IN THE CASE OF: BOARD DATE: 31 January 2017 DOCKET NUMBER: AR20160005676 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: 31 January 2017 DOCKET NUMBER: AR20160005676 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 AR2001051836, dated 19 July 2001. ___________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: 31 January 2017 DOCKET NUMBER: AR20160005676 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 his previous requests for an upgrade of his bad conduct discharge shown as under other than honorable conditions (UOTHC) on his DD Form 214 (Report of Separation From Active Duty). 2. The applicant states, in effect, that he had a difficult time adapting to the demands of the military so he turned to alcohol and drugs to cope with his medical and mental health issues. He contends that while assigned to Germany his reconnaissance team was lost for two days during a field exercise and as a result, he developed frostbite. To make things worse, when they returned to base camp a riot broke out and several individuals were injured. Some Soldiers had to be returned to the States for treatment of their injuries. He was not sure if they lived or died but the event affected him a great deal. 3. The applicant provides his: * VA Form 21-4138 (Statement in Support of Claim) * VA Form 21-0960P-3 (Review Post Traumatic Stress Disorder (PTSD) Disability Benefits Questionnaire) 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 AR2001051836 on 19 July 2001. 2. The applicant now provides a new argument indicating PTSD was the catalyst for his misconduct warranting consideration by the Board. 3. He enlisted in the Regular Army on 12 July 1971 and served in military occupational specialty (MOS) 11D (Armor Reconnaissance Specialist). 4. On 16 September 1971, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for failing to go to his appointed place of duty. 5. His record contains four DA Forms 3349 (Medical Condition – Physical Profile Record) showing that during the period 8 July 1972 to 20 November 1973 he suffered from chronic foot pain and had a cold weather injury which limited his ability to perform the Army Physical Fitness Test or stand for longer than 15 minutes. The certifying official noted the profiles were temporary. There is no evidence showing he was referred to or evaluated by a medical evaluation board based on a permanent profile. 6. On 21 August 1973, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) from 1 to 10 July 1973. 7. On 4 April 1974, the applicant was tried and found guilty by a special court-martial (SPCM) of violating Article 82 of the UCMJ by wrongfully possessing 825 grams of marijuana. The resultant sentence included a bad conduct discharge, forfeiture of $200.00 per month for 6 months, a reduction to private/ pay grade E-1, and confinement at hard labor for 6 months. 8. On 5 June 1974, the sentence was approved by the SPCM convening authority and the record of court-martial was forwarded to The Judge Advocate General of the Army for a board of review. 9. On 11 November 1974, the U. S. Army Court of Military Review found the SPCM findings of guilty and sentence as approved by proper authority in the applicant’s case correct in law and fact. Having determined, on the basis of the entire record, that they should be approved, the U. S. Army Court of Military Review affirmed the guilty findings and the sentence in the applicant’s case. 10. This affirmation was documented in SPCM Order Number 145, dated 13 March 1975, issued by Headquarters, Fort Leavenworth, Kansas, in which the sentence was modified to suspend the unexecuted portion of the confinement sentence and the remaining portion of the sentence, including the bad conduct discharge, was ordered duly executed. 11. Accordingly, on 31 March 1975, the applicant was separated with a bad conduct discharge after completing 3 years, 2 months, and 22 days of creditable active military service with a total of 178 days of time lost due to AWOL and confinement. 12. The applicant provides a VA Form 21-0960P-3, showing he was evaluated for PTSD as part of his claim for disability benefits. The psychiatrist found the applicant met the criteria for PTSD. She stated the applicant perceived his enlistment as very traumatic. He felt discriminated against for 4 years. He was forced to go out in the field with a frostbite injury and when he was provoked by his sergeant he acted out. He was reduced in rank because he was confrontational. The applicant still has significant symptoms related to his time in Germany. 13. In the processing of this case an advisory opinion was received on 25 May 2016 from the Chief, Behavioral Health Division, Office of the Surgeon General. The advisory official opined: a. There are no behavioral health records during or subsequent to the applicant’s military service indicating he met the PTSD criteria at the time of his separation. A VA PTSD Disability Benefits Questionnaire, dated 23 February 2016, is the sole document showing his claim of a PTSD diagnosis in his record. b. Although this document indicates that he was exposed to a traumatic event and responded with intense fear, helplessness, or horror, it does not specify the precipitating event but instead describes racial discrimination through his tour of duty. Racial discrimination by itself does not constitute "an event that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others." 14. On 31 May 2016, the advisory opinion was forwarded to the applicant for acknowledgement/rebuttal. No response was received. REFERENCES: 1. AR 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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 states 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. Paragraph 3-7c states an UOTHC discharge is an administrative separation from the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial in certain circumstances. d. Paragraph 3–11 states that a Soldier will be given a punitive discharge (i.e. bad conduct discharge or dishonorable 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. 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. 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 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. b. Criterion B, intrusion symptoms: The traumatic event is persistently re-experienced, in part, as intrusive memories, nightmares, and marked physiologic reactivity after exposure to trauma-related stimuli. c. Criterion C, avoidance: Persistent effortful avoidance of distressing trauma-related stimuli after the event of trauma-related thoughts or feelings or trauma-related external reminders. d. Criterion D, negative alterations in cognitions and mood: Negative alterations in cognitions and mood that began or worsened after the traumatic event, in part, of the inability to recall key features of the traumatic event, persistent distorted blame of self or others for causing the traumatic event, and markedly diminished interest in significant activities. e. Criterion E, alterations in arousal and reactivity: Trauma-related alterations in arousal and reactivity that began or worsened after the traumatic event such as irritable or aggressive behavior, and problems in concentration. 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. 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. In view of the foregoing, on 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRB) and Service Board of Correction of Military/Naval Records (BCM/NR) 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 (emphasis added) 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 requests reconsideration of his previous requests for an upgrade of his bad conduct discharge based on PTSD related to racial discrimination. 2. In 2014 the Secretary of Defense directed DRBs and BCMRs to carefully consider the revised PTSD criteria and mitigating factors when taking action on applications from former service members administratively discharged UOTHC. The applicant received a punitive discharge, therefore, the Secretary of Defense 2014 memorandum is not applicable in his case. 3. The evidence of record confirms his trial by a SPCM was warranted by the gravity of the offenses charged, which included numerous periods of AWOL and possession of marijuana. He received an UOTHC characterization of service and he was issued a Bad Conduct Discharge Certificate. The appellate review of his court-martial was completed and the affirmed sentence ordered duly executed. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout. 4. By law, any redress by the ABCMR of the finality of a court-martial conviction is prohibited. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. 5. His post-service diagnosis of PTSD is not in question; however, the medical advisory official considered the facts and circumstances of this case and could not find a possible nexus between his PTSD and his misconduct. Further, the applicant's contention of racial discrimination does not constitute a defined traumatic event as prescribed in the DSM-5. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005676 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160005676 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2