IN THE CASE OF: BOARD DATE: 2 February 2017 DOCKET NUMBER: AR20160002015 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: 2 February 2017 DOCKET NUMBER: AR20160002015 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: 2 February 2017 DOCKET NUMBER: AR20160002015 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, an upgrade of his under other than honorable conditions (UOTHC) characterization of service. 2. The applicant states he served in the U.S. Army and developed post-traumatic stress disorder (PTSD). He was sent to military prison in Fort Leavenworth, KS, instead of receiving help for his condition. He states that his conduct was based solely on his need to self-medicate due to suffering from PTSD. He struggled through most of his life not understanding what was wrong with him and why he made decisions that led to mistakes in his life. He has been through many years of therapy and learned that, if he had received the help that he needed, he would have been able to deal with the PTSD. He adds that he would have separated from the U.S. Army with an honorable discharge. 3. The applicant provides copies of his DD Form 214 (Report of Separation from Active Duty) and a Department of Veterans Affairs (VA) letter. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army (RA) on 18 February 1971 for a period of 3 years. He was awarded military occupational specialty 76S (Automotive Repair Parts Specialist) and he: * served in Vietnam from 29 January 1972 to 11 August 1972 * was promoted to specialist four (SP4)/pay grade E-4 on 10 March 1972 2. A DD Form 214 shows the applicant was honorably discharged on 28 May 1973 under the provisions of (UP) Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) for the purpose of immediate reenlistment. He had completed 2 years, 3 months, and 11 days of net active service this period that included 6 months and 13 days of foreign service. 3. The applicant reenlisted in the RA on 29 May 1973 for a period of 4 years. He served in Thailand from 2 October 1973 to 19 September 1974. 4. The applicant accepted nonjudicial punishment for violation of the Uniform Code of Military Justice (UCMJ), Article 91, on 4 February 1974, for striking a noncommissioned officer in the face with his fist on 29 January 1974. 5. On 16 October 1974, he was assigned to Fort Benning, GA. Records shows he was: * apprehended by civil authorities on charges of aggravated assault on 14 April 1975 * absent without leave (AWOL) on 23 July 1975 and 18 November 1975 * confined by military authorities on 18 November 1975 * hospitalized (not in line of duty) from 19 to 21 November 1975 6. Headquarters, U.S. Army Infantry Center, Fort Benning, GA, General Court-Martial (GCM) Order Number 9, dated 8 April 1976, shows the applicant was tried by a GCM. a. He pled guilty to and was found guilty of violation of the UCMJ: * Article 134 (four specifications), for – * on 3 November 1975, wrongfully having in his possession one (1) ounce, more or less, of marijuana * on 3 November 1975, wrongfully selling marijuana * on 5 November 1975, wrongfully having in his possession four (4) ounces, more or less, of marijuana * on 5 November 1975, wrongfully selling marijuana * Article 80, for, on 18 November 1975, attempting to sell a habit forming narcotic drug; to wit: heroin b. On 13 February 1976, he was sentenced to be discharged from service with a dishonorable discharge, to forfeit all pay and allowances, to be reduced to the grade of private (E-1), and to be confined at hard labor for 33 months. c. On 8 April 1976, the GCM Convening Authority approved so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for one (1) year, forfeiture of $200 per month for 12 months, and reduction to the grade of private (E-1). He ordered the applicant be confined in the United States Disciplinary Barracks (USDB), Fort Leavenworth, KS. He also directed the record of trial be forwarded to The Judge Advocate General of the Army for review by a Court of Military Review. 7. A review of the applicant's military personnel records failed to reveal a copy of the action taken by the U.S. Army Court of Military Review action. 8. The applicant was restored to duty, effective 19 November 1976, pending completion of appellate review. 9. On 13 October 1977, the Deputy Clerk of Court, United States Court of Military Appeals, notified the Commander, USDB, Fort Leavenworth, KS, that the applicant's petition for a grant of review was denied. 10. Headquarters, USDB, Fort Leavenworth, KS, GCM Order Number 1026, dated 19 October 1977, confirmed the applicant's court-martial sentence was affirmed. The provisions of Article 71(c) having been complied with, the bad conduct discharge was ordered duly executed. 11. On 26 September 1978, the Assistant Adjutant, USDB, Fort Leavenworth, KS, notified the applicant to contact the nearest military medical facility within 3 days to obtain an appointment for a separation medical examination. 12. Headquarters, USDB, Fort Leavenworth, KS, Orders Number 27-12, dated 8 February 1979, discharged the applicant effective 8 February 1979. 13. The applicant's DD Form 214 shows he entered active duty this period on 29 May 1973 and he was separated on 8 February 1979 with an UOTHC character of service UP AR 635-200, paragraph 11-2, as a result of court-martial. He had completed 4 years, 8 months, and 2 days of net active service this period and he had 368 days of time lost. 14. On 25 May 1983, the Army Board for Correction of Military Records (ABCMR) denied the applicant's request for upgrade of his discharge. 15. In support of his application the applicant provides a VA Medical Center (Atlanta) letter, dated 6 December 2011, that shows he was diagnosed with chronic PTSD and major depressive disorder. Additional information pertaining to the results of a review of the available medical records by a medical professional is provided in paragraph 16, below. 