BOARD DATE: 16 August 2016 DOCKET NUMBER: AR20150004740 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __x______ ___x_____ ___x___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 16 August 2016 DOCKET NUMBER: AR20150004740 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 to amend the decision set forth in Docket Number AR20100025262, on 19 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. BOARD DATE: 16 August 2016 DOCKET NUMBER: AR20150004740 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 reconsideration of his earlier request for an upgrade of his under other than honorable conditions discharge. 2. The applicant states, in effect, he has had several medical issues including post-traumatic stress disorder (PTSD), exposure to Agent Orange, arthritis, AIDS acquired immune deficiency syndrome, combat fatigue, joint pain, and heat rash in the groin and joints. 3. The applicant provides: * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), issued in 1973 * DD Forms 4 (Enlistment Contract), issued in 1965 and 1968 * DA Form 20 (Enlisted Qualification Record) * Multiple nonjudicial punishments (NJP) 4. In response to a letter from the Army Review Boards Agency, he also provides his post-service medical records: * ECU (East Carolina University) Physicians summary of medical visit, dated December 2015 * List of medications and After Care Plan from Vidant Medical Center, Greenville, NC, showing he was discharged on 2 December 2015 * Information about a pneumothorax (collapsed lung) 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 Number AR20100025262, on 19 April 2011. 2. The applicant does not meet the criteria for a request for reconsideration because his request was not received within 1 year of the Board's original decision. However, in view of the Secretary of Defense's Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming PTSD, his request warrants consideration by the Board. 3. The applicant enlisted in the Regular Army (RA) on 24 December 1965 for a 3-year term. He was trained in and held military occupational specialty (MOS) 11C (Indirect Fire Infantryman). 4. He served in Germany from on or about 9 May 1966 to 18 April 1969. He was assigned to the 3rd battalion, 35trh Armor. 5. While in Germany, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on/for: * 13 April 1966, for absenting himself, without proper authority, from his unit on 8 April 1966 * 8 August 1966, for absenting himself, without proper authority, from his appointed place of duty on 30 July 1966 * 3 February 1967, for absenting himself, without proper authority, from his unit on 21 January 1967 * 17 March 1969, for dereliction in the performance of duty on 17 March 1969 6. Also while in Germany he was honorably discharged from active duty on 29 April 1968 for immediate reenlistment. His DD Form 214 for this period of service show he completed 2 years, 4 months, and 6 days of net active service. He was awarded or authorized the National Defense Service Medal and Expert Marksmanship Qualification Badge with Rifle Bar. 7. He reenlisted in in the RA for a 4-year term on 30 April 1968 and following completion of his Germany tour, he was assigned to Fort Lewis, WA. 8. He again accepted NJP under the provisions of Article 15 of the UCMJ on/for * 3 June 1969, for absenting himself, without proper authority, from his unit on 29 May 1969 * 21 November 1969, for absenting himself, without proper authority, from his appointed place of duty on 1 November 1969 and for failing to repair on 7 November 1969 9. He then served in Vietnam from 22 March 1970 to 2 April 1971. He was assigned to Headquarters, Headquarters and Service Battery, 4th Battalion, 77th Artillery, 101st Airborne Division (Airmobile). 10. While in Vietnam, he accepted NJP under the provisions of Article 15, UCMJ, on 21 August 1970, for absenting himself, without proper authority, from his appointed place of duty on 20 August 1970. 11. Following completion of his Vietnam tour, he again served in Germany from on or about 3 May 1971 to 16 December 1972. He again accepted NJP under the provisions of Article 15 of the UCMJ on/for: * 28 September 1971, for violating a lawful general regulation on 19 August 1971 * 3 December 1971, for absenting himself, without proper authority, from his appointed place of duty on 3 and 4 November 1971 12. Also in Germany, on 27 April 1972, he was convicted by a special court-martial of one specification of operating a privately owned vehicle with a suspended U.S. Army Europe (USAEUR) driver's license and seven specifications of absenting himself, without proper authority, from his appointed place of duty. The court sentenced him to a reduction to private (PV1)/E-1 and confinement at hard labor for 3 months (30 days suspended). 13. Also in Germany, on 27 June 1972, he was convicted by a special court-martial one specification of absenting himself, without proper authority, from his appointed place of duty and one specification of failing to go at the prescribed time to his appointed place of duty. The court sentenced him to a forfeiture of $190 pay for 1 month and confinement at hard labor for 30 days (suspended). 14. Summary Court-Martial Order Number 13, issued by Headquarters, 1st Battalion, 51st Infantry Regiment, 1st Armored Division, on 7 July 1972, vacated the suspension of his confinement at hard labor for 30 days, and ordered its execution at the U.S. Army Confinement Facility, Furth, Germany. 15. Summary Court-Martial Order Number 14, issued by Headquarters, 1st Battalion, 51st Infantry Regiment, 1st Armored Division, on 17 July 1972, remitted the unexecuted portion of his confinement at hard labor and Summary Court-Martial Order Number 20, issued by the same headquarters, on 11 August 1972, set aside that portion of his sentence in excess of the forfeiture of $190 pay. 16. On 20 July 1972, he was reported absent without leave (AWOL) from his unit, Company C, 1st Battalion, 51st Infantry Regiment, 1st Armored Division. He remained AWOL until he was returned to military control on 23 January 1973. 