IN THE CASE OF: BOARD DATE: 12 March 2020 DOCKET NUMBER: AR20180014796 APPLICANT REQUESTS: The applicant requests, in effect, reconsideration to upgrade his bad conduct discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: .DD Form 149 (Application for Correction of Military Record) .DD Forms 214 (Armed Forces of the United States Report of Transfer orDischarge) .Secretary of Defense (SECDEF) Memorandum dated 3 September 2014 .Special Court-Martial Order Number 104 .Providence Veterans Administration (VA) Medical Center Records .Medical Documents .Post-Traumatic Stress Disorder (PTSD) Documents .Official Military Personnel File (OMPF) Documents FACTS: 1.Incorporated herein by reference are military records which were summarized in theprevious consideration of the applicant's case by the Army Board for Correction ofMilitary Records (ABCMR) in Docket Number AR2001060478 on 29 November 2001. 2.The applicant provides a new argument and evidence that warrants reconsiderationby the Board. He states: a.He would like the requirements of the SECDEF memorandum dated 3 September2014 to be considered as he had undiagnosed PTSD after his return from Vietnam which negatively impacted his conduct and ability to serve. b.While he was in Vietnam in 1969 his brother was killed and he was sent home bythe Red Cross. When he was about to return to Vietnam he had no ticket or money and because of that he could not return. He went and got an advance and that is the reason why he was late (absent without leave (AWOL)) returning to Vietnam. c.He took a test for the rank of a noncommissioned officer (pay grade E-5) and hepassed, but did not receive “them” because he had to go home for his brother’s funeral. When he returned he was hit with being AWOL and was reduced in rank. He still went back to Vietnam to finish his tour with the rest of his friends in the combat zone. As a 10th grade graduate how is it that he enlisted in the service and reenlisted for another tour of duty not knowing he had PTSD. 3.The applicant provided VA medical records and multiple documents related to PTSD.The PTSD documents describe how PTSD effects Veterans and are titled: .reckless self-destructive behavior and PTSD in Veterans; the mediating roleof new adverse events .report confirms wrongful separation of military personnel for misconduct whenit was really underlying mental illness .actions needed to ensure PTSD and traumatic brain injury (TBI) areconsidered in misconduct separations .wounded troops discharged for misconduct often had PTSD or TBI .Mayo Clinic PTSD .Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5)and PTSD 4.On 6 August 1968, the applicant enlisted in the Regular Army for a period of 2 years.He was discharged for the purpose of immediate reenlistment and immediatelyreenlisted on 23 December 1969 for 6 years. 5.The applicant was trained and served in military occupational specialty (MOS) 11B (Infantryman) and the highest rank he attained while serving on active duty wassergeant/pay grade E-5. 6.His DD Forms 214 show he was awarded or authorized the Army CommendationMedal, National Defense Service Medal, Vietnam Service Medal with 2 bronze servicestars, Republic of Vietnam Campaign Medal with 60 Device, and Meritorious UnitCitation. 7.The applicant's record shows an extensive record of indiscipline. He received non-judicial punishment under the provisions of Article 15 of the Uniform Code of MilitaryJustice on at least three occasions, for: .being AWOL .being in an off limits area .disobeying lawful orders .disobeying a lawful general regulation .disobeying lawful commands .disrespecting a superior commissioned officer 8.On 10 November 1971, he was tried and convicted by a summary court-martial forbeing AWOL from on or about 21 October to 1 November 1971. His sentence consistedof a reduction to the rank and pay grade of specialist/E-4 and a forfeiture of $220.00pay. 9.On 24 May 1972, the applicant was tried and convicted by a special court-martial.He pleaded guilty and was found guilty of wrongfully, willfully, and unlawfullyimpersonating a noncommissioned officer, by publicly wearing the uniform and insigniaof the rank of a staff sergeant, and by obtaining an identification card that he was a staffsergeant. He also pleaded guilty and was found guilty of submitting a fraudulent claimin the amount of $1,285.20. He was sentenced to confinement for 149 days, a forfeitureof $128.00 per month for 5 months, and a bad conduct discharge. 10.On 23 August 1972, the convening authority approved only so much of thesentence that provided for a bad conduct discharge (BCD), which he ordered executedupon completion of the appellate review. 11.Special Court-Martial Orders Number 95, dated 22 December 1972, issued byHeadquarters, 1st Cavalry Division, Fort Hood, Texas, directed the BCD portion of theapplicant's sentence to be executed based on the findings and sentence having beenfinally affirmed. 12.On 23 August 1973, a telephone or verbal conversation record states, theapplicant was given a bad conduct discharge by court-martial. He was put on excessleave waiting appellate review. The applicant was approved for discharge on28 December 1973. A letter went to the applicant on 12 February 1973. The applicantsigned for the letter on 23 February 1973. He did not return for the separation medicalexamination. The unit did not have a separation physical. An exception to policy wasapproved to separate the applicant. 