BOARD DATE: 30 May 2017 DOCKET NUMBER: AR20160004141 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: 30 May 2017 DOCKET NUMBER: AR20160004141 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 AR20140013505, dated 24 February 2015, and AC72-00974B, dated 1 September 1982. ______________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: 30 May 2017 DOCKET NUMBER: AR20160004141 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) to "honorable conditions." 2. He states he served honorably in Vietnam. He was not eligible for an early out at the time because he had more than 6 months' time in service after his tour in Vietnam. From the moment he departed the plane after returning from Vietnam to the United States, he and others were shamed and called baby killers. His service, including his combat service, was honorable. He is requesting this discharge upgrade so that he may receive service-connection benefits for post-traumatic stress disorder (PTSD). 3. He provides: * General Court-Martial Order 41, dated 2 October 1970 * DA Form 20 (Enlisted Qualification Record) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * National Personnel Records Center Letter, dated 13 July 2007 * Congressional Correspondence, dated 17 August 2009 * DD Form 149 (Application for Correction of Military Record), dated 17 August 2009 with the Board's response, dated 11 March 2010 * Initial Evaluation/Psychological Examination, dated 20 September 2012 * DD Form 293 (Application for the Review of Discharge or Dismissal) * Disable American Veterans (DAV) Letter, dated 6 August 2014 * Department of Veterans Affairs (VA) Letter, dated 14 January 2015 * Internet Document "Military History BIRLS [Beneficiary Identification Records Locator Subsystem]" * Military Service Data Screen 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 AR20140013505, dated 24 February 2015 and AC72-00974B, dated 1 September 1982. 2. The applicant enlisted in the Regular Army on 29 June 1966 and he initially held military occupational specialty (MOS) 36K (Wireman). 3. He served in Vietnam from on or about 16 July 1967 to 15 July 1968. He was assigned to the 168th Engineer Battalion in MOS 52B (Powerman) and the 104th Engineer Company in MOS 64B (Heavy Vehicle Driver). 4. On 13 March 1969, he was convicted by a special court-martial of one specification of failing to go at the time prescribed to his appointed place of duty, one specification of being disrespectful in language toward a commissioned officer, and three specifications of dereliction in the performance of his duties. The court sentenced him to a forfeiture of pay and reduction from specialist four (SP4)/E-4 to private two (PV2)/E-2. The convening authority approved his sentence on 29 March 1969. 5. On 25 March 1969, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty at the time prescribed. His punishment consisted of a reduction to private (PVT)/E-1. 6. On 29 April 1969, he again accepted NJP for disobeying a lawful order and absenting himself from his appointed place of duty. 7. On 20 August 1969, he was convicted by a general court-martial of: * one specification of assaulting a commissioned officer by striking him on the body * one specification of striking a noncommissioned officer by hitting him on the head * one specification of disobeying a lawful general regulation by having an M7A2 canister of gas in his locker * one specification of disobeying a lawful general regulation by having in his possession a switchblade knife * one specification of wrongfully communicating a threat to kill a commissioned officer 8. The court sentenced him to a BCD, forfeiture of all pay and allowances, a reduction to the lowest enlisted grade of E-1, and confinement at hard labor for 18 months. 9. On 15 October 1969, the convening authority approved the sentence and, except for that part of the sentence extending to a BCD, he ordered the sentence executed. He also ordered the record of trial be forwarded to The Judge Advocate General (JAG) of the Army for appellate review and ordered the applicant be confined. 10. On 15 April 1970, while in confinement he was convicted by a special court-martial of one specification of disobeying a lawful order and two specifications of unlawfully striking another private. The court sentenced him to a forfeiture of pay for 3 months and confinement at hard labor for 3 months. The convening authority approved his sentence on 6 May 1970. 11. On 6 May 1970, the U.S. Army Court of Military Review affirmed the general court-martial findings of guilty and only so much of the sentence as provided for a BCD, forfeiture of all pay and allowances, confinement at hard labor for 1 year, and reduction to E-1. 12. Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 824, dated 28 August 1970, shows after completion of all required post-trial and appellate reviews, the convening authority ordered the BCD executed. 13. On 19 August 1970, the U.S. Court of Military Appeals informed him that a petition for a grant of review was denied. 14. Headquarters, First U.S. Army, Fort Meade, MD, General Court-Martial Order Number 41, dated 2 October 1970, shows after completion of all required post-trial and appellate reviews, the convening authority ordered the BCD executed. 