IN THE CASE OF: BOARD DATE: 18 December 2018 DOCKET NUMBER: AR20160009598 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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: 18 December 2018 DOCKET NUMBER: AR20160009598 THE APPLICANT'S REQUEST AND STATEMENT: 1. The applicant, a caregiver of a former service member (FSM), requests: a. reconsideration of the FSM's prior requests for an upgrade of his bad conduct discharge (BCD). b. The applicant appears to request a personal hearing on behalf of the FSM. 2. The applicant submitted new evidence for reconsideration of the FSM's previous two cases. She states: a. She was unaware that the FSM's request was being reconsidered. She was previously told by the Army Board for Correction of Military Records (ABCMR) that they were in the process of setting a date for the FSM's reconsideration, via a video hearing, and that she would be contacted at a later time with the date of the hearing. She had no further correspondence with the ABCMR office, until she requested a status of the FSM's reconsideration request for Docket Number AR20140017325. She states that until she received ABCMR's response letter, dated 8 March 2016 denying the FSM's reconsideration, she was not aware and had no prior knowledge that the Board was reconvening and made a decision without her knowledge or a personal appearance hearing. b. After reading the court-martial transcripts the ABCMR provided, she states that the military legal office provided the FSM with substandard legal counsel at his general court-martial (GCM), and she states that the ABCMR stated that substandard legal counsel "could have" affected the outcome significantly for the type of discharge the FSM received. She now believes the FSM should be granted clemency. c. In referencing the GCM, she states, pursuant to Federal law 504, the FSM should have been granted reasonable accommodations because he is and was disabled. His military attorney was made aware of this upon contacting the FSM's parents, prior to the GCM. She had many conversations with the FSM's parents and they attested to this fact. The parents attended and supplied his medical records to the court via his attorney. She also supplied the applicant's complete medical file, as well as additional information. d. There were blunders in ABCMR Docket Number AR20130017325, which include, but are not limited to, omitting relevant information on page 6, paragraph 6, which states, "there is no evidence of record that shows the FSM was diagnosed with any unfitting medical condition(s) during the period of service under review. In addition, the contention the FSM's medical condition led to his indiscipline is not supported by the available evidence. Moreover, this contention could have been raised during the FSM's court-martial and appellate process and conclusively adjudicated; however, the evidence of record fails to show the FSM raised the issue as a matter in defense and/or mitigation." The applicant states, the FSM's parents brought detailed medical records to the GCM, to include his diagnosis of a traumatic brain injury (TBI), but these documents were denied introduction as material evidence. Additionally, the FSM also testified to these facts, while still in recovery. e. Even if the FSM failed to declare the 18 April 1983 accident, there is no way any physician could have over looked his surgery scaring and cranialplasty in the FSM's right frontal lobe. Additionally, he had 4 to 10 inches of scarring on his head and he would have needed the FSM's neurosurgeon's approval to have been medically released as "fit for duty" to enter the Army, which was purposely ignored by the Army physicians. f. Due to the FSM's brain injury, he is easily misled by people. Most TBI patient's behavior skills are significantly impaired, with the amount of brain damage and recovery time varying. A prime example is when the FSM went absent without leave (AWOL). The applicant states that it is her understanding that the FSM had been with a female enlisted Solider when he went AWOL. She took him to where a child was, he was left alone with her, and he spanked the child, but denies abusing her. She states she has never witnessed the FSM become aggressive toward anyone, especially a child (She wants to have this statement put in the FSM's record, regardless of the final decision by the ABCMR.) g. She had no knowledge of the [falsifying official record] charge, which was dismissed at his GCM without prejudice, and neither does the FSM. THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records with supporting documents: * Statement by the FSM's caregiver, dated 14 April 2016 * Notarized letter from the FSM to the ABCMR, dated 5 April 2016 * Certified Mail – return receipt requested, dated 22 September 2014 * Social Security Administration (SSA), Office of Disability Adjudication and Review, dated 4 August 2015 * SSA – Notice of Decision – fully favorable, dated 4 August 2015 2. Evidence from the applicant's service record and Department of the Army and Department of Defense records and system: * GCM Order Number 61, issued by Headquarters Fort Hood, TX, dated 11 October 1990 * U.S. Army Court of Military Review, dated 20 January 1991 * DA Form 3081-R (Periodic Medical Examination), dated 7 February 1991 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * ABCMR Docket Number AR20140001469, date 2 September 2014 * ABMCR Docket Number AR20140017325, dated 9 June 2015 * ABCMR letter to FSM, dated 8 March 2016 REFERENCES: 1. Army Regulation 635-200 sets 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. Paragraph 3-11 provides that an enlisted person will be given a BCD pursuant only to an approved sentence of a general or special court-martial. The appellate review is required to be completed and the affirmed sentence ordered duly executed. 2. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. Under the laws governing the Army Physical Disability Evaluation system, Soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits. One of the criteria is that the disability must have been incurred or aggravated while the Soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training. 4. Army Regulation 635-40, states that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion that they must have existed or have started before the individual entered the military service. Examples include symptoms of chronic disease from date of entry on active military service (or so close to that date of entry that the disease could not have started in so short a period) which will be accepted as proof that the disease existed prior to entrance into active military service (emphasis added). 5. Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, induction, appointment, retention, separation, and retirement. a. Chapter 3 provides guidance for the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below the standards required for service. b. These medical conditions and physical defects, individually or in combination, are those that significantly limit or interfere with the Soldier's performance of his/her duties; may compromise or aggravate the Soldier's health or well-being if the Soldier were to remain in the military service (this may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring); may compromise the health or well-being of other Soldiers; or may prejudice the best interests of the government if the individual Soldier were to remain in the military service. 6. Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: a. The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. b. The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 7. 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. 8. 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." 9. 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. 10. 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. 11. 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 discharges. 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. 12. BCM/NRs are not courts, nor are they investigative agencies. Therefore, the determinations are 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? 13. Although DOD acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had PTSD at the time of discharge, it is presumed 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. 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 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. c. PTSD is not a likely a 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. 14. 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. 15. 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 (TBI), 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. a. Evidence may also include changes in behavior; requests for transfer to another military duty assignment; deterioration in work performance; inability of the individual to conform their behavior to the expectations of a military environment; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; unexplained economic or social behavior changes; relationship issues; or sexual dysfunction. b. Evidence of misconduct, including any misconduct underlying a veteran's discharge, may be evidence of a mental health condition, including PTSD; TBI; or of behavior consistent with experiencing sexual assault or sexual harassment. c. The veteran's testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge. 16. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records regarding equity, injustice or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds. The guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to the applicant. 17. Article 71c(2) states if a sentence extends to dismissal or a dishonorable or bad conduct discharge and if the right of the accused to appellate review is waived, or an appeal is withdrawn, under section 861 of this title (Article 61), that part of the sentence extending to dismissal or a bad conduct or dishonorable discharge may not be executed until review of the case by a Judge Advocate (and any action on that review) under section 864 of this title (Article 64) is completed. Any other part of a court-martial sentence may be ordered executed by the convening authority or other person acting on the case under section 860 of this title (Article 60) when approved by him under that section. 18. 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 UCMJ, 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 UCMJ 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. 19. Title 18, U.S. Code, section 242, (Deprivation of rights under color of law), states, whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both. DISCUSSION: 1. Incorporated herein by reference are military records, which were summarized in the previous consideration of the FSM's cases in Docket Numbers AR20140001469, dated 2 September 2014 and AR20140017325, dated 9 June 2015. 2. The FSM enlisted in the Regular Army on 7 November 1989, at the age of 24. ? 