IN THE CASE OF: BOARD DATE: 4 January 2018 DOCKET NUMBER: AR20160002797 BOARD VOTE: ____x____ ___x___ ____x___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 4 January 2018 DOCKET NUMBER: AR20160002797 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by voiding his existing DD Form 214 and issuing him a new DD Form 214 showing his character of service as general under honorable conditions. _____________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: 4 January 2018 DOCKET NUMBER: AR20160002797 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 bad conduct discharge. 2. The applicant states, in effect, he is seeking treatment through the Southeast Louisiana Veterans Health Care System for post-traumatic stress disorder (PTSD) and adjustment or anxiety disorder. 3. The applicant provides: * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 18 May 1970 * page 1 of his DD Form 4 (Enlistment Contract – Armed Forces of the United States), dated 19 May 1970 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 Army Board for Correction of Military Records (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 29 July 1968 for a period of 3 years. 3. He served as a helicopter repairman in Vietnam from 17 February 1969 to 2 May 1970. His records show he was wounded in action on 3 April 1969 in Vietnam. 4. On 18 May 1970, he was honorably discharged for immediate reenlistment. His DD Form 214 for the period ending 18 May 1970 shows, among other awards, award of the Purple Heart, Bronze Star Medal with "V" Device, and Air Medal with "V" Device. 5. On 19 May 1970, he reenlisted for a period of 6 years. 6. On 9 July 1970, nonjudicial punishment (NJP) was imposed against him for failing to go at the time prescribed to his properly appointed place of duty on 8 July 1970. 7. On 26 April 1971, NJP was imposed against him for being absent from his place of duty for 9 1/2 hours on 25 April 1971. 8. On 17 January 1972, he was convicted by a general court-martial of wrongful appropriation of a 2 1/2-ton truck; stealing Class A rations (value of $3,675.90); and being absent without leave from 23 October 1971 to 25 October 1971, from 27 October 1971 to 29 October 1971, and from 30 October 1971 to 16 November 1971. He was sentenced to confinement at hard labor for 18 months, forfeiture of $180.00 pay per month for 18 months, reduction to E-1, and a bad conduct discharge. On 7 March 1972, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for 15 months, forfeiture of $180.00 pay per month for 15 months, and reduction to pay grade E-1. 9. The DD Form 1479 (Prisoner Assignment and Clemency Board Action), dated 15 May 1972, shows the Fort Leavenworth Disposition Board voted 3-2 for restoration to duty. On 26 May 1972, the commander concurred with the minority vote of the Disposition Board, citing the applicant did not adjust well to the military prior to his confining offense and it was doubtful he could perform well now as a duty Soldier. He stated the nature of the confining offense mitigates against restoration. The applicant is assigned to a detail that will enhance his chances of finding suitable employment after he leaves confinement. Confinement will aid him in the maturation process and remission of the sentence to confinement in excess of 1 year is appropriate. 10. The U.S. Army Court of Military Review decision is not available for review. However, Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, General Court-Martial Order Number 1091, dated 18 September 1972, shows the applicant's sentence had been finally affirmed and, Article 71(c) having been complied with, the bad conduct discharge was ordered duly executed. 11. He was issued a bad conduct discharge on 16 October 1972 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, as a result of court-martial. He completed 3 years, 4 months, and 28 days of creditable active service with 295 days of lost time. 12. There is no evidence showing he was diagnosed with PTSD. 13. An advisory opinion was rendered by the Army Review Boards Agency Psychologist, dated 1 November 2017, wherein he stated: a. The applicant's records show he was exposed to trauma as he was awarded the Purple Heart, Bronze Star Medal for heroism, and Air Medal for valor. He reenlisted and committed misconduct during a second tour in Vietnam that led to his court-martial and incarceration. At the beginning of his incarceration, a psychiatrist recommended his restoration to duty. The recommendation was rejected because of an actual or suspected history of drug use. b. The applicant did not provide supplemental medical evidence to support his contentions. c. The available records reasonably support PTSD or another boardable behavioral health condition existed at the time of the applicant's military service. This condition did not fail medical retention standards. d. Behavioral health conditions were present at the time of the applicant's misconduct and were mitigating for the misconduct. The misconduct occurred after battle wounds and acts of valor. An examining psychiatrist at Fort Leavenworth favored the applicant's restoration to duty. The reasons offered for opposing a return to duty seemed centered on what were likely symptoms of the applicant's PTSD. e. The applicant met medical retention standards. f. The applicant's medical conditions were duly considered during medical separation processing. In fact, the psychiatric evaluator recommended his restoration to duty. g. A review of the available documentation found sufficient evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. Based on the information available for review at the time, the applicant had mitigating medical or behavioral health conditions for the offenses that led to his separation from the Army. 14. A copy of this advisory opinion was provided to the applicant for comment and/or rebuttal. He did not respond. 