IN THE CASE OF: BOARD DATE: 25 October 2016 DOCKET NUMBER: AR20150010206 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: 25 October 2016 DOCKET NUMBER: AR20150010206 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: 25 October 2016 DOCKET NUMBER: AR20150010206 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 dishonorable discharge to an honorable discharge due to post-traumatic stress disorder (PTSD). 2. The applicant states his discharge was drug related. He started smoking marijuana during his service in the Vietnam War. He never got treatment or knew about PTSD. He used marijuana to help with his PTSD symptoms. Looking back, no one talked about PTSD or received behavioral health treatment. He did not receive a fair trial or treatment for his PTSD and drug related problems. 3. The applicant provides Department of Veterans Affairs (VA) Progress Notes, dated 18 November 2015 and an Army Review Boards Agency letter, dated 8 March 2016. 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 for 3 years on 27 November 1968. He completed training as a crawler tractor operator (crane operator). He served in Vietnam from 15 June 1969 through 14 June 1970. He was honorably released from active duty on 13 November 1971 as an overseas returnee from U.S. Army Europe. The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he received shows he completed 2 years, 11 months, and 17 days of total active service. 3. The applicant reenlisted in the RA on 19 May 1975. He was honorably discharged for the purpose of immediate reenlistment on 22 April 1979. He received a DD Form 214 for this period of service. He was discharged in pay grade E-5. He served for 3 years, 11 months and 4 days of active federal service during this period. At this point he had served a total of 9 years, 7 months, and 25 days of active federal service. He reenlisted on 23 April 1979. 4. Summary Court-Martial Order Number 12, issued by Headquarters Command, XVIII Airborne Corps and Fort Bragg, NC, dated 7 August 1980 shows that on 5 August 1980, the applicant was convicted by a summary court-martial for being absent without leave (AWOL) from 12 April until 19 May 1980. He was sentenced to a forfeiture of two-thirds pay for 1 month. 5. General Court-Martial Order Number 63, issued by Headquarters, Fort Carson and 4th Infantry Division (Mechanized), Fort Carson, CO, dated 16 September 1983, shows that on 13 June 1983, he was tried by a general court-martial for the following offenses: * one specification of wrongfully using marijuana, while wearing a uniform of the U.S. Army and in the presence of a Military Police Investigator (MPI) * one specification of possession of 2.86 grams, more or less, of cocaine with intent to distribute said cocaine to an MPI * one specification of distribution of 2.86 grams, more or less, of cocaine to an MPI * one specification of possession of 2,001 grams, more or less, of marijuana with intent to distribute said marijuana to an MPI * one specification of distribution of 2,001 grams, more or less, of marijuana to an MPI 6. His sentence was adjudged on 14 June 1983. He was sentenced to a dishonorable discharge, confinement at hard labor for 1 year, a reduction to pay grade E-1, and a forfeiture of all pay and allowances. 7. On 16 September 1983, the convening authority approved the sentence as adjudged and ordered that the record of trial be forwarded to the Judge Advocate General of the Army for review by a Court of Military Review. Pending completion of appellate review, the convening authority ordered the applicant confined to the U.S. Army Correctional Activity, Fort Riley, KS, or elsewhere as competent authority may direct. 8. On 3 April 1984, the U.S. Army Court of Military Review held the findings of guilty and the sentence as approved by the convening authority correct in law and fact, and affirmed the findings of guilty. 9. Orders 224-2, issued by the U.S. Army Correctional Activity, Fort Riley, KS, dated 19 November 1984, ordered the dishonorable discharge executed. 10. On 23 November 1984, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of a duly reviewed and affirmed general court-martial conviction. His DD Form 214 shows he completed 4 years, 9 months, and 16 days of net active service this period. As ordered, he received a dishonorable discharge. The narrative reason for separation shows he was separated as a result of a court-martial. His periods of lost time were from 12 April 1980 to 18 May 1980 and from 14 June 1983 to 16 February 1984. 11. The applicant provides two pages of his VA Progress Notes, dated 18 November 2015, showing he was diagnosed with PTSD and the content of his 60-minute session. These notes show he has a set treatment plan with set goals, objectives, and homework to be completed daily. 12. During the processing of this case, an advisory opinion was obtained from the Army Review Boards Agency (ARBA) psychiatrist who states: a. A DD Form 3822-R (Report of Mental Status Examination) dated 9 February 1984 was available in the applicant's personnel records. This examination shows he was mentally capable of understanding right from wrong, mentally responsible, and met military retention standards in accordance with chapter 3, Army Regulation 40-501 (Standards of Medical Fitness). c. Based on the available medical records, there is evidence the applicant suffered from PTSD during his military service, which is a behavioral health condition that is likely mitigating for some, but not all, of the offenses which led to his separation from the military. d. The applicant likely had undiagnosed PTSD while on active duty. Because PTSD can be associated with the use of illicit drugs for self-medication, there was likely a nexus between the applicant's marijuana and cocaine use and his PTSD. However, PTSD is not associated with the distribution of illicit drugs and would not be considered a mitigating factor for these offenses. 14. The applicant was forwarded a copy of the advisory opinion for his information and/or possible rebuttal. A response was not received. REFERENCES: 1. Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that 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. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. Clemency is an act of mercy or instance of leniency to modify the severity of the punishment imposed. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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. c. Paragraph 3-11 provides that a Soldier will be given a dishonorable discharge pursuant only to an approved sentence of a general court-martial. The appellate review must be completed and the affirmed sentence duly executed. 3. PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster. The DSM of Mental Disorders 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-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. 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 with an under other than honorable conditions 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 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. 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 dishonorable 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 previous court-martial conviction, 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 his PTSD systems/psychological issues, there is evidence the applicant suffered from PTSD during his military service, which is a behavioral health condition that is likely mitigating for some, but not all, of the offenses which led to his separation from the military. When reviewing his completed record a psychiatrist opined that his overall behavioral health issues are not associated with the distribution of illicit drugs. His behavioral health issues would not be considered a mitigating factor for his offenses that would support clemency. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010206 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010206 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2