3. GCM Order Number 61 shows a GCM convicted the FSM of the following charges on 16 September 1990: a. On 17 May 1990, for committing assault upon a child under the age of 16 years by striking her in the face, head, legs, and chest with his hands and with a belt, and by lifting her into the air, shaking her, and throwing her against furniture. b. On 15 May 1990, unlawfully striking a child under the age of 16 by striking her on the back, buttocks, and legs with his hands and with a belt. c. For being AWOL from on or about 12 May 1990 to 18 May 1990 and from 22 June to 11 July 1990. d. The additional charge, with intent to deceive, signed an official record, which he knew to be false, was dismissed without prejudice to the government. 4. On 7 February 1991, the FSM affirmed that he underwent a periodic medical examination in conjunction with his separation and that there had been no significant change in his medical condition since the medical examination. 5. The FSM was sentenced to confinement for nine months, forfeiture of all pay and allowances, and the issuance of a BCD. The U.S. Army Court of Military Review affirmed the findings and sentence on 20 June 1991. 6. The FSM's DD Form 214 shows he was separated on 26 September 1991, as a result of court-martial, and he was issued a BCD. He was credited with 1 year, 1 month, and 29 days of net active service this period. He had 261 days of time lost due to AWOL and confinement from 12 May 1990 to 6 June 1990, 7 June 1990 to 11 June 1990, 22 June 1990 to 10 July 1990, and 11 July 1990 to 6 February 1991. 7. On 4 November 2013, the applicant submitted a request on behalf of the FSM (ABCMR Docket Number AR20140001469 (1st case)), requesting an upgrade to a BCD due to a pre-existing TBI/mental condition, and stating that he was advised by his civilian medical provider not to reveal his TBI. He is now homeless and needs constant care. The applicant also claims the FSM was discharged for falsifying government records (physical entrance examination). A personal hearing was not requested. The FSM argued that his indiscipline was based on a pre-existing condition of a TBI; however, his argument was not supported by the available evidence. The case noted that the FSM's contention could have been raised during his court-martial, appellate process, and conclusively adjudicated; however, the evidence of record is void of documentation showing that the FSM's raised these issues at his GCM. On 2 September 2014, the Board denied the FSM's request based on his GCM conviction. 8. The applicant submitted a request to the ABCMR requesting a reconsideration of the FSM's previous request, (ABCMR Docket Number AR20140017325 (2nd case)), based on new evidence. The applicant, on behalf of the FSM stated: a. The FSM was in an automobile accident on 18 April 1983, when he was 17 years old, prior to his military service. He had a cranial debridement procedure, cranial autonomy, and a fracture of the right femur. He was in a coma and in traction for about 2 months. Since he was a minor at that time, he was not informed that he was diagnosed with a TBI. b. The FSM entered military service in November 1989 with an unfitting, pre-existing medical condition, and he was court-martialed for falsifying government records. c. Two brain surgeons, a gastro-internist, and an orthopedic surgeon confirmed the FSM's TBI. The FSM was informed of this diagnosis in September 2013. He is a homeless veteran, who suffers from tremors and has developed ischemia, which affects his behavior and cognitive skills, and his current condition is irreversible. d. The FSM's mental disorder associated with TBI and the physical residual limitations, since the accident, along with being court-martialed without his medical diagnosis being considered, brought on additional mental trauma considered as PTSD. 9. The Board considered all the information the applicant provided, to include the FSM's medical history, his entrance physical examination, that fact that he failed to disclose his medical history, his GCM conviction, his post service medical documentation and statements, and his previous case, ABCMR Docket Number AR20140001469 (1st case). The Board noted: a. On 18 April 1983, the FSM was admitted to the hospital following a motor vehicle accident with multiple trauma. "He had a right temporal depressed skull fracture with the brain exposed, blunt trauma to the abdomen, a left pneumothorax requiring a chest tube as well as an open fracture of the right femur and multiple lacerations and abrasions." b. On 13 May 1983, "Impressions: In all likelihood this patient did develop some stress ulceration and related to his head injury which as partially treated with Tagamet and later with the addition of antacids." c. On 2 May 1984, a Ph.D., conducted a psychological evaluation, in which the doctor stated, the FSM "…has shown good recovery from his brain injury that occurred in an accident in April 1983. His level of intellectual functioning is within the normal range and has returned to premorbid levels. His academic achievement is a problem area, but may well have been a problem before his injury… [FSM] has evidence of depression and poor emotional control, especially of anger and is in need of counseling. Diagnostic Impression: (1) normal intellectual functioning (good recovery from brain injury), (2) situational depression, and (3) adjustment disorder." d. On 28 August 1985, the FSM received an outpatient evaluation to consider him for admission to the head injury rehabilitation program after being given a diagnosis of post-traumatic epilepsy secondary to severe depressed skull fracture and cerebral contusion. It shows, "[a]t the present, the [applicant] is by himself and the history is as given by him." e. On 22 November 1985, a medical doctor at the Roosevelt Warm Springs Institute for