IN THE CASE OF: BOARD DATE: 7 February 2017 DOCKET NUMBER: AR20150014971 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: 7 February 2017 DOCKET NUMBER: AR20150014971 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: 7 February 2017 DOCKET NUMBER: AR20150014971 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 bad conduct discharge (BCD) based on post-traumatic stress disorder (PTSD). 2. The applicant states, in effect, his BCD was erroneous because a psychiatric examination was required and not conducted. He was unaware he had PTSD at the time of discharge and he applying now due to the change in standards (i.e., publication of the "Hagel Memorandum"). There were mitigating circumstances and PTSD was not recognized at the time. He is grateful for his time in the military and the opportunity to serve his country. Even with the stigma of a court-martial conviction he has always worked, supported his family, and helped other veterans. 3. The applicant provides: * a 7-page summary of his case * letter, dated 6 February 2015, from a Department of Veterans Affairs (VA) doctor * letter, dated 14 August 2015, from his son * letter, dated 20 August 2015, from his granddaughter * letter, dated 1 November 2000, from his then employer * letter, dated 18 August 2015, from a quality control supervisor at his job * letter, dated 13 August 2015, from the Pointman Soldiers Heart Ministry, a veterans' service organization * documents from his record of trial and appeal, service record, medical records that are designated Exhibit A through Exhibit X 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 AC94-10530 on 13 March 1996. 2. On 16 December 1981, the applicant reenlisted in the Regular Army with previous honorable enlisted service. The highest rank/pay grade he achieved was staff sergeant/E-6 and he served in military occupational specialty 12B (combat engineer). 3. He deployed with his unit, the 16th Engineer Battalion, in support of Operation Desert Shield/Operation Desert Storm from 23 December 1990 to 28 April 1991. 4. The previous ABCMR Record of Proceedings and various orders and records that are available show, in pertinent part, that: a. During the Persian Gulf War, on the morning following the opening night of the air offensive against Iraq, the applicant was offended when he thought he overheard a private criticizing his demeanor during those tense hours of darkness. b. On 17 January 1991, the applicant forced the private to drop and do push-ups, threatened to kick him, and threatened him with his M-16 rifle. 5. A general court-martial was convened to try the applicant on associated charges: a. The charges of threatening to injure the Soldier and pointing a loaded firearm at him were withdrawn because no one determined whether the weapon was actually loaded. b. On 30 March 1991, the applicant was convicted contrary to his pleas of assaulting another Soldier by pointing a weapon at him in violation of Article 128 of the Uniform Code of Military Justice (UCMJ) and for attempting to communicate at threat to kick the Soldier in violation of Article 80, UCMJ. c. The applicant was sentenced to reduction to pay grade E-1, a forfeiture of all pay and allowances, and a BCD. d. The findings and the sentence were approved, and except for the BCD which was suspended pending appeal, was ordered executed. 6. The U.S. Army Court of Military Review affirmed the findings and the sentence and the Court of Military Appeals declined to review the case. On 28 July 1992, Article 71(c) of the UCMJ having been complied with, the applicant was ordered discharged. 7. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 8 October 1992 with a BCD. Item 25 (Separation Authority) shows he was discharged under the provisions of "AR 635-200, Chapter 3, Sec IV." 8. The applicant's 7-page letter describes his military service, his trial, and his submissions. His arguments include: a. Pages 154 and 155 of the record of trial [Exhibits C and D] show he was psychiatrically unfit to stand trial. b. Page 154 shows, in pertinent part, the military judge stated, “I believe the defense indicated to me that the accused had been cleared to stand trial, and had been cleared with respect to his --any issue of his sanity at the time of the offense, is that correct." Defense counsel responded, "That's correct your honor." c. Page 155 shows the defense counsel continued to explain that since this was a medical document some of it was privileged and should be redacted and he hadn't had time to do that yet. The judge was reluctant to admit a document he hadn't actually seen. He stated, "But again it is the position of the defense counsel having reviewed the documents there is no issue as to the mental status of or sanity of the accused, either with respect to the commission of the offense or his ability to stand trial at this time. Is that correct." Defense counsel responded, "That's correct." d. The applicant cites Exhibit E, dated 9 April 1991, which is a Chronological Record of Medical Care that shows “c/o depression, restlessness, insomnia. Felt no support from command-WH appellate due to anxiety - had recent court martial w/c he felt was not appropriate. Had made an appeal. I will be meeting w/the General to review his case.” e. He was diagnosed with adjustment disorder with mixed features. f. The applicant continues by describing the rest of his story from court-martial, to appeal process, discharge, the previous ABCMR case, and his medical history since 1994. g. He lists these specific