BOARD DATE: 22 August 2017 DOCKET NUMBER: AR20160002094 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 BOARD DATE: 22 August 2017 DOCKET NUMBER: AR20160002094 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 to amend the decision of the ABCMR set forth in Docket Number AC89-08869 on 28 February 1990. ______________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. BOARD DATE: 22 August 2017 DOCKET NUMBER: AR20160002094 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 the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AC89-08869 on 28 February 1990. Specifically, he requests an upgrade of his bad conduct discharge (BCD) and a personal hearing before the Board. 2. The applicant states, in effect, post-traumatic stress disorder (PTSD) was the catalyst for his misconduct. He would like to receive treatment and counseling for PTSD. a. He served in the Army for 4 and 1/2 years. He earned the Parachutist Badge, Combat Infantryman Badge, and the Army Commendation Medal. He earned Vietnam awards too. He was on the front line in the jungle with his unit. b. He saw many of his friends and local people die. When he returned to the United States, he had a mental breakdown and did not receive help. He had to get away and missed his out-processing (date). That is why he got into trouble. 3. The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 10 July 1972 and a Mental Health Outpatient Services Assessment, dated 25 January 2017. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AC89-08869 on 28 February 1990. 2. The applicant's provides a PTSD assessment that shows he has been suffering from undiagnosed PTSD. This assessment constitutes new evidence that was not considered by the Board in its initial consideration of his case. Therefore, this new evidence now warrants consideration. 3. The applicant enlisted in the Regular Army on 26 January 1968. He completed his initial entry training and was awarded military occupational specialty 05C (Radio Teletype Operator). 4. The applicant served in the Republic of Vietnam from on or about 6 June 1969 through on or about 5 June 1970, a period of 12 months. He was promoted to the temporary rank of sergeant (SGT)/E-5 on 25 October 1969. 5. A DA Form 20B (Insert Sheet to DA Form 20 (Enlisted Qualification Record) Record of Court-Martial Conviction) notes the following: a. Special Court-Martial Order Number 4, issued by Headquarters, 173rd Airborne Brigade, on 7 January 1970, notes he was convicted of violating Article 128 of the Uniform Code of Military Justice (UCMJ), specifically for pointing a loaded rifle at his first sergeant on or about 11 December 1969. The court sentenced him to confinement for 2 months with hard labor for 1 month, suspended for 2 months; to forfeit $40.00 per month for 2 months; and to be reduced to private (PVT)/E-1. The sentence was adjudged on 2 January 1970 and approved on 7 January 1970. b. General Court-Martial Order Number 3, issued by Headquarters, U.S. Army Air Defense Center and Fort Bliss on 14 January 1972, shows he was convicted of violating Article 86 of the UCMJ, specifically for being absent without leave (AWOL) from on or about 14 September 1970 through on or about 7 November 1971. The court sentenced him to be discharged from the service with a BCD. The sentence was adjudged on 17 December 1971 and approved on 14 January 1972. 6. The Court of Military Review affirmed the guilty finding and approved the sentence on 14 April 1972. The U.S. Court of Military Appeals denied his petition for review. The general court-martial convening authority ordered, on 22 June 1972, the sentence to be fully executed. 7. The applicant was discharged on 10 July 1972. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 11, as a result of court-martial, with his service characterized as under other than honorable conditions. He was issued a DD Form 259A (BCD Certificate). Among his authorized awards are the Combat Infantryman Badge and the Army Commendation Medal. He served for 3 years, 3 months, and 21 days and had 419 days of lost time. 8. The applicant's record is void of evidence showing he was diagnosed with PTSD or suffered from PTSD-like symptoms during his period of military service. His record contains no evidence of indiscipline prior to his arrival in Vietnam. 9. The applicant did not apply to the Army Discharge Review Board for an upgrade of his discharged within its 15-year statute of limitations. 10. The applicant petitioned the ABCMR for an upgrade of his discharge. On 28 February 1990, the ABCMR denied his request due to lack of sufficient justification to support an upgrade. 