Rehabilitation, noted, "the patient also made good physical recovery; however, he has been left with residual problems with some of his cognitive functions." f. On 5 August 1986, the FSM was seen for "dizzy spells and old head injury 3 years ago." g. On 8 April 2014, the FSM received a diagnosis of "intracranial injury of other and unspecified nature with an open intracranial wound, unspecified state of consciousness." h. On 9 May 2014, the FSM received a notation of a medical history of "TBI, tremor." i. 10 October 2014, an associate pastor affirmed the FSM is homeless and confirms he was diagnosed with TBI. 10. On 9 June 2015, the Board determined that the all information failed to support the FSM's contentions. In addition, they noted he was not discharged for falsifying government records. The record shows the additional charge of falsifying an official document was dismissed without prejudice to the government. The Board stated, the FSM's conviction by a GCM was warranted by the gravity of the offenses for which he was charged and were effected in accordance with the applicable laws and regulations and his rights were protected throughout the court-martial process. The available evidence does not support the applicant's contention that the FSM's medical condition led to his indiscipline. Moreover, his contentions could have been raised during his court-martial and appellate process and conclusively adjudicated; however, the evidence of record failed to show that the FSM raised his medical issues as a matter in defense and/or mitigation. Therefore, on 9 June 2015, the ABCMR denied the FSM's reconsideration request. 11. On 8 March 2016, the applicant was provided a letter denying the FSM's reconsideration request. 12. On 23 August 2018, the Army Review Board Agency (ARBA) Senior Medical Advisor provided an advisory opinion, which stated: a. The FSM successfully completed both basic combat training and advanced individual training without any known incidents or problems. Although the FSM's behavioral health condition was present at the time of his misconduct, his conditions were not mitigating. The FSM did not disclose his history of a TBI, cranial surgery, Attention Deficient Hyperactivity Disorder (ADHD) (treated with medication), seizures/epilepsy (treated with medication), mood disorder, multiple hospitalizations and/or other conditions that existed prior to service (EPTS), in accordance with Army Regulation 40-501, and following the provisions set for the in Army Regulation 635-40 that were applicable to the FSM's era of service. b. The applicant did not meet medical accession standards for EPTS for his head injuries and for failing to disclose his prior injuries. c. He met medical retentions standards for adjustment disorder with depressed mood, right knee pain, right ankle pain, ETPS not disclosed history of TBI and other conditions; however, adjustment disorder with depressed mood and personality features are not medically board-able conditions. d. His medical conditions were duly considered during medical separation processing. e. A review of the available documentation found no evidence of a medical disability or condition that would support a change to the character or reason for the discharge in this case. The FSM was separated with a BCD after a court-martial. The FSM could understand and participate in administrative proceedings, could appreciate the difference between right and wrong, and was convicted at a GCM of physical assaults on a child. 13. On 19 September 2018, the applicant responded to the medical advisory opinion with the following information: a. There were numerous errors, redactions, and alterations that would have negatively affected the outcome of the FSM's previous requests. b. The FSM has significant TBI issues, he was denied due process of law, a right to a fair hearing, and was denied reasonable accommodations as a disabled person at his GCM, which is guaranteed by the Americans with Disabilities Act. c. The FSM was 17 years of age when an auto accident took place and as a minor, he was not privy to his complete diagnosis. Due to the severity of his injuries, he would have been easily overwhelmed by this information being disclosed to him. Furthermore, it would have been illegal for his brain surgeon to disclose his diagnosis to him as he was a minor. The applicant claims she was present when the FSM was told of his diagnosis of TBI and he was shocked. d. She maintains all of his medical records and files of significance at present and since 2013. She is his caregiver and has had the responsibility to take the FSM to his medical evaluations. The FSM's most current surgery was in February 2018, and the applicant wrote numerous letters in and on his behalf. e. The FSM's parents attended his GCM and entered sworn testimony; the previous ABCMR cases do not reflect this information. f. Some of the narrative and conversations with his brain surgeon are altered. g. Title 18, section 242 was violated and the FSM was deprived of his rights, nor was he sworn in to give any testimony at his [GCM] hearing. The FSM had a right to give sworn testimony as to the events and facts of the matter. h. The applicant states that it appears the U.S. Army needs a new set of physicians to complete enlistment examinations. Apparently, the one that gave the FSM clearance to enlist failed to document a three-inch cranial plate protruding a half inch on his right frontal lobe. i. The FSM was placed in special education services while attending Fort Valley High School after his accident. It took him additional three years to graduate, while