IN THE CASE OF: BOARD DATE: 20 September 2016 DOCKET NUMBER: AR20150008840 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: 20 September 2016 DOCKET NUMBER: AR20150008840 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 AC79-06926, on 30 January 1980, and Docket Number AC79-06296A, on 23 April 1980. _____________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: 20 September 2016 DOCKET NUMBER: AR20150008840 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, in effect, he has lived with this nightmare for too long. He got hurt stopping a robbery at Fort Sam Houston, TX, when a woman was being attacked. His commander held him for over 5 months during which he was harassed. His physical evaluation board had been done. He lost his family and his mental health, but not his faith. He served honorably for 2 years, 10 months, and 9 days. He wants his general court-martial overturned. He wants to clear his name and restore his honor. 3. The applicant provides: * Congressional correspondence * Letter from the Disabled American Veterans (DAV), National Service Office * 1977 Narrative Summary * multiple letters from "Project Transition" * U.S. Postal Receipt/Label * Community Counsel Health System Evaluation * Comprehensive Biopsychosocial Evaluation 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 AC79-06926, on 30 January 1980, and Docket Number AC79-06296A, on 23 April 1980. 2. Based on the applicant’s claim that he has PTSD, his application is being reviewed under the 2014 Secretary of Defense's guidance to Military Boards for Correction of Military (BCMR)/Naval Records (NR). 3. The applicant enlisted in the Regular Army on 29 May 1976. He completed training and was awarded military occupational specialty 91B (Medical Specialist). 4. On 3 September 1976, while still in training at Fort Sam Houston, TX, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for unlawfully striking another Soldier. His punishment consisted of a forfeiture of pay. 5. He was reassigned to the 556th Medical Company, Fort Dix, NJ. At some point, he was transferred to the Walter Reed Army Medical Center Holding Company in Washington, DC. While there, he accepted NJP under the provisions of Article 15 of the UCMJ on/for: * 13 May 1977, being absent without leave (AWOL) from 27 to 28 April 1977 and failing to go at the time prescribed to his appointed place of duty on 29 April 1977 * 12 September 1977, being AWOL from 1 September to 7 September 1977 * 14 September 1977, failing to go at the time prescribed to his appointed place of duty on three separate occasions, wrongfully possessing marijuana, and wrongfully appropriating a pack of cigarettes from the Walter Reed Medical Center Post Exchange 6. On 15 December 1977, he was arraigned before a general court-martial at Fort McNair, on the following charges: * Charge I, one specification of stealing money, a Department of Defense (DOD) civilian identification card, driver's license, and a credit card * Charge II, one specification of unlawfully concealing one tool box containing various tools, the property of another Soldier * Additional Charge I, one specification of assaulting another Soldier, a Military Police (MP), during the execution of MP duties * Additional Charge II, one specification of wrongfully communicating a threat to kill a Soldier (MP) * Additional Charge III, one specification of assaulting a Special Agent during the execution of his military law enforcement duties 7. The court dismissed Charge I and Charge II on motion of defense on grounds of lack of speedy trial. The court found him guilty of Additional Charges I, II, and III, and their specifications, and sentenced him to a bad conduct discharge, confinement at hard labor for 3 months, and a forfeiture of $250 pay per month for 3 months. 8. On 10 March 1978, the convening authority approved the sentence and except for the bad conduct discharge, he ordered it executed. The convening authority also ordered the record of trial forwarded to the Judge Advocate General of the Army for review by the U.S. Army Court of Military Review. 9. On 9 March 1979, the U.S. Army Court of Military Review affirmed the approved finding of guilty and the sentence. 10. General Court-Martial Order Number 18, issued by Headquarters, U.S. Army Training Center, Fort Dix, NJ, on 5 July 1979, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge executed. 11. The applicant was discharged on 8 August 1979. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) with an under other than honorable conditions characterization of service and he was issued a Bad Conduct Discharge Certificate. This form further shows he completed 2 years, 10 months, and 9 days of active service during this period, of which 121 days were lost time under Title 10, U.S. Code, section 972. There is no evidence in his service record to show a physical evaluation board was initiated or completed. 12. On 30 January 1980 and 23 April 1980, the ABCMR denied his petition for an upgrade of his bad conduct discharge. 13. The applicant provides a letter from the DAV National Service Office, his 1977 Narrative Summary, multiple letters from "Project Transition," Community Counsel Health System Evaluation, and a Comprehensive Biopsychosocial Evaluation. The Board forwarded his medical documents to the Office of The Surgeon General (OTSG) for review. An OTSG official rendered an advisory opinion on 12 August 2016 in the processing of this case. The official stated: a. The applicant requested that the Board reconsider his 1980 request for a discharge upgrade on the basis of mental illness. OTSG was asked to determine if the applicant's military separation was due to post-traumatic stress disorder (PTSD) or any other behavioral health (BH) condition. 