IN THE CASE OF:  	  

		BOARD DATE:  6 March 2015	  

		DOCKET NUMBER:  AR20140013146 


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, an upgrade of his bad conduct discharge (BCD) in order to obtain Department of Veterans Affairs (VA) benefits.

2.  The applicant states, in effect:

* he sustained injuries and dental trauma due to incorrect dental procedures
* he has post-traumatic stress disorder (PTSD) incurred while he was serving on active duty

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) and DD Form 293 (Application for the Review of Discharge for the Armed Forces of the United States).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 23 May 2007.

2.  The applicant's record contains General Court-Martial (GCM) Order Number 23, dated 16 November 2011, which shows he pled and was found guilty of:

	a.  stealing military property, to wit:  an M-9 pistol of a value about $500.00 or less on 5 August 2010;

	b.  two specifications of disposing without proper authority by disassembling and burying in an open field, a firearm, to wit:  an M-9 pistol, of a value about $500.00 or less on 12 August 2010; 

	c.  wrongfully using gamma-hyroxbutyric (GHB), a schedule I controlled substance, on 14 November 2010;

	d.  wrongfully using methylenedioxy-methamphetamine (MDMA), a schedule I controlled substance, on 14 November 2010;

	e.  wrongfully possessing some amount of MDMA, a schedule I controlled substance, on 14 November 2010; and

	f.  wrongfully distributing GHB, a schedule I controlled substance, on 14 November 2010.

3.  The applicant was sentenced to reduction to private (PV1)/E-1, a forfeiture of all pay and allowances, confinement for a period of three years, and the issuance of a BCD.  The sentence was approved and, except for the part of the sentence extending to a BCD, was executed.

4.  The applicant's record contains a copy of GCM Order Number 212, dated 28 December 2012, which shows, in pertinent part, the applicant's sentence was finally affirmed and the BCD was ordered duly executed.

5.  The applicant's DD Form 214 shows he was discharged on 22 February 2013 under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 3, by reason of court-martial.  This form further lists the applicant's character of service as "bad conduct."

6.  He submitted a DD Form 293, dated 13 May 2014:

	a.  wherein he states:

* he served honorably with no Article 15s or reprimands during 4 years of his 6-year contract
* the average commitment is 4 years and if he had to do 6 years it would have been a first
* he wishes to use the Post-9/11 GI Bill in order to better his future for his family



	b.  that contains a personal reference on page two, that states the applicant's:

* served honorably for 4 of a 6 year commitment to the U.S. Army as a UH-1 Blackhawk helicopter crew chief
* exemplary service includes combat in Iraq in support of Operation Iraqi Freedom
* selfless service and dedication to the defense of this nation resulted in his being awarded the Air Medal
* character of service should be changed to allow him to take full advantage of the VA educational benefits
* training will help him better support his family

7.  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 Army Board for Correction of Military Records acts, the Board is not empowered to change a discharge due to matters which should have been raised in the appellate process, 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.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 3-11 (BCD) states a Soldier will be given a BCD pursuant only to an approved sentence of a general or special court-martial.  The appellate review must be completed and the affirmed sentence ordered duly executed.  Questions concerning the finality of appellate review should be referred to the servicing staff judge advocate.  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.

9.  PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster.  The Diagnostic and Statistical Manual of Mental Disorders (DSM) is published by the American Psychiatric Association (APA) and it provides standard criteria and common language for the classification of mental disorders.  In 1980, the APA added PTSD to the third edition of its DSM-III nosologic classification scheme.  Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice.  From an historical perspective, the significant change ushered in by the PTSD concept was the stipulation that the etiological agent was outside the individual (i.e., a traumatic event) rather than an inherent individual weakness (i.e., a traumatic neurosis).  The key to understanding the scientific basis and clinical expression of PTSD is the concept of "trauma."

10.  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.

11.  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 use, or other illness.

12.  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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded because he wants VA benefits was carefully considered and found to be without merit.

2.  The evidence of record shows the applicant was convicted by a GCM and he received a BCD.  Trial by a GCM was warranted by the serious nature of the offense for which the applicant was charged and convicted.  The sentence is commensurate with the misconduct for which the applicant was convicted.

3.  There is no evidence and he did not provide any showing he was diagnosed with PTSD, or that he raised his mental health conditions as a possible defense at the time.  He provided no evidence now to show he has been diagnosed with service-connected PTSD or any other mental health condition.

4.  The ABCMR does not upgrade discharges solely for the purpose of making the applicant eligible for veterans' programs.  Every case is individually decided based upon its merits when an applicant requests a discharge upgrade.

5.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Absent any mitigating factors, the type of discharge directed was appropriate.  As a result, clemency is not warranted in this case.

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 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.

ABCMR Record of Proceedings (cont)                                         AR20140013146



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ABCMR Record of Proceedings (cont)                                         AR20140013146



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