still being graded on a curve. j. It is difficult to believe that the FSM had a conversation with his brain surgeon prior to joining the U.S. Army due to the catastrophic injuries he sustained from the accident; thus this entry was altered. k. She requests that the false information be removed from the FSM's record and the corrections be noted in his file. l. She has known the FSM for six years, long enough to know he only follows people leading him. The FSM went AWOL with a female enlisted Soldier who made him babysit her child. The FSM admits to spanking a child, but denies beating her. m. The applicant believes that the GCM officials had an agenda to get the FSM out of the Army immediately and covered up the fact that their physicians made an extremely inexcusable mistake in allowing the FSM's entrance into any branch of service. He has more than enough evaluations to conclude that he cannot maintain day-to-day living tasks. n. The FSM should be granted an upgrade to an honorable or at least a general discharge, since it was the Army who overlooked his disabilities and handicap. 14. The applicant provided the following notes on a copy of the medical advisory opinion, which state: a. Neurosurgery Operative note, dated 18 April 1983 "…he gradually stabilized after a time in the Intensive Care Unit and had been alert but has bad a residual expressive aphasia…The patient has been in good health all of this life with having only one hospitalization in 1966 for pneumonia." The applicant disputes this statement, to which she responds, "[applicant] was comatose for approximately 2 months." b. Discharge summary (Clinical Resume), dated 24 June 1983 for admission on 18 April 1983 and discharged on 25 June 1983, states, "…initial[ly] he was unconscious and then he regained consciousness and then as he regained consciousness went through a period of spasticity in his lower end of his extremities, the lower extremities in particular" The good side was protected from injury." The applicant responded: "What is this[?] He his right handed. [Illegible] extremity essential tremors [are] ongoing to this day!" c. Neurosurgery note, dated 9 August 1983, states, "His biggest problem is he cannot remember the events of his accident. I expect that he never will, he has good strength in all four extremities. His fractured femur is healing well; he has good sensation over his entire body although he does have slight dysfunction of his right upper extremity." The applicant responded that, [FSM's] right upper extrem[ities] essential tremors." d. Neurosurgery note, dated 12 October 1983, stated, "…he is going to school all day and this has caused him some depression as he is having some trouble with it. I am going to reduce this [schooling] to half a day." The applicant responded, "[FSM] has aced in special education…EP meeting as [illegible]." Additionally, the note stated, "return to work as a stockroom clerk" and the applicant responded, "[FSM] didn't return to full duty!" e. Hospitalized 4-5 December 1983 – EPTS auto accident #2, Discharge note (Clinical Resume, dated 12 January 1984 for admission from 4 to 5 December 1983 for cerebral contusion. "This is an 18 year old male who was involved in an auto accident when he ran off the road. The car turned over on its side and the patient has suffered a severe contusion 8 months prior to this. He is admitted at this time for observation…" The applicant responded, "no other D.V.A. or current – prior brain injury." f. Neurosurgery note, dated 2 April 1984. "and he is still having a lot of problems, mostly emotional at this point. Apparently, he took off from home over the weekend without anyone knowing it… He refused to talk much today about this but apparently he is not happy at home and after talking with him about it I think that a full, psychological evaluation is first of all necessary to see where we stand and how much true brain problems he is left with from this severe contusion…" The applicant responded: "[FSM] unable to cope [illegible] AWOL from home." g. Neurosurgery note, dated 9 January 1985, states, "…and he is doing very well. He had a completely normal exam today and I am going to release him, we will see him back only if he needs to be seen. He is to continue his regular and routine activity. He has asked if he can join the Service and I think that this will be fine after he graduates from High School." The applicant responded, "This was never stated to [applicant]. Wrong." h. Neurosurgery note, dated 25 July 1985, states, "Warm Springs Institute for Rehabilitation evaluation on 28 August 1985 for this 20 year old male…At the present, the patient is by himself and this history is as given by him. There is no available medical information. He states that in April of 1983 he was involved in an automobile accident. At the time, he suffered a severe head injury with depressed skull fractures, cerebral contusion, multiple traumas and contusion…" The applicant responds, "Why would there be no medical information, based on a referral warm springs Ins., REQUIRES MEDICAL REFERRALS to attend. This is inaccurate!" In addition, the note states, "…At the time of the accident, he was in the 11th grade. Presently, he is in the 12th grade… Dilantin…Ritalin…Neurologicial examination: ---normal---Impression: 1) Status-post severe head injury with associated skull fractures and cerebral contusions in April 1983. 