IN THE CASE OF: BOARD DATE: 14 July 2015 DOCKET NUMBER: AR20140019055 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, in effect, reconsideration of his two earlier requests: * to have his name removed from a Criminal Investigation Division (CID) report of investigation (ROI) * to upgrade his under other than honorable conditions discharge 2. The applicant states, in effect: a. Regarding the CID ROI: * his name appears in this ROI, but he was never charged * the victims were shown his photo several times before they identified him; by that time he had grown long sideburns and had longer hair * the case was built around that photo identification and not by first recognition * his name should be removed because he was never charged and this shines a negative light on his 6 years of honorable service * he was awarded the Army Good Conduct Medal for those 6 years, and otherwise had no disciplinary actions, nor was he administered nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) * he had been trying since 1985 to get the Department of Veterans Affairs (VA) to recognize that he had post-traumatic stress disorder (PTSD) * finally, after all these years, his VA psychiatrist confirmed a diagnosis of PTSD; he also saw an Army psychiatrist [prior to discharge], but received no treatment because PTSD was not recognized at that time b. As to his request to upgrade his discharge: * he had two honorable discharges, one in 1972 and the other in 1975 * he contends PTSD contributed to the incident which led to his discharge under other than honorable conditions * while still on active duty, and around the time of the incident which led to his discharge, he was seeking counseling and the counselor turned him in to the police * he pled guilty to the charges he faced in a civilian court * he feels it is suspicious that it took three attempts for the victim to identify him; he knows, however, what he did was wrong and contends stress and PTSD brought this on * he believes stress, nightmares, and being abused created his PTSD * he asserts the abuse was caused by the conditions of society at the time (referring to the anti-military feeling that existed during the Vietnam-era); among other similar situations, there was an incident during which eggs were thrown at him * he provides letters of support which prove he has led an honorable life since his discharge * he has sought and received counseling; he has, for over 30 years, been successful in work, being responsible, and in married life * he now draws supplemental security income (SSI) and military disability * he knows that what he did was inexcusable and he is honestly repentant, but he cannot undo what occurred 3. The applicant provides: * letter, dated 15 August 2014, addressed to the applicant from the Army Review Boards Agency * five letters of support * letter, dated 21 October 2014, addressed to the applicant from U.S. Army Criminal Investigation Command (USACIDC), with redacted copies of ROI Number 1976-CID016-XXXX-5K and Military Police Report (MPR) Number 1976-MPC216-XXXX-6E * 27 pages of a behavioral health client chart prepared by a Readjustment Counselor from a Vet Center located in WA CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Numbers AC82-05829, dated 22 December 1982 and AR20100021824, dated 12 April 2011. 2. The applicant presents new arguments and evidence which warrant consideration by the Board. 3. The applicant enlisted in the Regular Army on 18 March 1970. He served in Alaska from 2 December 1970 through 25 February 1972. 4. He was honorably released from active duty in pay grade E-4 on 26 February 1972 and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training). He was issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which showed he completed 1 year, 11 months, and 9 days of net active creditable service this period. 5. On 25 May 1972, he reenlisted in the Regular Army in pay grade E-3. He again served in Alaska from 25 May 1972 through 29 November 1973. He was honorably discharged on 26 February 1975 for the purpose of immediate reenlistment in pay grade E-4. His DD Form 214 (Report of Separation from Active Duty) credits him with completing 2 years, 9 months, and 2 days of net active creditable service this period. 6. He reenlisted once more in the Regular Army on 27 February 1975. 7. His record contains two documents from the Superior Court of the State of Washington in and for the County of Thurston: a. The first, dated 28 April 1976, lists the offense charged against the applicant and to which he pled guilty. It shows, in effect: Count I, while threatening the use of a deadly weapon, did forcibly engage in sexual intercourse with one [named female], not being married to [named female]. b. The second, signed by the prosecuting attorney on 1 June 1976, states: * the applicant entered a plea of guilty to the crime of first degree rape * the applicant not only admitted to the rapes of a 15 year old and a 16 year old girl, but several other rapes in recent years * the applicant requested help with an uncontrollable urge to rape women 8. A DA Form 3975 (Part B - MPR), dated 1977, shows the applicant was charged with rape on 29 April 1976. 