IN THE CASE OF: BOARD DATE: 29 November 2016 DOCKET NUMBER: AR20150012638 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 November 2016 DOCKET NUMBER: AR20150012638 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the Army Board for Correction of Military Records (ABCMR) set forth in Docket Number AR20130021792 on 31 July 2014. __________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 November 2016 DOCKET NUMBER: AR20150012638 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: a. He is requesting clemency based on his post-service activities and accomplishments. He is serving a life sentence in the State of Virginia and has been up for parole since January 2006. His civilian life legal problem has no bearing on his military service or court-martial. He is deeply sorry and regretful for the actions that resulted in his court-martial. Now that he is much older, he realizes that there were other ways for him to handle his problems at that time. He should have been strong enough to admit that he had problems that he could not solve alone. If given the chance to do things differently he would exercise better judgment. He has spent the better part of 20 years attempting to correct many of the wrongs in his life. He will be reentering society and would like to have a fresh start at a new life. b. He is not fighting the court-martial because of his limited knowledge of military law. Based on his limited access to information, he has weak evidence pertaining to post-traumatic stress disorder (PTSD). He believes he served satisfactorily during his period of military service. He fought in combat for his country. He gave his all even though it was not enough to be a complete and honorable Soldier. He was awarded the Army Good Conduct Medal for 3 years of service before his court-martial. c. He believes his military service should be characterized as general, under honorable conditions, because he was close to completing his term of service and fell short due to personal reasons. He was raised by military parents and had never been in trouble before joining the military or during his period of service before his court-martial. He does not want his 57 days in confinement to cost him for the rest of his life. If anyone deserves a second chance, it should be a Soldier who went to combat for his country. 3. The applicant provides two character letters and two achievement certificates. 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 (ABMCR) in Docket Number AR20130021792 on 31 July 2014. 2. Based on the applicant's new argument that he has PTSD, his application is being reviewed. 3. The applicant enlisted in the Regular Army (RA) on 15 March 1989 and he held military occupational specialty (MOS) 19D (Cavalry Scout). 4. On 7 December 1992, he was convicted by a general court-martial of two specifications of wrongfully appropriating government property and one specification of making a false official statement. The court sentenced him to reduction to pay grade E-1, confinement for 57 days (suspended for 1 year), forfeiture of $100.00 pay for 2 months, and a bad conduct discharge. 5. On 29 January 1993, the convening authority approved the sentence, and except for the bad conduct discharge, ordered it duly executed. The applicant was placed on involuntary excess leave pending the appellate review. 6. Headquarters, U.S. Army Field Artillery Center and Fort Sill, OK, General Court-Martial Order Number 39, dated 11 April 1994, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the applicant's sentence executed. 7. The applicant was discharged in pay grade E-1 on 2 May 1994, under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 3, as a result of court-martial. He completed 4 years, 11 months, and 24 days of active service and had 57 days of time lost. His service was characterized as bad conduct. His DD Form 214 does not show he served overseas (foreign service) or in an area where hostile fire pay was issued due to combat operations. 8. His service medical records are not available for review. 9. He is currently serving a life sentence in the custody of the Virginia Department of Corrections. 10. On 8 October 2013 and 31 July 2014, the ABCMR denied his petitions for an upgrade of his discharge. 11. He provided the following: * two character letters, dated 22 and 28 January 2015, wherein the individuals from the Virginia Department of Corrections attested to the applicant's excellent work history in their wood/medal shop * two achievement certificates, dated 28 January 2015, from the Virginia Correctional Enterprise 12. On 5 April 2016, the Army Review Boards Agency (ARBA) requested the applicant provide medical documentation to support his issue of PTSD. 13. In his response, dated 10 April 2016, he provided a Forensic Psychological Evaluation (previously considered by the ABCMR in 2014), dated 25 March 1994, showing he underwent a pre-sentencing sex offender evaluation at the Woodburn Center for Community Mental Health pertaining to his charges of abduction, kidnapping, rape, sodomy, and robbery. The report shows he was diagnosed with alcohol dependence, PTSD, and a personality disorder, not otherwise specified (NOS), with anti-social features. During the evaluation, the applicant indicated his PTSD was the result of his wartime experiences in Panama. 