11. The applicant provides a Mental Health Outpatient Services Assessment, dated 25 January 2017, which notes: * he was initially seen on 3 January 2017, in order to coordinate treatment with a Department of Veterans' Affairs (VA) hospital * a licensed professional counselor (LPC) recorded concerns the applicant reported, to include a history of trauma caused by the Vietnam War * he was disoriented to person, place, time, and situation * some anger noted, more directed at the government and society * complaints of night terrors, unable to sleep, anxious and fearful of being out in public, and hypervigilant * no suicidal ideations or homicidal thoughts * his visions, flashbacks, anxiety and fear has gotten worse * suffers from PTSD, untreated and undiagnosed, with depressive features due to his service in Vietnam * recommendation to see a psychiatrist for medication and a psychological evaluation for more integrated services * he wants to get things right in his mind and with his emotions before something really bad happens 12. In the processing of this case, an advisory opinion was obtained on 14 February 2017 from an Army Review Boards Agency (ARBA) Medical Advisor, a psychologist. The advisory official noted and opined: a. He received the first of two court-martials during his Vietnam service. He was charged and pled guilty during a special court-martial to pointing a loaded rifle at his first sergeant after having also fired the weapon into the air to gather everyone's attention. b. He experienced family problems while serving in Vietnam. His wife allegedly became neglectful towards their child and was also allegedly pregnant by another man, which he found out upon his return to the United States. The difficulties led to prolonged AWOLs that resulted in a general court-martial. The general court-martial imposed a sentence that included a BCD. In reaching this decision, the court-martial did consider the applicant's prior special court-martial conviction. c. The applicant is now contending that his multiple instances of misconduct were caused by PTSD. He provided insufficient evidence that he has a PTSD diagnosis. Any Board should be made aware that the applicant's intellectual functioning is not strong. His general technical (GT) score is 66, and his Armed Forces qualification test score is 18, which placed him in the lowest group of individuals eligible for service at that time. He had limited education before his enlistment and his record shows he left school after ninth grade. Persons with his level of intelligence are less likely than their more intelligent peers to identify good solutions to their difficulties, for example, going to the chain of command, consulting a chaplain, or seeking behavioral health assistance. d. Based on available behavioral-health evidence, there is insufficient evidence to mitigate his misconduct; however, his limited intelligence diminished his ability to arrive at good solutions to his problems, and his case did seem to have been handled with greater than usual severity by his command. e. The applicant did meet medical retention standards at his time of discharge. His mental-health conditions were not considered at the time of his discharge. f. A review of available documentation did not discover evidence of a mental-health condition that is sufficient to change the character of the discharge in this case. A nexus between his misconduct and his mental health was not discovered. 13. The applicant was provided a copy of the advisory opinion on 15 February 2017, to provide him an opportunity to comment and/or submit a rebuttal. He did not respond. REFERENCES: 1. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel: a. 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. b. 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. c. Chapter 11 provided that an enlisted person would be given a BCD pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review, and after such affirmed sentence has been ordered duly executed. The service of Soldiers sentenced to a BCD was to be characterized as under conditions other than honorable. 3. 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. 4. 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." 5. 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. 6. 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 includes 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. a. Criterion A, stressor: The person was exposed to: death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence, as follows: (one required) (1) Direct exposure. (2) Witnessing, in person. (3) Indirectly, by learning that a close relative or close friend was exposed to trauma. If the event involved actual or threatened death, it must have been violent or accidental. (4) Repeated or extreme indirect exposure to aversive details of the event(s), usually in the course of professional duties (e.g., first responders, collecting body parts; professionals repeatedly exposed to details of child abuse). This does not include indirect non-professional exposure through electronic media, television, movies, or pictures. b. Criterion B, intrusion symptoms: The traumatic event is persistently re-experienced in the following way(s): (one required) (1) Recurrent, involuntary, and intrusive memories. (2) Traumatic nightmares. (3) Dissociative reactions (e.g., flashbacks) which may occur on a continuum from brief episodes to complete loss of consciousness. (4) Intense or prolonged distress after exposure to traumatic reminders. (5) Marked physiologic reactivity after exposure to trauma-related stimuli. c. Criterion C, avoidance: Persistent effortful avoidance of distressing