2) Post-traumatic encephalopathy mainly manifested by memory and behavioral difficulties. Suggestions: From a neurological standing, I do not see any contraindication for this patient to be enrolled in the Head Injury Program…" The applicant responded, stating, "[FSM] stayed in constant care of his parents." i. Rehabilitation Hospitalization – 29 October to 15 November 1985 – EPTS. Discharge Summary. "Condition on discharge: …A driver's evaluation was performed and the patient was found to have adequate control of the car but had questionable concentration and judgement and thus is not recommended for driving at this time. He also underwent a cooking evaluation and had no problems with kitchen safety or preparing a meal." The applicant responded, stating, "This is highly inaccurate! [FSM] is not safe left unattended to cook alone." j. Warm Springs Institute for Rehabilitation follow up on 2 June 1986. "…continued to do well in high school and in fact has graduated within the past week. He has continued to do quite well with machinist type activities and is interested in pursuing further training in either machine work or related vocational occupations, for instance welding. It is interesting to note that the patient has discussed recruitment with the U.S. Navy but after discussion with his family, it has been felt that he should take advantage of what every vocational evaluation and training services are available within the immediate future before considering enlisting in the service. There have been no new medical problems…It is recommended that the patient be admitted to the Vocational Unit for evaluation. His past performance in high school and in family and social interactions indicates that he probably does not need adjustment type services…" The applicant responded, stating, "Debunkable. WRONG. Inaccurate Information. This is Wrong!" k. Neurosurgery note, dated 22 October 1986. "I really feel that it is time to normalize him now; he is in a trade school, away from his home and has no residual peer pressure from his old brain injury." The applicant responded, stating, "[FSM] lived at home. This is wrong, inaccurate." l. Neurosurgery note, dated 20 December 1986. "He is not taking any medications. He is doing well in school and has actually started to develop relationships with people. He is showing maturity that I have not seen in him before…." m. Neurosurgery note, dated 14 July 1987. "…and I think that he is very hyperactive secondary to his brain injury. I have recommended psychological evaluation but this will have to be done carefully as at this age it is hard to arrange this…" n. Center for Psychiatric Care note, dated 6 August 1987 to FSM's neurosurgeon. "He presents as a 22 year old singe male who exhibits signs and symptoms of a residual organic affective syndrome and an associated impulse control disorder. In addition, by his history, there is progressive family dysfunction. There is no evidence of a thought disruption or active destructive ideation, although he has experienced fleeting destructive ideation in the past…". The applicant responded, stating, with regard to paragraphs l, m, and n, "This [statement] contradicts each other. This is inaccurate." o. Neurosurgery note, dated 9 February 1988. "[FSM] was in the office today and he is working on a daily basis, he has a completely normal neurologic, this chest is clear and I am going to dismiss him and ask him to call if he needs to be seen. The ARBA Senior Medical Advisor, noted, "Normal neurological examination; employed; high school graduate; completed psychological, behavioral and presumably vocational rehabilitation; no scheduled neurosurgical follow-up required. The applicant responded, stating, "[FSM] still presented essential tremors making [illegible] shows this. Where is his F.C.T." p. Report of Medical History, dated 28 October 1989 "with good health and no medication or allegories. All 'no' responses except as noted: have vision in both eyes, broken bone, usual occupation – security guard, right handed. Explanation of 'yes' response – none provided. Reviewed with provider – fractured right femur 1982 – treated by cast. DWI 1985 - $3500.00 + $50 for alcohol class. No marijuana, drug or alcohol abuse. The applicant responded, stating, "Inaccurate." q. ARBA Senior Medical Advisor Reviewer Note: "[FSM] CLEARLY KNEW he had an automobile related head injury, diagnosed epilepsy in the past, nervous condition, hospitalization, and more…[FSM] clearly did NOT DISCLOSE (i.e. concealed) these facts when he applied for enlistment." The applicant responded, stating, "[FSM] did not know his diagnosis was (T.B.I.). [FSM] was not privy to this info he was under and in the care of his parents. [FSM's] father maintained [his] medical records not [FSM], [FSM] medical records from Dr. P____ C____ stated not a good idea to disclose [FSM] T.B.I. to everyone due to the chance of [FSM] being treated differently (mistreated)." r. ARBA Senior Medical Advisor Reviewer Note: "This examiner completed an adequate physical exam, to the point of noting a pilonidal dimple (not noted on previous available medical examinations- as part of the skin examination. The [FSM] did NOT have an obvious 'plate' on his head – the affected area was only 3 inches in 1983 and 1984 and the scar presumably blended well into his hair or hairline." The applicant responded, stating, "The cranial plate [protrudes]. This is an [apparent,] deliberate LIE. [FSM's] plate is very clearly seen to this day!" s. 7 November 1989 – Entry onto active military service. "Clinic visit (DA 5181-R) dated 11 December 1989 for right leg pain – shin splints. Right leg x-ray (11 Dec 1989) for pain swelling right leg x 6 days – Small benign cystic lesion right proximal tibia otherwise negative." The applicant responded, stating, "Inaccurate Information. We have x-ray negatives." t. Physical Profile (DA 3349) dated 28 August 1990 for right knew (PFPS – patellofemoral pain syndrome) with temporary PULHES – 13111, expires 21 September 1990. "GCM on 16 September with conviction for: Committing assault upon a child under age of 16 years on 17 May 1990 ("…by striking her in the face, head, legs and chest with his hands, and a belt, and by lifting her into the air, shaking her and throwing her against furniture…multiple contusions and abrasions, loosened teeth, and a fractured arm. 