISCUSSION: 1. The ABCMR does not reexamine issues of guilt or innocence under a court-martial conviction. This is the court-martial convening authority and the appellate review function and cannot be upset by the ABCMR. Any redress by this ABCMR of the finality of a court-martial conviction is prohibited by law. The ABCMR is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. 2. Given the applicant's undistinguished record of service, and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate. As a result, clemency is not warranted in this case. 3. The Board weighed his claim of potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related symptoms as a causative factor in the misconduct that resulted in his conviction. 4. Even if his misconduct was, in part, related to a behavioral health issue, his egregious behaviors should be carefully weighed against the severity of his misconduct. 5. He was convicted by a special court-martial of larceny and wrongfully discharging a firearm (rifle) in the company area thereby endangering human life and he was sentenced to a reduction, confinement, and a bad conduct discharge. His trial by a special court-martial was warranted by the gravity of the offense 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. Presumably the court considered his war-time service when determining his sentence. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150005713 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150005713 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2