14. On 29 September 2016, an advisory opinion was provided by the Medical Staff Psychiatrist, ARBA. The ARBA psychiatrist referenced the Diagnostic and Statistical Manual, 5th Edition; AR 40-501 (Standards of Medical Fitness), dated 4 August 2011; and AR 635-200 (Active Duty Enlisted Administrative Separations), dated 6 September 2011. The ARBA psychiatrist stated: a. The applicant enlisted in the Army on 15 March 1989 in the MOS 19D. His first and only duty assignment was in Fort Polk, LA. He was discharged from the military on 2 May 1994 with a bad conduct discharge for wrongful misappropriation of government property. He has applied to the ABCMR twice before in 2013 and in 2014. In both instances, relief was denied. He is now applying to the ABCMR for the third time requesting clemency based on his PTSD and post-service accomplishments. b. The ARBA psychiatrist was asked to determine if the applicant met the criteria for a diagnosis of PTSD at the time of his discharge from the Army. Documentation reviewed included the applicant's ABCMR application, his military records, and a copy of a pre-sentencing Forensic Psychological Evaluation, dated 25 March 1994. c. Review of the pre-sentencing Forensic Psychological Evaluation completed by the Fairfax/Falls Church Community Services Board indicates he was diagnosed with alcohol dependence; PTSD (secondary to trauma he reported experiencing while serving in the military in Panama); and personality disorder, NOS, with antisocial features. d. The applicant's military records did not indicate any assignments to Panama. There was no evidence in the available military records that he met the criteria for PTSD or any other psychiatric disorder while he was in the Army. There is no evidence in the available military records that he was unable to tell right from wrong or that he failed to meet military medical retention standards in accordance with AR 40-501, chapter 3 and provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant's era of service. e. The only supporting medical documentation provided by the applicant was a pre-sentencing Forensic Psychological Evaluation which diagnosed him with PTSD. That diagnosis was based entirely on history given by the applicant with no concomitant corroboration of facts. There is insufficient evidence to determine there was a nexus between any behavioral health or medical condition the applicant may have had and the misconduct which led to his separation from the Army. 15. The advisory opinion was provided to the applicant on 3 October 2016 for acknowledgement/rebuttal. He did not respond. REFERENCES: 1. AR 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. The regulation stated in: a. Paragraph 3-11 – a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general court-martial after completion of appellate review and after such affirmed sentence had been ordered duly executed. b. Paragraph 3-7a – an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. c. Paragraph 3-7b – a general discharge was a separation from the Army under honorable condition. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 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 change a court-martial 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. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards and Service BCMR/NR to carefully considered the revised PTSD criteria, detailed medical consideration, and mitigating factors when taking actions on applications from former service members administratively discharged (emphasis added) and who had 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. In these cases, PTSD was not recognized as a diagnosis at the time of service and, in many cases, diagnoses were not made until decades after service was completed. Liberal consideration would also be given in cases where civilian providers confer diagnoses of PTSD or PTSD-related conditions, when case records contained narratives that supported symptomatology at the time of service, or when any other evidence which could reasonably indicate PTSD or a PTSD-related disorder existed at the time of discharge which might had mitigated the misconduct that caused the under other than honorable condition characterization of service. DISCUSSION: 1. The applicant was convicted by a general court-martial and was sentenced to a bad conduct discharge. His discharge was affirmed and he was discharged accordingly on 2 May 1994. 2. His record is void of any evidence his court-martial was unjust or inequitable. Without evidence to the contrary, trial by court-martial was warranted by the offenses charged. His conviction and discharge were effected in accordance with applicable laws and regulations with due process with no violation of his rights. 3. The advising psychiatrist found there is insufficient evidence to determine there was a nexus between any behavioral health or medical condition the applicant may have had and the misconduct which led to his separation from the Army. 4. Any redress by this Board of the finality of a court-marital conviction is prohibited by law. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012638 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012638 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2