contentions: (1) PTSD contributed to his misconduct. (2) He does not fully understand whether he has been tried by a general court-martial or administratively discharged under Army Regulation 635-200. (3) A division memorandum said an evaluation would be conducted within 7 days. (4) Failure to hold a sanity board as ordered by the division psychiatrist. (5) He met his senior defense council on 29 January 1991 and on 11 February he told his defense counsel he needed mental health help. (6) The mental health evaluation was not received by his defense by 12 February 1991. (7) He should have been given a psychiatric examination at the time of discharge. (8) A mental status evaluation was not performed. (9) His discharge was erroneous because a psychiatric examination was required to support a character and behavior disorder. (10) The command had the authority to administratively separate him without having to refer his case to a general court-martial. 9. During the processing of this case a medical advisory opinion was obtained from the Office of the Surgeon General. The Chief, Behavioral Health Division reviewed the available records and: a. Noted the applicant had been seen by the VA since 1998 and his intake evaluator concluded that PTSD can be ruled out in the absence of severe combat trauma, or exposure to death, or the threat of death. He was diagnosed with depressive disorder, not otherwise specified. (The advisory official erroneously listed the withdrawn charge related to maltreatment of a subordinate among the charges against the applicant.) b. Cited an October 2007 VA note that showed he was rated for PTSD, but also pointed out that his most intrusive thought concerning his experiences during the Gulf War was that of the court-martial. c. Concluded, "There is no indication that [the applicant] met the criteria for PTSD at the time of separation. However it is plausible that a BH condition such as combat stress reaction contributed to the misconduct that led to his BCD." 10. The applicant was provided a copy of the advisory for his response. He responded by stating he sent the Army Review Boards Agency all the psychiatric records that he had in support of his case on 22 August 2015. The new material evidence was received in March 1998, and was an intake evaluation on PTSD. He was treated by doctors and psychologists at the VA mental health clinic, Philadelphia, PA. There is nothing more to submit. The charge under Article 93, maltreatment of a subordinate was withdrawn by the Government prior to his pleas. REFERENCES: 1. Army Regulation 635-200 ( Personnel Separations-Enlisted Personnel) , Dishonorable and Bad Conduct Discharge) States that a Soldier will be given a dishonorable o discharge or a BCD only pursuant to the approve sentence of a general or special court martial. 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 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. 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. 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 Department of Defense 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 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 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. The Table of Maximum Punishments of the Manual for Courts Martial shows that a BCD is authorized for almost any assault and for communicating a threat. The authorized punishments for attempts mirror those for the underlying offense. 8. 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 applicant was discharged with a BCD as a direct result of a court-martial conviction and he was not separated by policies, regulations, or procedures related to administrative separations. The Secretary of Defense guidance issued in September 2014 that pertains to former service members who were administratively discharged under other than honorable conditions. 2. The applicant’s contention that PTSD contributed to the behavior that led to his discharge is undermined by the 1998 VA intake evaluator who concluded PTSD can be ruled out in the absence of severe combat trauma, or exposure to death, or the threat of death. Additionally, as late as 2007 a VA mental health practitioner noted the applicant's most intrusive thought about his wartime experience was the court-martial itself. 3. Any and all arguments relating to his mental health evaluations, a sanity board, and his capacity to stand trial were resolved before his trial began. Those parts of the record of trial that the applicant cites to substantiate his claims show his defense counsel specifically asserted (twice) the applicant was fit to stand trial. 4. There is no confusion about the applicant's status. He received a BCD as a result of a general court-martial. His DD Form 214 cites Army Regulation 635-200, chapter 3, section IV, which validates the type of discharge he received. 5. The applicant is correct his command had the authority to administratively discharge him. However, the general court-martial convening authority, whose approval of an administrative discharge was also required, chose to refer his case to a court-martial, and there is no apparent impropriety or inequity in that decision. 6. Trial by court-martial was warranted by the gravity of the offenses charged and his conviction and discharge were effected in accordance with applicable laws and regulations. 7. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014971 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014971 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2