9. A DA Form 3975-1 (Commander's Report of Disciplinary Action Taken), dated 21 December 1976, indicates the applicant appeared in Thurston County Superior Court on 2 June 1976 where he pled guilty to one count of [rape] and the court ordered him to be evaluated at Western State Hospital. On 3 November 1976, he reappeared in court where he was ordered to be confined as a sexual psychopath and sentenced to serve 20 years in the Washington State Reformatory. 10. All the documents containing the facts and circumstances surrounding his discharge process are not in the available records. However, his records contain a duly-constituted DD Form 214 which shows he was discharged on 2 December 1977, under the provisions of Army Regulation 635-206 (Conviction by Civil Court), for misconduct-conviction by civil court. His character of service is shown as under other than honorable conditions. He was credited with completion of 11 months and 28 days of net active service for the period of that DD Form 214 and he had 643 days of lost time. 11. After applying to the Army Discharge Review Board (ADRB), the board denied his request for an upgrade of his discharge on 10 March 1980. He then applied to the Army Board for Correction of Military Records, requesting removal of a CID report from his official military personnel file (OMPF) which showed him as being accused of sexual assault. 12. On 15 July 1980, the Board returned without action his request to remove the CID report from his OMPF because he had not exhausted all of his administrative remedies. He was advised to apply to the U.S. Army Criminal Investigation Command (USACIDC) for removal of the alleged report. 13. On 4 March 1982 he applied to the Board requesting his discharge be upgraded. On 22 December 1982, the Board denied his request for an upgrade of his discharge. 14. On 6 August 2010, the applicant again applied to the Board requesting removal of a CID report from his OMPF. He additionally requested the Board to add to his OMPF TDY orders showing service in Vietnam. On 12 April 2011, the Board denied both requests finding his OMPF was void of any record of service or temporary duty in Vietnam and that the applicant had not yet applied to USACIDC to have the CID report removed. 15. On 21 November 2012, the applicant again applied to the Board requesting TDY orders be added to his OMPF showing service in Vietnam, removal of the CID report concerning charges of sexual assault, and upgrade of his discharge. His request was returned without action because it had not been received within 1 year of the Board's earlier decision. 16. An email, received 22 June 2015 from USACIDC, confirmed that, as of that date, the applicant had not yet exhausted all of his administrative remedies in that he had not requested USACIDC to remove his name from the title of both the CID ROI and the MPR. 17. The applicant provides 27 pages of a behavioral health client chart prepared by a Readjustment Counselor from a Vet Center. The counselor appears to have a Master's degree (MA) and be a Licensed Mental Health Counselor (LMHC). The client chart essentially states: a. The applicant initially came to the Vet Center for help with anger. b. The Intake Assessment provided the applicant's background and detailed a history wherein the applicant suffered trauma and abuse as a child. Additionally, the applicant stated he had been sent on temporary duty to Vietnam and, while there, had witnessed multiple [traumatic] combat situations. c. The chart describes the applicant's PTSD symptoms: * difficulty sleeping, with frequent, reoccurring nightmares related to his military experiences * hypervigilence, exaggerated startle response, and restricted range of emotion * difficulty with memory and concentration * intrusive thoughts related to his experiences in Vietnam * avoidance of things, people, and places which remind him of stressful memories of Vietnam * flashbacks and a sense of disconnection from others d. Progress notes are included which summarize the applicant's treatment sessions. The treatment plan's approving official is identified as the counselor's team leader and shows as having an MA, LHMC. 18. The applicant submits five letters of support, which essentially describe the applicant as a model citizen who is active in his church. He has been a volunteer, played Santa Claus in a local store, and spent hours refurbishing computers for a local ministry. All feel the applicant warrants favorable consideration of his request for an upgraded discharge. 