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 of his service. b. A psychiatric evaluation conducted on 29 October 2015 notes that the applicant "has a history of active psychotic symptoms as well as episodes of depression and mania." Also documented are multiple inpatient hospitalizations, most recently in 2013, and two suicide attempts. c. Although there are no BH records from his military service, his current diagnosis of schizoaffective disorder; medication history that includes Haldol, lithium, Depakote and thorazine; and the degree of impairment in his social and occupational functioning suggest that he likely met criteria for a BH condition at the time of his separation. Furthermore, the symptoms of this BH condition would have mitigated the misconduct that led to his under other than honorable conditions discharge. 14. The applicant was provided with a copy of this advisory opinion to give him an opportunity to comment and/or submit a rebuttal. He did not respond. REFERENCES: 1. AR 635-200, in effect at the time, 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, 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, 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. AR 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice. The ABCMR will decide cases on the evidence of record. It is not an investigative body. 4. 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." 5. PTSD is unique among psychiatric diagnoses because of the great importance placed upon the etiological agent, the traumatic stressor. In fact, one cannot make a PTSD diagnosis unless the patient has actually met the "stressor criterion," which means that he or she has been exposed to an event that is considered traumatic. Clinical experience with the PTSD diagnosis has shown, however, that there are individual differences regarding the capacity to cope with catastrophic stress. Therefore, while most people exposed to traumatic events do not develop PTSD, others go on to develop the full-blown syndrome. Such observations have prompted the recognition that trauma, like pain, is not an external phenomenon that can be completely objectified. Like pain, the traumatic experience is filtered through cognitive and emotional processes before it can be appraised as an extreme threat. Because of individual differences in this appraisal process, different people appear to have different trauma thresholds, some more protected from and some more vulnerable to developing clinical symptoms after exposure to extremely stressful situations. 6. The 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. 7. As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis and treatment of PTSD the 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. 8. 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. 9. BCM/NRs are not courts, nor are they investigative agencies. Therefore, the determinations will be based upon a thorough review of the available military records and the evidence provided by each applicant on a case-by-case basis. 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? 10. 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 under other than honorable conditions 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 under other than honorable conditions. 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. With respect to his characterization of service: a. The evidence of record shows the applicant's trial by a general 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. b. By law, any redress by this Board 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. The evidence clearly shows the court sentenced him to a bad conduct discharge. Additionally, the appellate court affirmed the approved findings of guilty and the sentence. c. Based on the seriousness of his court-martial charges, coupled with his extensive history of NJP, it is clear that his service did not meet the criteria for an honorable or a general discharge. He provides no evidence of an error or an injustice. 2. With respect to medical/behavioral/psychological issues: a. The applicant's October 2015 psychiatric evaluation notes that he has a history of active psychotic symptoms as well as episodes of depression and mania. Also documented are multiple inpatient hospitalizations, most recently in 2013, and two suicide attempts. b. There are no BH records from his military service. An OTSG advisory official has opined that his current diagnosis of schizoaffective disorder, medication history, and the degree of impairment in his social and occupational functioning suggest that he likely met criteria for a BH condition at the time of separation and that the symptoms would have mitigated the misconduct that led to his discharge. c. There is no documentary evidence to suggest that, at the time of discharge, his functioning was impaired to the degree that he would have fallen below retention standards as indicated by a physical profile or other duty limitations. d. The applicant's service was clearly marred with misconduct from beginning to end as evidenced by his four instances of NJP and court-martial conviction. Additionally, the court-martial offenses were very serious in nature. e. The applicant's service in this case was not interrupted by any medical condition. His service was interrupted by his misconduct and subsequent court-martial conviction. The applicant has not provided supporting evidence that shows he was medically unqualified for continued service at the time of his 1977 conviction or 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) AR20150008840 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150008840 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2