IN THE CASE OF:	  

		BOARD DATE:	 23 July 2015 

		DOCKET NUMBER:  AR20140019455 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests his bad conduct discharge be upgraded.

2.  The applicant states:  

	a.  He found his attorney both contentious and ineffective.  He was hostile to him as his client and he believes he worked in concert with the prosecution in his case to ensure that he received the maximum sentence possible.  

	b.  The only witness against him was a private who was charged with the identical crime, larceny.  The private was found guilty in Korea of grand larceny and was allowed to remain in the Army.  At the time of the applicant's trial the private was granted immunity of all charges and testified that he assisted him in taking $50.00 from a credit card.  He contended it was the private who stole the money.  However despite the private's previous conviction, he was given the benefit of the doubt not only by the court but also by his lawyer.

	c.  He has served the time he was sentenced to serve by the military court.  He does not believe the character of his discharge, nor the amount of time he served, was warranted given the involvement of the private as well as the conduct of his attorney.  He reasserts he did not commit larceny.

3.  The applicant provides:

* four letters from the Department of Veterans Affairs (VA), New Jersey Health Care System
* a medical record from the VA Hudson Valley Healthcare System, Montrose, NY
* seven certificates of completion 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  He previously served 3 years, 9 months, and 17 days in the Pennsylvania Army National Guard.  He was discharged on 18 December 1979 with a general discharge under honorable conditions.  On 19 December 1979, he was ordered to active duty as an Army Reservist.  On 14 January 1980, he was assigned to the 48th Medical Battalion at Fort Hood, TX.

3.  He accepted nonjudicial punishment (NJP) on:

* 26 June 1980 for being absent from his appointed place of duty
* 28 July 1980 for unlawfully striking a female private in the head repeatedly and one blow to her back with his fist and failing to obey an order from a commissioned officer for all male personnel to remain out of females’ rooms in the billets

4.  On 29 June 1981, he enlisted in the Regular Army in pay grade E-3.  He was promoted to specialist four/pay grade E-4 on 1 September 1981.

5.  On 1 October 1981, he was assigned to the 11th Engineer Battalion at Fort Belvoir, VA.

6.  On 26 March 1982, he accepted NJP for three specifications of failing to go at the time prescribed to his appointed place of duty.

7.  On 5 August 1982, he accepted NJP for being absent without leave (AWOL) 
15-16 July 1982.  His punishment included reduction to pay grade E-3, suspended for 6 months.  On 21 September 1982, the suspension was vacated.

8.  On 25 February 1983, he pled not guilty and was found guilty by a general court-martial of:

* willfully and wrongfully damaging by breaking the vent window of a Toyota truck, the property of Staff Sergeant (SSG) S, the amount of said damage being about $94.00
* stealing U.S. currency of a value of about $345, the property of SSG S and YS
* stealing U.S. currency of a value of about $8.97, the property of YS
* on or about 2 November 1982, assaulting a female by grabbing her wrists while he was lying nude on top of her in a bed
* on or about 2 November assaulting a female by grabbing her by the ankles

His sentence consisted of:

* reduction to pay grade E-1
* forfeiture of $429.00 pay per month for 3 years
* confinement at hard labor for 3 years
* a bad conduct discharge

9.  On 26 May 1983, the convening authority approved the sentence.

10.  On 20 June 1984, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence.  The error asserted by the applicant was brought to their attention and was found to be without merit.  

11.  On 11 July 1984, the applicant petitioned the U.S. Court of Military Appeals for review of his conviction and/or sentence.

12.  On 8 February 1985, his court-martial was reviewed by the U.S. Army Court of Military Review based on a remand from the United States Court of Military Appeals.  The applicant contended the military judge erred by failing to merge the two assault charges and finding them multiplicious for findings and sentencing.  The U.S. Army Court of Military Review disagreed and again affirmed the findings of guilty and the sentence.

13.  On 8 March 1985, the applicant again petitioned the U.S. Court of Military Appeals for review of his conviction.  There is no record of the disposition of his petition in the available military records.
14.  On 20 June 1985, his bad conduct discharge was ordered to be executed.

