IN THE CASE OF: BOARD DATE: 10 November 2016 DOCKET NUMBER: AR20150013219 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: 10 November 2016 DOCKET NUMBER: AR20150013219 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: 10 November 2016 DOCKET NUMBER: AR20150013219 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, in effect, a change to the narrative reason for separation and upgrade of his bad conduct discharge. 2. The applicant states that he deployed to Iraq in support of Operation Iraqi Freedom 3 (OIF-3) and he saw quite a lot of combat. The artillery rounds made him jumpy and nervous to the point that he slept under his cot. a. He started to experience symptoms of PTSD during field training exercises (FTXs). He reported this to his noncommissioned officers (NCOs), but they brushed it off as him trying to avoid FTXs. He began staying away from crowded spaces. At the time, he was unaware of what he was going through, and this led to his absence without leave (AWOL) and eventual desertion. b. When he returned to military control (RMC), his lawyer had him evaluated by a psychiatrist who diagnosed the applicant with post-traumatic stress disorder (PTSD). The doctor testified at the court-martial on his behalf, but the NCOs were not available to testify. He adds that he is ineligible for veterans' benefits (medical treatment) because of his bad conduct discharge. 3. The applicant provides copies of five academic documents. 4. On 26 August 2016, the Chief, Case Management Division, Army Review Boards Agency, Arlington, VA, notified the applicant that in order for the Army Board for Correction of Military Records (ABCMR) to consider his application, he must provide a copy of the medical documents that support his issue of PTSD. He was afforded a period of 90 days to allow him the opportunity to provide the documentation. A response was not received from the applicant. 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 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 on 30 March 2004 for a period of 3 years and 16 weeks. 3. A review of his military personnel records regarding significant duty status changes shows: * present for duty (PDY) to AWOL, effective 8 May 2007 * AWOL to dropped from rolls, effective 9 May 2007 * apprehended by civil authorities on 8 January 2008 * RMC, effective 8 January 2009 * PDY to confined by military authorities (CMA), effective 23 September 2009 * CMA to PDY, effective 24 April 2010 * PDY to excess leave, effective 24 April 2010 through 30 March 2011 4. Headquarters, Fort Stewart, GA, General Court-Martial (GCM) Order Number 14, dated 20 May 2010, shows the applicant was tried by a GCM. He pled not guilty to and was found guilty of violation of the Uniform Code of Military Justice, (UCMJ), Article 85 (Unauthorized Absence/Desertion), for, on 8 May 2007, with the intent to avoid hazardous duty, namely Operation Iraqi Freedom V, quit his unit and did remain so absent in desertion until on or about 8 January 2009. a. On 23 September 2009, he was sentenced to be reduced to the grade of private (E-1), to be confined for 9 months, and to be discharged from service with a bad conduct discharge. b. On 20 May 2010, the GCM Convening Authority approved the sentence and ordered it duly executed, except for that part of the sentence extending to a bad conduct discharge. 5. Headquarters, U.S. Army Fires Center of Excellence, Fort Sill, OK, GCM Order Number 10, dated 24 January 2011, confirmed the applicant's court-martial sentence was affirmed. The portion of the sentence extending to confinement having been served, and the provisions of Article 71(c) having been complied with, the bad conduct discharge was ordered executed. 6. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he entered active duty this period on 30 March 2004 and he was separated on 31 March 2011 with a bad conduct discharge under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 3 (Character of Service/Description of Separation), as a result of court-martial, other. He completed 4 years, 8 months, and 28 days of net active service this period. It also shows in: * item 18 (Remarks), Service in Iraq from 23 January 2005 – 7 January 2006 * item 29 (Dates of Time Lost During This Period): 8 May 2007 – 8 January 2009; 23 September 2009 – 24 April 2010 7. In support of his application the applicant provided copies of academic documents that show he: * graduated with a High School Diploma, Tara High School, Baton Rouge, LA, on 12 May 2001 * was awarded the degree of Bachelor of Business Administration in Information Technology, Florida Institute of Technology, Melbourne, FL, on 25 June 2007 * officially scored an Intelligence Quotient of 121 (94.12 percentile) on 9 July 2007 * was awarded the degree of Master of Science in Engineering Management, Massachusetts Institute of Technology, Cambridge, MA, on 23 September 2010 8. In the processing of this case, an advisory opinion was obtained from the medical staff of the Army Review Boards Agency (ARBA), dated 8 September 2016. The