13.On 4 September 1973, the applicant was discharged by court-martial underconditions other than honorable and issued a DD Form 259A (Bad Conduct DischargeCertificate). He completed 4 years, 9 months, and 29 days of total active service. Theapplicant had 92 days of lost time and served in Vietnam from 23 December 1969 to16 January 1970 and 25 July 1970 to 22 July 1971. 14.On 29 November 2001, the ABCMR denied the applicant’s request for an upgradeof his discharge. There was no basis for granting the applicant’s request. 15.On 14 June 2019, the Army Review Boards Agency Psychologist reviewed thiscase and provided an advisory opinion, which was provided to the Board. The medicaladvisor stated, in pertinent part: a.There were no hardcopy military medical records for review. The electronicmilitary medical record was not reviewed as it was not in use at the time of his service. b.The applicant received services at the Veterans Administration (VA) and hasbeen diagnosed with major depressive disorder, adjustment disorder with anxiety, antisocial personality disorder, alcohol use disorder (in full remission), and PTSD. He had no current service-connected disability ratings but a compensation and pension examination was completed on 2 May 2019 with a diagnosis of PTSD. The applicant's VA records do support the existence of PTSD at the time of discharge. The applicant's military records indicate that he did meet medical retention standards in accordance with (IAW) Army Regulation (AR) 40-501 (Standards of Medical Fitness). The applicant’s diagnosis of PTSD is NOT a mitigating factor in the misconduct that resulted in the applicant's discharge from the military. There is NO nexus between PTSD and impersonation of a noncommissioned officer or attempted fraud. 16.On 22 June 2019 the Army Review Boards Agency provided a copy of the medicaladvisory to the applicant and gave him the opportunity to submit additional statementsand/or evidence on his behalf. The applicant provided several pages of medicalprogress notes, a Telephone and Conversation Record dated 23 August 1973 fromseparations branch that states his discharge was approved, a letter was sent but theapplicant did NOT return back. Separations Branch did not have a separation physical,a multitude of excerpts regarding information on PTSD (history, symptoms, etc.) andsubmitted a rebuttal statement and stated: a.He was separated “Under Conditions Other Than Honorable" and not a BadConduct Discharge. The advisory opinion contains factual inaccuracies and is based upon incomplete file information and does not include the application of current medical practice regarding PTSD and misconduct in its conclusions. b.He agrees with the advisory opinion that he had undiagnosed PTSD at the timeof discharge. He disagrees with the advisory opinion that he met retention standards IAW AR 40-501. Attached, please find the DA Form 751 (Telephone of Verbal Conversation Record) dated 23 August 1973 indicating that he did not have a separation physical. Therefore, the statement by the medical advisor is incorrect and the Standards of Medical Fitness found in AR 40-501 have no separation physical to be applied. The statement by the medical advisor is capricious and arbitrary and is inconsistent with the facts then and now. c.The U.S. Army and Department of Defense did not recognized PTSD as amedical or mental health condition at that time and there was no routine screening for PTSD or other mental disorders. The medical advisor’s opinion is speculative and factually inaccurate and non-responsive to the question in paragraph two (2) as requested by the Case Management Division. Additionally, without access to his medical records, he challenges the basis for which the medical advisor based his or her opinion. Further, the medical advisor is not a medical professional and not a psychiatrist and would be professionally unqualified to make any determination on fitness or medical retention standards. d.He disagrees with the advisory opinion that PTSD is not a mitigating factor. Thepsychologist's summary and conclusions have no supporting medical, psychiatric or psychological rationale. In fact, there is not any supporting evidence that PTSD is not a mitigating factor. The truth is that there is an over-abundance of applied medical research and treatment that, in fact, PTSD and misconduct are related and that there is a causal relationship between PTSD symptoms and behavior to include self-destructive behavior, aggressive behavior, impulsive acts, high risk and anti-social behavior to name a few. Attached, please find studies and research papers that support the direct relationship between misconduct and PTSD. e.The article in “BMC” Psychiatry identifies the direct effect of PTSD to misconductin Veterans including Vietnam Veterans: "antisocial behavior, including illegal activities. Additionally, the BMC article found that "African Americans have higher rates of involvement in the military discipline system compared to Caucasians." He was the recipient of racism during his tour in Vietnam and after Vietnam. In my unit, African American Soldiers