16. In the processing of this case, an advisory opinion was obtained from the medical staff of the Army Review Boards Agency (ARBA), dated 30 November 2016. a. The ARBA staff psychiatrist stated the applicant is applying to the ABCMR requesting his discharge be upgraded based on undiagnosed PTSD at the time, which led to his misconduct and discharge. Her review considered information provided by the ABCMR that included the applicant's application and personal statement, VA medical documentation, and military personnel/medical records. She noted that the Department of Defense (DoD) electronic medical record (AHLTA) was not reviewed as the system was not in use during the applicant's time in service. b. She noted the VA medical documentation the applicant provided consists of a letter written by Edward M. V____, PhD, Staff Psychologist and Team Leader, Chronic PTSD Treatment Team, Trauma Recovery Program, VA Medical Center, Decatur, GA, dated 6 December 2011. Dr. V____ diagnosed the applicant with chronic PTSD and chronic major depressive disorder, both related to the applicant's military experiences, his exposure to enemy fire, and him witnessing the loss of life of fellow Soldiers during his service in Vietnam. c. The applicant acknowledged his drug use began in Vietnam and that it escalated while he was stationed in Thailand because of the increased availability of drugs. He stated he was "entrapped" by criminal investigation division agents at Fort Benning, arrested, and convicted of drug charges. d. The staff psychiatrist found the applicant's military medical records are void of any symptoms of PTSD. The is no indication that he failed to meet medical retention standards of AR 40-501 (Standards of Medical Fitness) 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. e. Her review of the applicant's records found no symptoms of PTSD per se. However, this does not necessarily indicate that the applicant did not have PTSD while in the military. The applicant has since been diagnosed with PTSD due to his military service by his VA psychologist. Based on this documentation, it is reasonable to assume that the applicant developed PTSD while on active duty from his combat experiences in Vietnam. f. The ARBA psychiatrist concluded, based on the available documentation, it is her opinion that the applicant has a behavioral health condition (PTSD) which is mitigating for some, but not all, of the offenses which led to his separation from the Army. Because PTSD is associated with the use of substances to self-medicate symptoms, there is likely a nexus between the applicant's PTSD and the offense of marijuana possession. PTSD is considered mitigating for this offense. PTSD is not associated with the selling of illegal drugs and, therefore, is not mitigating for the offenses of selling marijuana and attempting to sell heroin. 17. On 2 December 2016, the applicant was provided a copy of the ARBA advisory opinion to allow him the opportunity to submit comments or a rebuttal. 18. On 11 December 206, the applicant stated that he disagrees with the ARBA advisory official's statement that his PTSD is not associated with the selling of illegal drugs. As indicated in his file, this was a very stressful time for him and he resorted to using illegal drugs to cope. His pay was extremely low and he could not support his daily heroin addiction that he developed as a direct result of his (then undiagnosed) PTSD. The only way he could afford his heroin addiction was to sell good quality marijuana that yielded a good return. All that he could think about on a daily basis was getting the next hit and how to come up with the money to get it. He can now see how his behavior endangered his life and career in the Army. He asks the Board to change his discharge to honorable. REFERENCES: 1. 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." 2. 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. 3. 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, along with 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. 4. 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 UOTHC 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. 5. In view of the foregoing, on 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards 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. 6. 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? 7. Although DoD acknowledges that some Soldiers who were administratively discharged UOTHC 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 UOTHC 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 UOTHC. 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. 8. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. Chapter 3 (Character of Service/Description of Service) 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. (At the time, the UOTHC characterization was associated with a sentence to a bad conduct discharge.) 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. 9. 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 his UOTHC characterization of service should be upgraded because the misconduct that led to his discharge was due to his undiagnosed PTSD that resulted from traumatic experiences from his service in Vietnam. 2. The applicant enlisted in the RA on 18 February 1971 and he served in Vietnam from 29 January 1972 to 11 August 1972. a. He was issued a DD Form 214 documenting his honorable active duty service during the period 18 February 1971 through 28 May 1983. b. He reenlisted in the RA on 29 May 1973. 3. He was tried and convicted at a GCM of the charge (with four specifications) of the wrongful possession and selling of marijuana and also of the charge of attempting to sell heroin. His sentence included discharge from the service with a bad conduct (UOTHC) characterization of service. 4. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards and 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. An upgrade of the characterization of service to general, under honorable conditions offers the former Soldier eligibility for veterans' benefits. a. The applicant was not administratively discharged UOTHC; he was discharged UOTHC pursuant to an approved sentence of a GCM. b. In that the applicant does not seek to upgrade a UOTHC administrative discharge, the Secretary of Defense's 3 September 2014, memorandum is not controlling in this case. 5. 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. 6. The ARBA staff psychiatrist found the applicant met medical retention standards at the time of his discharge in February 1979. She also found that his PTSD does mitigate personal drug use, but not his drug dealing. 7. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. Any redress by this Board of the finality of a court-martial 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) AR20160002015 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002015 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2