trauma-related stimuli after the event: (one required) (1) Trauma-related thoughts or feelings. (2) Trauma-related external reminders (e.g., people, places, conversations, activities, objects, or situations). d. Criterion D, negative alterations in cognitions and mood: Negative alterations in cognitions and mood that began or worsened after the traumatic event: (two required) (1) Inability to recall key features of the traumatic event (usually dissociative amnesia; not due to head injury, alcohol, or drugs). (2) Persistent (and often distorted) negative beliefs and expectations about oneself or the world (e.g., "I am bad," "The world is completely dangerous"). (3) Persistent distorted blame of self or others for causing the traumatic event or for resulting consequences. (4) Persistent negative trauma-related emotions (e.g., fear, horror, anger, guilt, or shame). (5) Markedly diminished interest in (pre-traumatic) significant activities. Feeling alienated from others (e.g., detachment or estrangement). (6) Constricted affect: persistent inability to experience positive emotions. e. Criterion E, alterations in arousal and reactivity: Trauma-related alterations in arousal and reactivity that began or worsened after the traumatic event: (two required) (1) Irritable or aggressive behavior (2) Self-destructive or reckless behavior (3) Hypervigilance (4) Exaggerated startle response (5) Problems in concentration (6) Sleep disturbance f. Criterion F, duration: Persistence of symptoms (in Criteria B, C, D, and E) for more than one month. g. Criterion G, functional significance: Significant symptom-related distress or functional impairment (e.g., social, occupational). h. Criterion H, exclusion: Disturbance is not due to medication, substance use, or other illness. 7. 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 (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 of time. 8. 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. 9. 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? 10. 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. a. 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. b. 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. c. Correction 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. The applicant requests an upgrade of his BCD and a personal hearing before the Board. He contends PTSD contributed to the misconduct leading to his discharge. 2. The applicant served 12 months in Vietnam and during this service he received the Combat Infantryman Badge. His record is void evidence of misconduct prior to his deployment. However, his record does show he pointed a loaded rifle at his first sergeant while in Vietnam and had a lengthy period of AWOL after he returned from Vietnam, which he attributed to mental stress and marriage concerns. 3. The applicant received a BCD pursuant to an approved sentence of a general court-martial, which was warranted by the gravity of the offenses charged at the time. His conviction and discharge were effected in accordance with applicable laws and regulations, and the discharge appropriately characterizes the misconduct for which he was convicted. The appellate review was completed and the affirmed sentence ordered duly executed. All requirements of law and regulation were met and his rights were fully protected. 4. At the time of the applicant's discharge, PTSD was largely unrecognized by the medical community and DoD. However, both the medical community and DoD now have a more thorough understanding of PTSD and its potential to serve as a causative factor in a Soldier's misconduct when the condition is not diagnosed and treated in a timely fashion. 5. Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible re-characterization of their overall service. 6. There is no evidence during the applicant's period of military service showing he suffered from PTSD-like symptoms. The evidence he provides shows he first reported PTSD symptoms to a health care provider in January 2017 (45 years after his BCD). 7. An ARBA Medical Advisor opined after a review of the applicant's limited medical records that there is insufficient evidence to support the existence of a mitigating mental-health condition at the time of his service that could be attributed to his multiple acts of misconduct. The Medical Advisor did note the applicant's lack of a high school diploma and low military entrance test scores, placing him in the lowest intellectual group of individuals accepted into military service. The Medical Advisor opined that individuals with the applicant's level of intelligence are less likely than their more intelligent peers to identify good solutions to their difficulties. 8. The applicant's record of service during the period in question did not meet the standards of acceptable conduct and performance of duty for Army personnel. 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. 9. The applicant's request for a personal appearance hearing was carefully considered. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016310 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002094 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2