15. On 5 December 2017, the Army Review Boards Agency Psychologist rendered an amended advisory opinion for clarification. The following two paragraphs were amended to read: a. Behavioral health conditions were present at the time of the applicant's misconduct and were mitigating for the misconduct. "The misconduct occurred after battle wounds and acts of valor. An examining psychiatrist at the [sic] Fort Leavenworth favored the applicant's restoration to duty. The reasons offered for opposing a return to duty seemed centered on what were likely symptoms of the applicant's PTSD. The [Disposition Board] majority supporting restoration duty [sic] to duty understood all specifications that had been filed against the applicant, including the thefts." b. "A review of the available documentation found sufficient evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. Based on the information available for review at the time, the applicant had mitigating medical or behavioral health condition(s) for the offenses that led to his separation from the Army. The opinion to mitigate all misconduct is based on the judgement of the psychiatrist who examined the applicant after the occurrences of his court-martial offenses, an opinion supported by the majority of a restoration committee assembled when the applicant was still in the Army. I found no grounds in the records to reject the opinion of the psychiatrist who had first had [firsthand] knowledge of the applicant's mental status near the time of his misconduct. As an aside, the ground offered by the Colonel who overruled the committee's decision seemed poorly supported by the evidence available at the time he reached his decision to overrule the majority. He seems to have given extreme weight to one junior officer's opinion." REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for 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, in effect at the time, stated a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 2. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 3. The Diagnostic and Statistical Manual of Mental Disorders (DSM), chapter 7, addresses trauma and stress or related disorders. The DSM is published by the American Psychiatric Association (APA) and provides standard criteria and common language for classification of mental disorders. 4. In 1980, the APA added PTSD to the third edition of its DSM nosologic classification scheme. Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice. From a 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 fifth edition of the DSM 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 criterion 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; or (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; or (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 or (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); and (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, and (6) sleep disturbance. f. Criterion F – Duration: Persistence of symptoms (in Criteria B, C, D, and E) for more than 1 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 (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 Soldiers' 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 a 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. On 3 September 2014 in view of the foregoing information, 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 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 applicants' 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 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 records 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. BCM/NRs 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. BCM/NRs 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. 11. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by veterans for modification of their discharges due, in whole or in part, to: mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. The guidance further describes evidence sources and criteria and requires boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. DISCUSSION: 1. The applicant's contention that he is seeking treatment through the Southeast Louisiana Veterans Health Care System for PTSD and adjustment or anxiety disorder was noted. 2. There is no medical evidence showing he was diagnosed with PTSD, PTSD-like symptoms, or any other adjustment or anxiety disorder. 3. The evidence of record shows his combat awards include the Purple Heart, Bronze Star Medal with "V" Device, and Air Medal with "V" Device. 4. His record of service during his last term of enlistment included two NJPs for failing to go at the time prescribed to his appointed place of duty and being absent from his place of duty; one general court-martial conviction for wrongful appropriation of a truck, stealing rations, and being absent without authority; and 295 days of lost time. 5. His trial by court-martial was warranted by the gravity of the offenses charged. His conviction and discharge were effected in accordance with applicable law and regulations. The type of discharge he received appropriately characterized the misconduct for which he was convicted at that time. 6. The Army Review Boards Agency Psychologist found sufficient evidence of a medical disability or condition that would support a change to the character or reason for the applicant's discharge and that the applicant had mitigating medical or behavioral health conditions for the offenses which led to his separation from the Army. 7. The Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by veterans for modification of their discharges due, in whole or in part, to mental health conditions, including PTSD. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. This guidance further requires boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 8. 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. 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. 9. As a matter of clemency, the evidence would support a recommendation for upgrading the applicant's character of service to general under honorable conditions in accord with the Secretary of Defense Directive to DRBs and BCM/NRs. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002797 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002797 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2