ARBA senior medical advisor noted the applicant is petitioning for correction of his military discharge based on PTSD. a. A review of the applicant's electronic medical record in the Department of Defense (DoD) system (AHLTA) revealed: * Psychology Note (scheduled initial visit) on 16 March 2010 * Diagnosis of Adjustment Disorder with anxiety – * Axis II – deferred * Axis Ill – deferred * Axis IV – psychosocial and environmental problems – incarcerated * Axis V – GAF-61 * Intake physical exam (prison admission) on 25 November 2009 – normal, with review of symptoms/psychological symptoms: "hx [history] of PTSD 2004, no meds, but was getting counseling" * Social Work visit on 3 August 2009 with adjustment disorder with anxiety (Axis IV - legal problem) * Behavioral Health psychiatry evaluation, on 5 August 2009, via a Court Order 706 examination (4-hour evaluation) * Social Work command-directed evaluation, on 28 January 2009, for AR 635-200, chapter 14 (Misconduct), paragraph 14-12c, with "no history of psychiatric disorders, but reports prior outpatient medical health treatment" * No notes 2007 or 2008 (applicant was AWOL) * Social Work note regarding medical conference, on 19 December 2006, regarding relationship issues (marital problem) * DA Form 7517 (DA Child – Spouse Abuse Incident Report) submitted to Army Central Registry * Prior Social Work notes documenting marital problem follow-up * No diagnosis of PTSD found * No VA or medical documentation (2004 or earlier) provided for review b. The senior medical advisor noted the applicant met medical retention standards in accordance with AR 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), and following the provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant's era of service. c. He also noted that the applicant's medical conditions were duly considered during medical separation processing. d. He concluded that a review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. 9. On 7 September 2016, the applicant was provided a copy of the ARBA advisory opinion to allow him the opportunity (30 days) to submit comments or a rebuttal. A response was not received from the applicant. REFERENCES: 1. On 3 September 2014, in a memorandum (with attachment), 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 under other than honorable conditions (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. 2. 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. PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster. 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. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 3 prescribes the policies and procedures for separating members with a bad conduct discharge. It stipulates that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and affirmed before the sentence is ordered duly executed. b. Chapter 3, 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. c. Chapter 3, 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. 4. Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that the Board 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 applicant contends that the narrative reason for his separation should be changed and his bad conduct discharge should be upgraded because he served honorably during OIF-3; however, he then experienced mental health issues that caused his misconduct and resulted in his discharge. His academic achievements are noted. 2. The evidence of record shows the applicant served in Iraq during OIF-3 from 23 January 2005 to 7 January 2006. It also shows he: * went AWOL on 8 May 2007 * was apprehended and RMC on 8 January 2008 * was CMA from 23 September 2009 through 23 April 2010 3. He was tried and convicted at a GCM for desertion. The evidence of record shows a doctor testified on behalf of the applicant at his court-martial; however, that testimony is not available to the Board. 4. There is no evidence of record and the applicant provides no medical records that show he had an unfitting mental health issue (PTSD) during the period of service under review. 5. The evidence of record shows the Secretary of Defense's memorandum of 3 September 2014 instructs military corrections boards to liberally consider PTSD. a. The evidence or record shows the policy memorandum applies to those Soldiers who were administratively discharged UOTHC. The applicant was not administratively discharged; he was discharged as a result of court-martial with a bad conduct discharge. b. In that the applicant does not seek to upgrade an UOTHC administrative discharge, the Secretary of Defense's 3 September 2014 memorandum is not controlling in this case. 6. The applicant's trial by general court-martial was warranted by the gravity of the offenses for which he was charged. Conviction and discharge were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process, including the appellate review. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013219 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013219 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2