15.  On 12 July 1985, he was discharged with a bad conduct discharge as a result of his court-martial conviction.  He completed 1 year, 8 months, and 
21 days of net active service.  He served 842 days in confinement.  He had 522 days of time lost prior to his expiration of his term of service (ETS) and 322 days of time lost subsequent to his ETS.  He did not serve overseas during his enlistment.

16.  The applicant provided two letters, dated 3 March and 7 February 2014, from a social worker at the VA New Jersey Health Care System.

	a.  The applicant was admitted to the VA New Jersey Healthcare Systems Domiciliary, a residential program for homeless veterans on 11 July 2013 and would complete the program by 1 April 2014.

	b.  The program treats homeless veterans who have limited financial and social resources and offers them the opportunity to purse a life that is productive and satisfying through recovery from substance abuse, vocational rehabilitation, access to affordable housing, recreation, and fellowship.

	c.  The applicant was working on returning to the community and was looking for housing.  He identified his mental health issue of post-traumatic stress disorder (PTSD) and completed residential treatment and then returned to the Domiciliary.  He gave the program his fullest effort, obtaining forklift certification, gaining back his driver's license, learned computer skills and, dealt with long term financial issues.

17.  The applicant provided two letters, one undated and on dated 1 June 2014, from his case manager at the VA New Jersey Health Care System.

	a.  The applicant had been participating in Housing and Urban Development (HUD), and the VA Supported Housing VASH Program since 11 December 2013. He was successful in finding a suitable two bedroom apartment for himself and an elderly parent.

	b.  He was able to achieve one of his goals and was working towards his long term goals.  He had been responsible, available, determined, and optimistic.  He appeared to be insightful and was motivated for change.

18.  The applicant provided a medical record showing an admission date of 
17 September 2013 at the Lyons VA Domiciliary.  He was discharged on 
30 October 2013.  His discharge diagnoses were PTSD, polysubstance dependence in full remission, dysthymia.

19.  He provided a certificate of completion of the PTSD Residential Program at the VA Hudson Valley Healthcare System, Montrose, NY on 30 October 2013.

20.  He provided six additional certificates for completion of:

* 480 hours in instruction in auto mechanics - 19 October 2001
* Forklift/Powered Industrial Truck Safety - 16 April 2003
* Residential Substance Abuse Treatment Program - 11 July 2013
* Powered Industrial Lift Trucks - 13 September 2013
* Credit Card Management Services - 3 March 2014
* Domiciliary Program - 11 July 2013 - 1 April 2014

21.  Army Regulation 635-200 (Personnel Separations, Enlisted Personnel), in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.  

	a.  Chapter 3, section IV, established policy and procedures for separating members with a dishonorable or bad conduct discharge and provided that a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial and that the appellate review must be completed and the affirmed sentence ordered duly executed.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

	c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

22.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction.  Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed.

23.  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." 

24.  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.

25.  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. 
26.  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.

27.  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.

28.  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?

29.  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.  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.  He contends his attorney at trial was inadequate and incompetent.  He also contends the only witness against him was himself previously convicted of larceny and was given immunity to testify against him at trial.  These are issues to be brought up during the judicial process.  The ABCMR is not empowered to set aside a conviction.  The ABCMR 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.

2.  At the time of the applicant's discharge, PTSD was largely unrecognized by the medical community and DOD.  However, 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.
3.  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.

4.  The applicant did not serve overseas during his enlistment.  He served 
842 days in confinement.  The medical document from Lyons VA Domiciliary shows he had a diagnosis of PTSD when he was discharged from that facility.  However, there is no mention of what traumatic event caused his PTSD.   He completed the PTSD Residential Program on 30 October 2013.

5.  The evidence shows the applicant's trial by court-martial was warranted by the gravity of the offenses for which he was charged.  His conviction and discharge were effected in accordance with applicable laws and regulations and the discharge appropriately characterizes the misconduct for which he was convicted.

6.  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.

7.  Based on the foregoing, there is an insufficient basis to upgrade the applicant's discharge to a general discharge under honorable conditions or an honorable 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 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)                                         AR20140019455



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ABCMR Record of Proceedings (cont)                                         AR20140019455



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