'Tell your mother you fell off your tricycle' or words to that effect.)" The applicant responded, stating, "The child comments???? Y'all couldn't even get this right! This is inaccurate. If this child went through this, she would have been hospitalized or dead. This is hyped up to obscure [FSM] being let go from the Army with a T.B. I.!" Furthermore, the additional charge: with intent to deceive, sign an official record, to wit: A Standard Form 93 (Report of Medical History), which record was false in that the said [FSM] indicated in block number 11 that he had no history of head injuries, and was then known to …to be false, was dismissed without prejudice to the government. The applicant responded, stating, "E[rror] in decision." u. Clinic visit (SF 600) on 27 September 1990, states, "for dressing change for left index finger (laceration tip of left index finger)". The applicant responded, stating, "Your physicians were not qualified to render an opinion or treat [FSM] T.B.I" v. United States Army Court of Military Review, 9002555, dated 16 July 1991. "…We hold that the judge erred. We also hold that the error was not prejudicial. The evidence presented during presentencing, especially the photographs of the victim's bruises, reveals the brutality of the appellant's beating of a six-year-old child. Under the circumstances, we are satisfied that the sentence imposed upon him was not affected by the trial judge's ruling. We have considered the issues raised personally by the appellant pursuant to the United States v. Grostefon, 12 M. J. 341 (C.M.A. 1982) and find them to be without merit. The findings of guilty and the sentence are affirmed." The applicant responded, stating, "this error was prejudicial." v. The available records do not reasonably support PTSD or another board-able behavioral health conditions that existed at the time of the FSM's military service. The applicant responded, "?." w. The FSM's behavioral health condition was not mitigating for his misconduct. The applicant responded, stating, "Are you seriously stupid?" x. The FSM did not meet medical accession standards for EPTS not disclosed history of TBI, cranial surgery, ADHD (treated with medication), seizures/epilepsy (treated with medication), mood disorder (no medication therapy), multiple hospitalizations and/or other EPTS not disclosed conditions in accordance with chapter 2, Army Regulation 40-501, and following the provisions set forth in Army Regulation 635-40 that were applicable to the FSM's era of service. The applicant responded, stating, "FSM stays in array of confus[ion], he couldn't give a complete disclosure because he wasn't privy to his T.B.I. (illegible). There again, you just chose not to see the injury, scars, and essential tremors." y. The FSM met medical retention standards for adjustment disorder with depressed mood, right knee pain, right ankle pain, EPTS not disclosed history of TBI and other conditions and all other physical, medical, dental, and/or behavioral conditions. Adjustment Disorder with depressed mood and personality features are not medically board-able conditions. The applicant responded, stating, "Maybe not, but PTSD and Agent Orange were! And the fact that the Army let him in with T.B.I., essential tremors, and a cranial plate in his right frontal lobe without question is!" 15. The applicant also stated, "In benefit of [FSM], any competent attorney would have all issued raised. Your judge [at GCM] err[ed] in judgement! The fact remains [FSM] was denied his U.S. Constitutional rights to redress his grievances, Amendment 1st. FSM struggles to 'fit' in to society daily. You failed to admit the obvious error of letting [FSM] in with T.B.I. Again, are you people seriously stupid or just ig[norant], or just choose not to see his medical history. His medical records were presented by his parents in the court-martial 'prior to sentence' and sent in again by me when I received them late [in] 2013[,] twice in 3 years, once certified by D___ J___ W____." 16. The applicant argues that the FSM should never have been allowed to enlisted in the U.S. Army due to a severe brain injury, which occurred at age 17, that the FSM was never told that he had a TBI and could not inform the Army because he was not made of aware of his diagnosis due to being a minor until 2013. Due to his injuries, mitigating circumstances should have been presented at his GCM, but his medical documents were not presented as evidence at his GCM due to a claim that the FSM had substandard counsel. 