were disproportionately sent to the field. He also attached the Government Accountability Office DOD Health report summary which supports the direct relationship between misconduct and PTSD. f.The medical advisory has no medical rationale and is arbitrary and capricious andultimately no factual value and should be set aside. The medical evidence supports the fact that PTSD is a causative factor in misconduct and thus a mitigating factor and should be applied in this review. He disagrees with the advisory opinion stating that there is no nexus between PTSD and impersonation of a noncommissioned officer and attempted fraud. The statement by the medical advisor avoids the purpose of the character of discharge review and the intent of the SECDEF's memorandum: that there is direct causative relationship between PTSD and misconduct. g.The medical advisor makes a negative conclusion without medical, psychiatric orpsychological rationale. The two incidents identified in paragraph eight (8) of the advisory opinion are directly aligned with self-destructive behavior, aggressive behavior, impulsive acts, high risk and anti-social behavior. He served his country in combat in Vietnam and suffered the effects of PTSD, the loss of his brother in Vietnam and the systemic racism found in the U.S. Army at that time. He has provided a clear and factual rebuttal to the conclusions of the medical advisor. To be clear, the Board should go forward with their decision based on the evidence of record and not provide a second bite of the apple to the medical advisor. Also, he wishes the Army had diagnosed and treated him for PTSD rather than going the easy punitive route. h.He wants the Board to know that he is not an educated man having only reachedthe 10th grade and he had to rely on his Veterans of Foreign Wars Service Officer to help him with this rebuttal. This is a heavy burden to place on a Veteran and he needed help. He trusts that the Board will take into consideration all the mitigating factors and upgrade his discharge. 17.The additional medical and PTSD documents along with the applicant’srebuttal/comments were provided to the Board and reviewed by an ARBA medicaladvisor. The medical advisor stated that a second advisory was not warranted. 18.Research has also shown that misconduct stemming from PTSD is typically basedupon a spur of the moment decision resulting from temporary lapse in judgment;therefore, PTSD is not a likely cause for either premeditated misconduct or misconductthat continues for an extended period of time. 19.Army Regulation 40-501, chapter 10 states that, there is no statutory requirementfor members of the Active Army to undergo a medical examination incidental toseparation from Active Army service. Discharge in absentia, when a bad conductdischarge is upheld by appellate review, and the individual is on excess leave does notrequire a separation medical examination. 20.Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) prescribesthe policies and procedures for separating members with a dishonorable or a badconduct discharge. It stipulates that a Soldier would be given a bad conduct dischargepursuant only to an approved sentence of a general or a special court-martial and thatthe appellate review must be completed and affirmed before the sentence is orderedduly executed. 21.Court-martial convictions stand as adjudged or modified by appeal through thejudicial process. In accordance with Title 10, United States Code, section 1552, theauthority under which this Board acts, the Army Board for Correction of Military Recordsis not empowered to set aside a conviction. Rather it is only empowered to change theseverity of the sentence imposed in the court-martial process and then only if clemencyis determined to be appropriate. Clemency is an act of mercy, or instance of leniency,to moderate the severity of the punishment imposed. 22.In view of the foregoing, on 3 September 2014 the Secretary of Defense directedthe Service Discharge Review Boards (DRBs) and Service Boards for Correction ofmilitary/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria,detailed medical considerations and mitigating factors when taking action onapplications from former service members administratively discharged UOTHC and whohave been diagnosed with PTSD by a competent mental health professionalrepresenting a civilian healthcare provider in order to determine if it would beappropriate to upgrade the characterization of the applicant's service. Consideration ofmitigating factors provides that PTSD is not a likely cause of premeditated misconduct.Corrections Boards will also exercise caution in weighing evidence of mitigation in allcases of misconduct by carefully considering the likely causal relationship of symptomsto the misconduct. 