17. The complete facts and circumstances regarding his discharge are not available for review with this case. However, his records contain a duly-constituted DD Form 214 that show he was discharged under the provisions of Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, separation program number (SPN) 246, discharge for the good of the service - in lieu of trial by court-martial, with the issuance of a DD Form 258A (Undesirable Discharge Certificate). He completed 3 years, 3 months, and 2 days of net service during this period, with 241 days of lost time due to being AWOL and in confinement. 18. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. 19. On 19 April 2011, the Board reviewed his discharge processing based on his contention of PTSD but found insufficient evidence to support his contention. The Board denied his petition for an upgrade of his discharge. 20. On several occasions, a staff member of the Army Review Boards Agency corresponded with the applicant and requested he provide copies of the medical documents that support his issues of mental health and/or his VA medical documents. The applicant did not respond. 21. He originally provided with his application selected post-service civilian medical documents related to ongoing illnesses he currently has together with a listing of his medication. The Board forwarded his documents to The Office of The Surgeon General (OTSG) for review. OTSG rendered an advisory opinion in his case on 27 July 2016. a. The advisory official referenced the Diagnostic and Statistical Manual Fifth Edition; AR 40-501 (Standards of Medical Fitness), with revision, dated 4 August 2011; and AR 635-200 (Active Duty Enlisted Separations), dated 6 September 2011. b. The applicant entered active duty on 30 April 1968 and was discharged under conditions other than honorable on 13 March 1973, in accordance with AR 635-200, chapter 10. He deployed to Vietnam. He served a tour prior to his re-enlistment from which he was honorably discharged. c. He requested that the Board upgrade his discharge due to PTSD, and Agent Orange (Vietnam). OTSG was asked to determine if the applicant's military separation was due to PTSD or any other behavioral health (BH) condition. This opinion is based solely on the information provided by the Board as the Department of Defense (DOD) electronic medical record was not in use at the time of his service. d. On 7 July 2015, the Board requested that he provide medical documentation in support of his claim of PTSD. No response was forthcoming. Therefore, OTSG is unable to determine if his military separation was related to PTSD or any other BH condition. 22. The applicant was provided a copy of this advisory opinion to give him an opportunity to submit additional documents and/or a rebuttal. He did not respond. REFERENCES: 1. AR Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service. b. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. c. 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. 2. PTSD, an anxiety disorder, was not recognized as a psychiatric disorder until 1980 with the publishing of the Diagnostic and Statistical Manual of Mental Disorders (DSM) III. The condition is described in the current DSM-III-R, pages 247 through 251. While psychiatrists have only categorized PTSD as a distinct diagnosis since 1980, it has, as early as the Civil War, been described in psychological literature, variously labeled as shell shock, Soldier's heart, effect syndrome, combat fatigue, and traumatic neurosis. Although the current label of PTSD is of rather recent acceptance, the idea that catastrophes and tragedies can result in persistent emotional and psychological symptoms is common even among the lay public. 3. 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. 4. 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? 5. Although the DOD acknowledges that some Soldiers who were administratively discharged UOTHC 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: 1. The applicant's record is void of the complete facts and circumstances that led to his discharge. However, his record contains a DD Form 214 that shows he was discharged on 13 March 1973 under the provisions of chapter 10 of AR 635-200 in lieu of a trial by court-martial with an under other than honorable conditions discharge. 2. The issuance of a discharge under the provisions of chapter 10, AR 635-200, required the applicant to voluntarily, willingly, and in writing request discharge from the Army in lieu of trial by court-martial. It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. The applicant provided no information that would indicate the contrary. Further, it is presumed that the applicant's discharge accurately reflects his overall record of service. 3. The applicant does not provide the documentary evidence to corroborate his contention that he suffered from various medical/behavioral health issues during his military service. His contention that he was not properly evaluated for PTSD or other mental conditions is noted; however, there is no evidence in the available records, and none was provided by him, that supports he suffered from PTSD or other mental conditions. 4. His service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Based on his record of indiscipline, including multiple instances of NJP, two court-martial convictions, 241 days of lost time, and overall misconduct that started before he arrived in Vietnam; therefore, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory. There is insufficient evidence to upgrade his discharge to honorable or a general characterization of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150004740 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150004740 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2