19. The applicant provides redacted copies of a CID ROI and an MPR wherein he was identified in the title as a subject of an investigation for the offenses of kidnapping and rape. a. The CID ROI describes the following: * while driving, the applicant picked up a female hitchhiker, drove her past her intended destination, then refused to allow her to exit the vehicle * he transported the hitchhiker to a location on Fort Lewis, WA and raped her * he then returned her to the vicinity of her residence b. The MPR states, in effect: * the applicant was apprehended by a County Sheriff's detective inside the Provost Marshal's Office at Fort Lewis * he was accused of raping two unknown females 20. Army Regulation 195-2 (Criminal Investigation Activities) prescribes responsibilities, mission, objectives, and policies pertaining to the Army Criminal Investigation Program. Chapter 4 contains guidance for investigative records, files, and reports. a. Paragraph 4-4 contains guidance for individual requests for access to or amendment of USACIDC ROI's. It states that requests to amend USACIDC ROI's will be considered only under the provisions of this regulation. b. Paragraph 4-4b states requests for amendment of USACIDC ROI's will be granted only if the individual submits new, relevant, and material facts that are determined to warrant revision of the report. The burden of proof to substantiate the request rests with the individual. Requests to delete a person's name from the title block will be granted if it is determined that credible information did not exist to believe that the individual committed the offense for which titled as a subject at the time the investigation was initiated or the wrong person's name has been entered as a result of mistaken identity. The decision to list a person's name in the title block of a USACIDC ROI is an investigative determination that is independent of judicial, nonjudicial, or administrative action taken against the individual or the results of such action. Within these parameters, the decision to make any changes in the report rests within the sole discretion of the Commanding General, USACIDC. The decision will constitute final action on behalf of the Secretary of the Army with respect to requests for amendment under this regulation. 21. Department of Defense Instruction (DODI) 5505.7 contains the authority and criteria for titling decisions. It states titling only requires credible information that an offense may have been committed. It further indicates that regardless of the characterization of the offense as founded, unfounded, or insufficient evidence, the only way to administratively remove a titling action from the Defense Central Investigations Index (DCII) is to show either mistaken identity or a complete lack of credible evidence to dispute the initial titling determination. a. Titling ensures investigators can retrieve information in an ROI of suspected criminal activity at some future time for law enforcement and security purposes. Whether to title is an operational decision made by investigative officials, rather than a legal determination made by attorneys. b. Titling or indexing (in the DCII) alone does not denote any degree of guilt or innocence. The criteria for titling determination are that credible information exists that a person: * may have committed a criminal offense * is otherwise made the object of a criminal investigation c. Information is deemed credible if, "considering the source and nature of the information and the totality of the circumstances, it is sufficiently believable to indicate criminal activity has occurred and would cause a reasonable investigator under similar circumstances to pursue further facts of the case to determine whether a criminal act occurred or may have occurred." 22. Army Regulation 635-206, in effect at the time, prescribed policies and procedures for the separation of enlisted Soldiers who had been convicted by a civilian court of an offense for which the authorized punishment under the UCMJ included death or confinement of 1 year or more was to be considered for elimination. When such separation was warranted, an under other than honorable conditions characterization of service was considered appropriate. 23. The Manual for Courts-Martial, U.S., provides guidance for the implementation and exercise of the UCMJ. In appendix 27 (Punitive Articles applicable to sexual offenses committed prior to 1 October 2007) it shows, under Article 120, the offense of rape has a maximum punishment of death or such other punishment as a court-martial may direct. 24. 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 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." 25. 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. 26. The DSM fifth revision (DSM-5) was released in May 2013. This revision includes changes to the diagnostic criteria for PTSD and Acute Stress Disorder. The PTSD diagnostic criteria were revised to take into account things that have been learned from scientific research and clinical experience. The revised diagnostic criteria for PTSD include a history of exposure to a traumatic event that meets specific stipulations and symptoms from each of four symptom clusters: intrusion, avoidance, negative alterations in cognitions and mood, and alterations in arousal and reactivity. The sixth criterion concerns duration of symptoms; the seventh assesses functioning; and the eighth criterion clarifies symptoms as not attributable to a substance or co-occurring medical condition. 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 27. 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. 28. 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 under other than honorable conditions 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. 