15. The applicant was discharged from the Army on 27 October 1970. His DD Form 214 shows he was discharged under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) as a result of court-martial. This form further shows his character of service as under other than honorable conditions (UOTHC) and he was issued a BCD Certificate. He completed 3 years, 1 month, and 18 days of active duty service during this period. He also had 11 days of lost time prior to his discharge date and 418 days of lost time subsequent to his normal discharge date. 16. He provides, in pertinent part, a VA Initial Evaluation/Psychological Examination, dated 20 September 2012. The examiner states that, all in all, the applicant is an individual who suffers from PTSD, chronic, moderate. It is clear from his exposure to events while serving in the Army in Vietnam and the resultant symptoms expressed in this report that he suffers from PTSD. His primary symptoms are re-experiencing, hyperarousal, and avoidance. It is more likely than not that this condition developed immediately upon exposure to traumatic events in Vietnam. His diagnosis is PTSD, chronic, moderate with depressive features. 17. On 5 December 2016, the ABCMR obtained an advisory opinion from a psychologist, Army Review Boards Agency (ARBA), who states the evidence provided does not support the applicant's request for upgrade. He states: a. He reiterates the applicant's military history. He adds the applicant was in the Army from 29 June 1966 to 27 October 1970. He served in Vietnam from 16 July 1967 to 15 July 1968, and was in country during the Tet Offensive, a period he cites as traumatizing to him. He previously requested an upgrade of his discharge from UOTHC to under honorable conditions (general) on the basis of his PTSD which was denied. On 24 February 2015, the ABCMR reconsidered his case (AR20140013505) and also denied it, despite agreeing that he had PTSD from his Vietnam service. There were two key pertinent points addressed in their reconsideration. First, the Board could not do anything about the character of his discharge since it was the result of a general court-martial. Secondly, his PTSD did not mitigate the kinds of misconduct that led to his court-martial: multiple specifications of assault and communicating a threat to kill. His current application did not provide evidence that overturns any of the prior ABCMR findings regarding his PTSD. Its sole medical evidence is a previously relied upon medical evaluation diagnosing him with PTSD, a diagnosis that the ABCMR accepted in 2015, but rejected as mitigating his multiple instances of misconduct. b. The applicant’s available records do not, at the time of his discharge reasonably support him having had a boardable medical condition, since PTSD was not then recognized. He met standards in AR 40-501 (Standards of Medical Fitness) and AR 635-40 (Personnel Separation Physical Evaluation for Retention, Retirement, or Separation). He lacks a mitigating condition for the offenses committed. Additionally, his official military personnel record did include a medical examination that met Title 10, U.S Code, section 1177 requirements. c. The applicant met medical retention standards in accordance with AR 40-501, chapter 3 and the provisions set forth in AR 635-40, in effect at the time. A review of available documentation did not find evidence of a medical disability or conditions which would support a change to the character or reason for the discharge in this case. A causal nexus between the applicant’s behavioral-health diagnoses and his misconduct was not discovered. 18. On 6 December 2016, the advisory opinion was forwarded to the applicant for his acknowledgement and/or response. No response was received. REFERENCES: 1. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. 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. 2. 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. 3. 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." 4. 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. 5. 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. 6. 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 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. 7. 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 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. 8. 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? 9. Although 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 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. DISCUSSION: 1. The applicant argues, in effect, that his discharge should be upgraded because his indiscipline was based on PTSD. With an upgraded discharge he would be entitled to veterans' benefits. 2. A review of the applicant's record by the advising psychologist found no evidence that the applicant met the criteria for PTSD or any other behavioral health condition during his military service that led to his extensive pattern of misconduct. The evidence shows he met medical retention standards in accordance with the regulations in effect at the time. Additionally, a review of the applicant's available documentation did not find evidence of a medical disability or conditions which would support a change to the character or reason for the discharge in this case. 3. The applicant was found guilty by three separate courts-martial that included but were not limited to specifications of threatening to kill, assault, and striking others with intent to harm. The evidence of record further shows he was given a BCD pursuant to an approved sentence of a general court-martial. 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. 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) AR20160004141 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004141 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2