17. The record shows the FSM was convicted at a GCM of two specification of assault on a child and AWOL. The charge of falsifying documentation (his entrance examination) was dismissed without prejudice. Although the applicant states the FSM was not aware of his TBI until 2013, long after he was discharged from the Army, the FSM clearly knew he was in an auto accident in 1983, which resulted in multiple head scars, surgery, a broken femur, and internal injuries, which he failed to disclose during his entrance physical into the Army. a. The FSM's record is void of any evidence that shows ABCMR provided the applicant the FSM's GCM transcripts or that someone at ABCMR told her that the FSM's "substandard legal counsel "could have" affected the outcome significantly for the type of discharge he received." b. Although the applicant is unclear what documents were redacted and/or altered and by what agency, a review of the FSM's service record, medical records, and documents submitted by the applicant, do not show any evidence that any official documents were altered for falsified. c. The applicant contends that the FSM's right to reasonable accommodations as a disabled person were denied. (1) The medical advisor stated the FSM's "medical conditions were duly considered during medical separation processing… A review of the available documentation found no evidence of a medical disability or condition that would support a change to the character or reason for the discharge in this case." (2) The medical advisory also stated, the "FSM was separated with a BCD after a court-martial. The FSM could understand and participate in administrative proceedings, could appreciate the difference between right and wrong..." d. The applicant states, the FSM's age (17 years old) was not listed in the two previous ABCMR cases. The evidence of record includes two previous ABCMR records of proceedings, which listed the FSM's age at the time of his auto accident, prior to his enlistment in 1989. e. The FSM's GCM was addressed in both ABCMR Docket Number AR20140001469 and AR20140017325, but the neither of these dockets mentioned that his parents attended his court-martial. f. The applicant states that the FSM's rights, under U.S. Title 18, section 242, were violated. The evidence of record shows the FSM's trial by a GCM was warranted by the gravity of the offenses for which he was charged and he received a BCD pursuant to an approved sentence at a GCM. The appellate review was completed and the affirmed sentence was ordered duly executed. g. The applicant provides a copy of the FSM's SSA, Office of Disability Adjudication and Review Decision that shows the FSM was listed as disabled for social security income with an effective date of 14 June 2013. 18. 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 Army Board for Correction of Military Records 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. 19. The applicant provided new evidence in support of the FSM's request for an upgrade, a review of the FSM's records. These records do not contain evidence that the FSM was subjected to traumatic events during his military service. The evidence of record does show that his TBI was an EPTS condition. The Board should consider all the facts in accordance with the published equity, injustice, or clemency determination guidance. 20. The Board, when considering requests by veterans for modification of their discharges due in whole or in part to: mental health conditions, including TBI is required 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. a. Evidence may also include changes in behavior; requests for transfer to another military duty assignment; deterioration in work performance; inability of the individual to conform their behavior to the expectations of a military environment; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; unexplained economic or social behavior changes; relationship issues; or sexual dysfunction. b. Evidence of misconduct, including any misconduct underlying a veteran's discharge, may be evidence of a mental health condition, including PTSD; TBI; or of behavior consistent with experiencing sexual assault or sexual harassment. c. The veteran's testimony alone, oral or written, may establish the existence of a condition or experience, that the condition or experience existed during or was aggravated by military service, and that the condition or experience excuses or mitigates the discharge. 21. The Board found the applicant’s lay statements, which contain many contradictory statements, to be outweighed by the other evidence of record, including the ARBA medical advisory opinion that the TBI-related residuals were not mitigating for the misconduct. The Board also found that the applicant’s assertion that the FSM did not receive adequate assistance of counsel during the court-martial lacks merit. The FSM pled guilty to two counts of assault of a child under the age of 16 years and two counts of AWOL. He was represented by counsel during the general court-martial and through the appellate process. The 20 June 1991 memorandum opinion from the U.S. Army Court of Military Review notes defense counsel objected to trial counsel’s improper inquiry into the FSM’s right to remain silent. Upon appellate review, this error was found to be non-prejudicial. Appellate review was completed and the affirmed sentence ordered duly executed. In the 19 September 2018 response to the ARBA medical advisory opinion, the applicant contends the FSM was denied his right to testify on his behalf; however, as noted above, the applicant exercised his right to remain silent. Additionally, it is not clear from the applicant’s statements what “reasonable accommodations as a disabled person” the FSM was allegedly denied during the court-martial process. BOARD DETERMINATION/RECOMMENDATION: 1. The available is sufficient for the Board to render fair and impartial consideration of the case without a personal appearance hearing. 2. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160006909 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160009598 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2