BOARD DATE: 7 September 2017 DOCKET NUMBER: AR20160008486 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: 7 September 2017 DOCKET NUMBER: AR20160008486 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. BOARD DATE: 7 September 2017 DOCKET NUMBER: AR20160008486 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 his bad conduct discharge (BCD) be upgraded to an honorable discharge. 2. The applicant states, in effect, his post-traumatic stress disorder (PTSD), which he incurred following his service in the Republic of Vietnam, was determined to be service-connected by the Department of Veterans' Affairs (VA). He contends his PTSD was a mitigating factor involving his misconduct. a. He has received counseling from a veterans' center since 2012; he received a 50 percent (%) service-connected rating from the VA in 2014. b. When he came back from Vietnam, he could not function in civilian life. He was in the Individual Ready Reserve (IRR) after being released from active duty. He enlisted in the Regular Army because that was the last thing he felt comfortable doing, he thought he would go back. c. His life started to spiral out of control. He lost his wife, could not hold a job, and could not adjust to the Army again. At that time, PTSD was not diagnosed. He did not get the help he needed because he didn't know there was any help available. He is proud to report that he is doing well because of the counseling he is receiving. He had no idea he could try to change his discharge until he visited the American Legion Service Office. 3. The applicant provides: * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 3 March 1970 * DD Form 214 (Report of Separation from Active Duty) for the period ending 5 March 1979 * VA Rating Decisions dated 24 September 2012 and 24 February 2014 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 was inducted into the Army of the United States on 4 March 1968. He completed his initial entry training and was awarded military occupational specialty (MOS) 11B (Infantryman). He served in the Republic of Vietnam from on or about 21 September 1968 through 8 September 1969. He was honorably released from active duty on 3 March 1970, at his expiration of term of service (ETS) date, and he was transferred to U.S. Army Reserve Control Group (Annual Training). 3. Letter Orders Number 01-1486, issued by Headquarters, 5th U.S. Army, on 12 January 1976, show the applicant was honorably discharged from the IRR on 30 September 1975, for immediate reenlistment in the Regular Army. 4. The applicant reenlisted in the Regular Army on 1 October 1975. He successfully completed a second period of advanced individual training on 12 December 1975, and was awarded MOS 12B (Combat Engineer). He was assigned to Fort Ord, CA, from on or about 5 January 1976 through 18 May 1977. There is no record of indiscipline during his period of assignment at Fort Ord. 5. The applicant was promoted to the rank/grade of sergeant (SGT)/E-5 on 14 June 1977. On 3 July 1977, he was assigned to Company A, 2nd Engineer Battalion, in the Republic of Korea. 6. The applicant's record contains a DA Forms 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) that show he accepted non-judicial punishment (NJP), under the provisions of Article 15 of the UCMJ, on the following occasions: a. on 12 January 1978, for failing to repair on or about 22 September, 8 November, and 21 December 1977 (three instances); b. on 18 January 1978, for purchasing items in excess of his monthly prescribed limits for the month of November 1977; and c. on 25 February 1978, for purchasing items in excess of his monthly prescribed limits for the month of December 1977. 7. Special Court-Martial Order Number 54, issued by Headquarters, 2nd Infantry Division on 7 July 1978, shows the applicant was found guilty of the following charges: a. Charge 1 – violating Article 121 of the UCMJ; specifically, for stealing personal property of a local national on or about 26 May 1978. b. Charge 2 – violating Article 134 of the UCMJ; specifically, for breaking restriction on or about 31 May 1978, and for possessing a false Armed Forces Liberty Pass on or about 31 May 1978. 8. The court sentenced him to be discharged from the service with a BCD, to be confined at hard labor for 3 months, to forfeit $150.00 pay for 3 months, and to be reduced to the lowest enlisted grade. The sentence was adjudged on 8 June 1978, and approved on 7 July 1978. 9. The U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence in his court-martial. The U.S. Court of Military Appeals denied his petition for review. 10. Special Court-Martial Order Number 31, issued by Headquarters, U.S. Army Disciplinary Barracks, Fort Leavenworth, KS on 23 February 1979, shows the sentence as promulgated in Special Court-Martial Order Number 54, was affirmed and ordered executed. 11. The applicant was discharged on 5 March 1979. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 11-2, 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). 12. The applicant's service record is void of evidence that shows he suffered from PTSD-like symptoms during his periods of military service. 13. The applicant did not apply to the Army Discharge Review Board for an upgrade of his discharged within that board’s 15-year statute of limitations. 14. The applicant provides VA Rating Decisions that show he was granted service-connected disability status for: * PTSD (50%) on 24 September 2012 * Agent Orange–Vietnam/Ischemic Heart Disease (100%) on 24 February 2014 15. In the processing of this case, an advisory opinion was obtained on 20 December 2016 from an Army Review Boards Agency (ARBA) Clinical Psychologist. The advisory official noted and opined: a. The applicant’s record contains several physical profile records from 1976 through 1978 that are indicative of a hernia injury; however, no behavioral health conditions are listed. b. The VA rating he received for PTSD was based on his report of experiences in Vietnam and subsequent occupational and social impairment. c. Although his military record is void of medical documentation, and specific facts and circumstances concerning events that could have contributed to a PTSD diagnosis, it is likely that the presence of potentially untreated PTSD during his time in service negatively impacted his mood and behaviors related to his infractions of misconduct. d. The evidence supports he honorably completed one term of enlistment and subsequently exhibited misconduct upon returning from Vietnam. Given that PTSD was not recognized as a diagnosis during his time in service, it is unlikely that he or anyone else recognized and attributed his wrongdoings to PTSD. e. Supporting medical documentation regarding a diagnosis of PTSD was provided by the VA. Given his impairment and need for continued supportive services, it is more likely than not that his diagnosis of PTSD stemmed from his combat exposure and mitigated his misconduct. However, she further opined that PTSD is not reasonable related to larceny, breaking restriction or wrongful possession of a false pass. 16. The applicant was provided a copy of the advisory opinion on 29 December 2016, to provide him an opportunity to comment and/or submit a rebuttal. However, he did not respond. REFERENCES: 1. 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. 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 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. 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. 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 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. 7. 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 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 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 UOTHC 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 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. 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. 10. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. DISCUSSION: 1. The applicant requests an upgrade of his under other than honorable conditions discharge. He contends PTSD contributed to the misconduct that led to his discharge. 2. The applicant served 11 months in Vietnam during his first period of active military service. He was honorably released from active duty and transferred to the IRR. Five years later, he was honorably discharged from the IRR for the purpose of enlisting in the Regular Army. 3. The applicant's record is void evidence of misconduct upon his reentry into the Regular Army during his first assignment at Fort Ord, CA. However, after being assigned to the Republic of Korea, his record shows he began a pattern of misconduct that led to NJP and his discharge from the Army. 4. The applicant received a BCD pursuant to an approved sentence of a special court-martial, which was warranted by the gravity of the offenses charged at the time. 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. 5. In 2012, the VA diagnosed him with PTSD and awarded him with a 50% service-connected disability rating. The applicant contends he was unaware he had PTSD since it was not a diagnosed condition when he served. He contends the undiagnosed PTSD was a mitigating factor contributing to the misconduct that led to his discharge. However, there is no evidence during his first or second periods of military service that shows he suffered from PTSD symptoms. 6. The ARBA Clinical Psychological reviewed the limited medical records and the VA's diagnosis, and opined that there is evidence that PTSD mitigated some, but not all of his misconduct. 7. 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) AR20150016310 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160008486 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2