IN THE CASE OF: BOARD DATE: 14 July 2016 DOCKET NUMBER: AR20150005752 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: 14 July 2016 DOCKET NUMBER: AR20150005752 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 AR20090016946, dated 13 April 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: 14 July 2016 DOCKET NUMBER: AR20150005752 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 previous request for an upgrade of his bad conduct discharge to a general discharge. 2. The applicant states, in effect, he is providing a new argument and new evidence that were not previously considered. 3. The applicant provides: * a memorandum, dated 7 August 2007 * a memorandum written to the VA, dated 26 October 2014, from the applicant's former commander * nine pages of medical records, dated 12 June 2015 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 AR20090016946 on 13 April 2010. 2. As a new argument, the applicant states: a. Over the Thanksgiving holiday, on or about the week of 24 November 2007 [i.e. 2006], he was the noncommissioned officer in charge (NCOIC) of Quarters at Fort Wainwright, AK. He was contacted and informed that a female Soldier was found crying in the male’s restroom. The female private (PVT) complained that others were making her feel uncomfortable and she had the desire to hide from them. The PVT was new to this duty station and was unable to leave the installation over the holiday weekend. b. The Reception Station cadre did not have any females on staff and his chain of command was not very clear. There were no officers and the highest NCO in the cadre was an E-5. He (the applicant) had been on the installation at least 3 weeks and had witnessed that the unwritten procedure for "troubled" Soldiers was to secure them continuously for 24 hours until the unit assignments were completed. The action he performed was to secure the female at his private quarters off post overnight and he returned her to the Reception Station the following morning. c. Shortly after she returned, the female accused him of rape and notified the U.S. Army Criminal Investigation Command (CID) along with his chain of command. He gave his statement to many other higher-ranking NCOs and was then assigned to the Brigade S-3 to be supervised until further action was taken. There were no drugs or alcohol used while the female stayed at his residence and he provided his deoxyribonucleic acid (DNA) for testing. He imagined this was standard operating procedure for sex crimes but the results were never shown during his court-martial. d. When he was performing his duties at Fort Wainwright, he had just been promoted to sergeant (SGT)/E-5 and he was just returning from two tours [i.e. one tour] in Iraq. His paperwork was being processed for Ranger School and Special Forces. In Iraq, he was a vehicle team leader and did not have any Article 15s or any other form of punishment on his record. Why would he throw away 7 years of honorable service on a PVT that had not completed a full year of service and had four different types of DNA found on her and her clothing? He does take responsibility for having the female alone with him. e. Since his discharge, he has received a medical diagnosis of post-traumatic stress disorder (PTSD) from the Department of Veterans Affairs (VA). 3. As new evidence, the applicant provides: a. A memorandum for the [CID] Special Agent in Charge, dated 7 August 2007, from the CID Laboratory, Forest Park, GA, wherein it stated, in part: (1) The items tested were the shirt, underwear, and bra of the victim. Semen was detected on the shirt and underwear, none was detected on the bra. (2) DNA mixtures of different individuals were obtained from the shirt, underwear, and bra; each item contained the DNA from the victim and the others from an unknown male/males. The applicant was excluded as a possible contributor to all of the items (emphasis added). b. Nine pages of VA medical records, dated 12 June 2015, wherein the examining physician stated, in part: (1) The applicant was in the clinic for a psychiatric consultation. His past psychiatric history was significant for depression and PTSD. Refer to the psychiatric consult from the Tampa VA, dated 30 June 2014, for additional historical information. He stated his chief complaint was he felt like he was backsliding. He was experiencing worsening trauma-related nightmares, irritability, anger with tearfulness, and he had been using alcohol for the past month to sleep. He stated while serving two tours in Iraq he feared death or serious injuries "every f-----g day." (2) He denied a history of psychotic symptoms, episodes, or other psychiatric complaints. He endorsed a history of multiple blunt head traumas during numerous jumps as a paratrooper. Refer to the neuropsychological note, dated 23 December 2013, from the Tampa VA, the conclusion of which did not support persistent neurocognitive impairment due to traumatic brain injury. (3) He stated his alcohol use escalated while stationed at Fort Bragg, NC. He had been sober since his psychiatric hospitalization in approximately 2013. The psychiatric diagnoses were military trauma-induced PTSD, major depressive disorder, and panic disorder without agoraphobia, and to rule out alcohol use disorder. 4. The applicant enlisted in the Regular Army on 28 February 2002 and he held military occupational specialty 11B (Infantryman). He served in Iraq from 16 November 2004 to 15 November 2005. In 2006, he was promoted to SGT. 5. On 28 September 2006, he was assigned to Headquarters and Headquarters Company, 1st Stryker Brigade Combat Team, 25th Infantry Regiment, Fort Wainwright. 6. On 27 November 2006, the Fort Wainwright CID Office was notified by the Family Advocacy Program Manager, Army Community Services, that a female PVT reported she was indecently assaulted by the applicant at his off post residence. A CID investigation was initiated on that date. 7. In a memorandum, dated 19 October 2007, the CID investigator stated: a. The CID investigation established probable cause to believe that the applicant committed the offense of indecent assault when he fondled the PVT's genitals. The applicant further committed the offense of attempted forced sodomy when during the incident he attempted to sodomize the PVT; however, her actions prevented the act. b. On 5 September 2007, the office received the CID Laboratory examination report. The report revealed a total of three unknown samples suitable for comparison on the shirt and underwear. None of the samples were made by the applicant. c. On 25 September 2007, the applicant was advised of his legal rights which he waived and he denied he sexually assaulted the PVT. The applicant stated the sexual acts were consensual. 