23.The VA is not required by law to determine medical unfitness for further militaryservice. The VA, in accordance with its own policies and regulations, awardscompensation solely on the basis that a medical condition exists and that said medicalcondition reduces or impairs the social or industrial adaptability of the individualconcerned. Consequently, due to the two concepts involved, the applicant's medicalcondition, although not considered medically unfitting for military service at the time ofprocessing for separation and discharge, may be sufficient to qualify him for VA benefitsbased on an evaluation by that agency. It does not necessarily demonstrate any erroror injustice by the Army. 24.In reaching its determination, the Board should consider the applicant's petition,service record, and statements in light of the published Department of Defenseguidance on equity, injustice, clemency, and Secretary of Defense Memorandum dated3 September 2014 (Supplemental Guidance to Military Boards for Correction ofMilitary/Naval Records Considering Discharge Upgrade Requests by Veterans ClaimingPost Traumatic Stress Disorder. BOARD DISCUSSION: 1.The Board carefully considered the applicant’s request, supporting documents,evidence in the records and published DoD guidance for consideration of dischargeupgrade requests. The Board considered the applicant’s statement, his record ofservice to include service in Vietnam, the frequency and nature of his misconduct, thecharges against him, the results of the court-martial and the reason for his separation.The Board considered the review and conclusions of the medical advising official, theVA diagnosis of PTSD and the applicant’s rebuttal to the advisory opinion. Afterconsidering the above, the Board found insufficient evidence of in-service mitigation toovercome the documented misconduct and the applicant provided no evidence of post-service achievements or letters of reference in support of a clemency determination.Based on a preponderance of evidence, the Board determined that the character ofservice the applicant received upon separation was not in error or unjust. 2.After reviewing the application and all supporting documents, the Board found thatrelief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XX :XXX DENY APPLICATION 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. REFERENCES: 1.Army Regulation 40-501 (Standards of Medical Fitness) provides generaladministrative policies relative to military medical examinations. Requirements forperiodic, separation, mobilization, and other medical examinations. Chapter 10 statesthat there is no statutory requirement for members of the Active Army to undergo amedical examination incidental to separation from Active Army service. Discharge inabsentia, when a bad conduct discharge is upheld by appellate review, and theindividual is on excess leave does not require a separation medical examination. 2.The VA is not required by law to determine medical unfitness for further militaryservice. The VA, in accordance with its own policies and regulations, awardscompensation solely on the basis that a medical condition exists and that said medicalcondition reduces or impairs the social or industrial adaptability of the individualconcerned. Consequently, due to the two concepts involved, the applicant's medicalcondition, although not considered medically unfitting for military service at the time ofprocessing for separation and discharge, may be sufficient to qualify him for VA benefitsbased on an evaluation by that agency. It does not necessarily demonstrate any erroror injustice by the Army. 3.Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) prescribesthe policies and procedures for separating members with a dishonorable or a badconduct discharge. It stipulates that a Soldier would be given a bad conduct dischargepursuant only to an approved sentence of a general or a special court-martial and thatthe appellate review must be completed and affirmed before the sentence is orderedduly executed. 4.Court-martial convictions stand as adjudged or modified by appeal through thejudicial process. In accordance with Title 10, United States Code, section 1552, theauthority under which this Board acts, the Army Board for Correction of Military Recordsis not empowered to set aside a conviction. Rather it is only empowered to change theseverity of the sentence imposed in the court-martial process and then only if clemencyis determined to be appropriate. Clemency is an act of mercy, or instance of leniency,to moderate the severity of the punishment imposed. 5.As a result of the extensive research conducted by the medical community and therelatively recent issuance of revised criteria regarding the causes, diagnosis andtreatment of PTSD the Department of Defense (DoD) acknowledges that some Soldierswho were administratively discharged under other than honorable conditions may havehad an undiagnosed condition of PTSD at the time of their discharge. It is alsoacknowledged that in some cases this undiagnosed condition of PTSD may have beena mitigating factor in the Soldier's misconduct which served as a catalyst for theirdischarge. 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. 5. 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. Consideration of mitigating factors provides that 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. 6. 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 (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. a. This 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, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. 7. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). The ABCMR begins its consideration of each case with the presumption of administrative regularity. //NOTHING FOLLOWS//