29. 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? 30. Although the 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. 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. 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 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. PTSD is not a likely cause of premeditated misconduct (emphasis added). Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. DISCUSSION AND CONCLUSIONS: 1. Regarding his request to remove his name from CID ROI Number 1976-CID016-XXXXX-5K and MPR Number 1976-MPC216-XXXXX-6E, the evidence shows he has not yet exhausted all administrative remedies in that he has not requested relief from USACIDC. a. Even if this were not the case, he does not offer any proof the reports are either the result of an error or an injustice. Additionally, while he contends charges were never preferred by a military authority, it is clear civilian jurisdiction was assumed resulting in his conviction and subsequent discharge. b. The DODI concerning CID titling is clear in that once a person has been indexed, the name shall not be removed except in the case of mistaken identity or a determination that credible information did not exist that the subject committed a crime at the time the titling decision was made. c. Titling is an administrative action based on credible evidence showing that a subject may have committed a criminal offense. Once titled, the person remains titled even if it is later determined that the person did not commit the offense under investigation. 2. As to the request to upgrade his discharge: a. In order to be discharged under the provisions of Army Regulation 635-206, a Soldier must have been convicted by a civilian court of an offense for which the authorized punishment under the UCMJ included confinement of 1 year or more was to be considered for elimination. b. The applicant's records clearly show he pled guilty and was convicted by a civil court for the charge of first degree rape. Under the UCMJ, the maximum punishment for rape is death, or other punishment as a court-martial may direct. It is therefore clear his discharge was appropriate for the misconduct for which he was convicted. 3. The applicant's discharge packet is not available for review. Nonetheless, there is no evidence submitted by the applicant or from any other source which shows he was not properly and equitably discharged in accordance with the regulations in effect at the time. The Board presumes regularity and that actions taken by the Army are administratively correct. All evidence indicates the requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. Absent any evidence to the contrary, regularity must be presumed. 4. The applicant asserts he was suffering from PTSD at the time of his discharge and that PTSD, along with stress, played a key role in contributing to the misconduct which led to his discharge. a. Both the medical community and DOD now have a more thorough understanding of PTSD and its potential to serve as a causative factor in a Soldier's misconduct when the condition is not diagnosed and treated in a timely fashion. Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible recharacterization of their overall service. b. The applicant presents evidence showing he is receiving treatment for PTSD from a behavioral health specialist. c. Guidance from DoD requires the Board to exercise caution when 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 must be carefully weighed against the severity of the misconduct. d. PTSD is not a likely cause of premeditated misconduct (emphasis added). The Board must therefore give careful consideration when weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causeal relationship of symptoms to the misconduct. e. His charge of rape stated he had used a deadly weapon during the commission of the offense. f. The civilian prosecutor confirmed the applicant not only admitted to the instances of rape for which he was charged, he also admitted to several other rapes. The applicant requested help with an uncontrollable desire to rape women. g. The CID ROI states investigation revealed the applicant picked up a female hitchhiker, transported her on to Fort Lewis, and raped her, suggesting a planned pattern of behavior. h. The actions by the applicant, as revealed by the civilian court documents and the CID ROI, suggest premeditation and, thus, given DoD guidance, PTSD should not be considered as mitigating the applicant's misconduct. 5. Based upon the foregoing, there is insufficient evidence to grant him the requested relief of upgrading his under other than honorable conditions discharge. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ____X____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Numbers AC82-05829, dated 22 December 1982 and AR20100021824, dated 12 April 2011. ____________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. ABCMR Record of Proceedings (cont) AR20140019055 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140019055 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1