8. Court-martial charges were subsequently preferred against him for one specification each of: a. Between on or about 24 and 25 November 2006, committing an indecent assault upon PVT JDB, a person not his wife, by pulling down her shorts and thongs to her ankles, touching her breasts and genital with his hand, and touching her face with his exposed, erect penis with intent to gratify his lust and sexual desires. b. Between on or about 24 and 25 November 2006, violating a lawful general regulation by wrongfully fraternizing with PVT JDB in a way that was exploitative and coercive in nature and that involved the improper use of rank or positon for personal gain. 9. On 22 October 2007, at a general court-martial the applicant pled not guilty to the first specification and guilty to the second specification. He was found not guilty of the first specification and was convicted by the general court-martial of one specification of wrongfully fraternizing with PVT JDB in a way that was exploitative and coercive in nature and that involved the improper use of rank or position for personal gain. The sentence imposed was reduction to PVT/E-1, confinement for 16 months, and a bad conduct discharge. 10. On 28 February 2008, the general court-martial convening authority approved only so much of the sentence that provided for the reduction to PVT, confinement for 12 months, and a bad conduct discharge. 11. He was confined at the Regional Confinement Facility, Fort Sill, OK. On 14 July 2008, he was placed on excess leave while awaiting the appellate review. 12. On 30 October 2008, the sentence having been affirmed and complied with, the approving authority ordered the bad conduct discharge executed. On 14 March 2009, the applicant returned to military control at Fort Sill. On 19 March 2009, he was discharged accordingly. 13. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he was discharged as a result of court-martial under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 3, with a bad conduct characterization of service. He completed 6 years, 3 months, and 23 days of net active service of which 243 days (8 months and 3 days) was excess leave and he had 267 days (8 months and 27 days) of lost time due to being in confinement. 14. In the processing of this case, an advisory opinion was received on 25 May 2016 from the Office of The Surgeon General. The advisory official stated the opinion was based on information provided by the Board and records available in the Department of Defense (DOD) electronic medical record (AHLTA). The advisory official opined: a. The only behavioral health AHLTA note, dated 4 April 2007, indicated the applicant was experiencing mild depressive symptoms due to situational stressors. Specifically, he was pending Uniform Code of Military Justice proceedings [at that time]. b. The court-martial charges against the applicant did not appear to correspond with the symptoms of PTSD. In addition, there was no medical documentation that he met the criteria for PTSD at the time of separation. 15. On 13 June 2016, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal; however, no response was received. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides 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 provides 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. c. Paragraph 3-7c states a discharge under other than honorable conditions (UOTHC) is an administrative separation from the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court-martial in certain circumstances. d. Paragraph 3–11 states that a Soldier will be given punitive discharge (i.e. bad conduct discharge or dishonorable 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. 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." 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. 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. 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 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 of time. 6. In view of the foregoing, on 3 September 2014 the Secretary of Defense directed the Service DRBs and Service 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. 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? * Do mitigating factors exist in the applicant's case? * How serious was the misconduct? 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 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. 9. 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 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. 10. 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. DISCUSSION: 1. The evidence of record confirms the applicant's trial by a general court-martial was warranted by the gravity of the offenses charged. He was an NCO entrusted with taking care of subordinate Soldiers and he pled guilty to and was found guilty of wrongfully fraternizing with a female PVT in a way that was exploitative and coercive in nature and that involved the improper use of rank or position for personal gain. His conviction, confinement, and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterized the misconduct for which he was convicted. 2. Notwithstanding the applicant's contention that he took the PVT to his off post housing to take care of a "troubled" Soldier, the evidence of record confirms he admitted in a sworn statement that he committed sex acts with a PVT and claimed the sexual acts were consensual. In addition, there is no evidence that his diagnosis of PTSD several years after his discharge was a causative factor in his misconduct at the time it occurred. 3. His contention that the DNA results were not presented at his court-martial is noted; however, his record contains the CID report that concluded his DNA was not a match to the samples they had taken and he was subsequently found not guilty by the general court-martial of committing an indecent assault upon the PVT. It is reasonable to presume the results of the DNA testing were presented at his court-martial and that is the reason he was found not guilty of that specification. 4. He received a bad conduct discharge pursuant to an approved sentence of a general court-martial. The appellate review was completed and the affirmed modified sentence ordered duly executed. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout. 5. By law, any redress by the ABCMR of the finality of a court-martial conviction is prohibited. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. His post-service diagnosis of PTSD does not support a consideration of clemency. As he received a punitive discharge, the Secretary of Defense 2014 memorandum is not applicable in his case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150005752 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150005752 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2