IN THE CASE OF: BOARD DATE: 1 September 2016 DOCKET NUMBER: AR20150005714 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 IN THE CASE OF: BOARD DATE: 1 September 2016 DOCKET NUMBER: AR20150005714 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. IN THE CASE OF: BOARD DATE: 1 September 2016 DOCKET NUMBER: AR20150005714 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, through his Center for Veterans Issues representative, requests an upgrade of his general discharge under honorable conditions to an honorable discharge and a correction to his separation program number (SPN) to ?JFL.? 2. The applicant states his case warrants consideration under the Secretary of Defense 3 September 2014 memorandum concerning Veterans claiming post-traumatic stress disorder (PTSD) as a causative factor for their misconduct that led to their discharge. His case should be reviewed as an exception to this policy guidance. His undiagnosed combat-related PTSD was present during the period of his service. There is mitigating evidence of the existence of an undiagnosed combat-related PTSD or PTSD related conditions including schizophrenia and depression as the causative factors in the issuance of his general discharge under honorable conditions. During his service in Vietnam he was awarded a combat bronze star. 3. The applicant and counsel provide: * service medical records * Department of Veterans Affairs (VA) Progress Notes * VA Rating Decisions dated 11 July 1997 and 10 October 1997 * DD Form 214 (Report of Separation from Active Duty) issued in accordance with the Department of Defense (DOD) Special Discharge Review Program (SDRP) * excerpts from Title 10, U.S. Code, sections 1552 and 1553 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. On 27 January 1966 the applicant enlisted in the Regular Army. 3. He served in Vietnam from 2 May 1967 to 30 April 1968 with the 9th Infantry Division as a petroleum storage specialist. His disciplinary record includes: * two special court-martial convictions for damaging military property, striking a military policeman, and being absent without leave (AWOL) * a summary court-martial conviction for assault * three nonjudicial punishments under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for sleeping on duty, unclean accouterments, and AWOL 4. On an unknown date, the applicant's immediate commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), by reason of unfitness. The commander recommended an undesirable discharge. 5. On 25 July 1968 he underwent a psychiatric evaluation by a military psychiatrist. He was diagnosed with schizoid personality (code 3200). The psychiatrist stated the applicant did not display any potential for retention or rehabilitation in a military setting. He opined, ?The applicant appears to be somewhat withdrawn and seclusive, not seeking the company of his peer group. His actions appear to be somewhat manipulative and designed to meet his immediate needs with little regard for the consequence of his actions.? 6. On 1 August 1968, the applicant acknowledged receipt of the separation memorandum and subsequently consulted with legal counsel. He was advised of the basis for the contemplated separation action for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of a general discharge or an undesirable discharge, and the procedures/rights available to him. He waived consideration of his case by a board of officers, he waived a personal appearance before a board of officers, and he declined to make a statement in his own behalf. He also acknowledged he understood: * he could expect to encounter substantial prejudice in civilian life in the event that a general discharge was issued to him * he could be ineligible for many or all benefits as a veteran under both Federal and State laws in the event an undesirable discharge was issued to him 7. On 13 August 1968, the applicant's immediate commander recommended the applicant's separation from the Army under the provisions of Army Regulation 635-212 by reason of unfitness. The immediate commander indicated that the applicant’s discharge was warranted because of his pattern of misconduct. The immediate commander recommended the issuance of an Undesirable Discharge Certificate. 8. On 27 August 1968, after having determined the applicant was unsuitable for further military service, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-212 by reason of unfitness and directed the issuance of an Undesirable Discharge Certificate. The applicant was accordingly discharged on 10 September 1968. 9. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-212, for unfitness and issued an Undesirable Discharge Certificate. He completed 2 years, 6 months, and 13 days of total active service characterized as under conditions other than honorable. His SPN number was 28B. He received the following awards and decorations as noted on his DD Form 214: * Vietnam Service Medal (1 Bronze Service Star) * Republic of Vietnam Campaign Medal with Device (1960) * Sharpshooter Marksmanship Qualification Badge with Rifle Bar 10. The Army Discharge Review Board (ADRB) under the criteria of the DOD SDRP upgraded his discharge to general under honorable conditions effective 6 July 1977. The ADRB stated in its case record that the applicant’s record of service was not sufficiently meritorious to warrant an honorable discharge notwithstanding his combat service. He was re-issued a DD Form 214. His authority and reason for separation remained the same to include his SPN code. However, a second separation program designator (SPD) code was added based on the DOD SDRP. The second SPD code was ?KCR.? 11. The ABCMR denied his request for a medical retirement on 24 June 1998. The Record of Proceedings includes a medical advisory opinion, dated 23 January 1998, from the Army Review Boards Agency’s (ARBA) medical advisor stating: a. The applicant had both a mental status examination and a separation physical examination prior to his separation from the Army in 1968. The examining psychiatrist stated the applicant had a schizoid personality, which is a personality disorder and not a medical disability, it is expected to be life-long in duration and his condition existed prior to service (EPTS), and is not a psychiatric disability. Specifically, the psychiatrist stated, ?There are no disqualifying mental defects sufficient to warrant disposition through medical channels.? b. The fact the applicant was diagnosed with a psychiatric condition years after his separation in no way negated the opinion of the psychiatrist who examined the applicant in 1968. This was the purpose of the mental status examination. 12. On 17 October 2003, he applied to the ABCMR for a discharge upgrade to an honorable discharge. He stated he had PTSD and schizoid personality. 13. On 17 September 2004, the ABCMR denied his request for an upgrade of his discharge stating that his PTSD diagnosis from the VA came years after his discharge. The VA rating did not in and of itself provide proof that at the time of his separation he was suffering from PTSD and that it was the cause of his misconduct. 14. The applicant submitted his post service VA medical records which show he was diagnosed and received treatment for PTSD post service. REFERENCES: 1. Army Regulation 635-212 in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability. This regulation provided that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. A discharge under other than honorable conditions was normally considered appropriate. However, at the time of the applicant's separation, the regulation provided for the issuance of an undesirable discharge. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, stated 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. 3. Army Regulation 635-5 (Personnel Separations – Separation Documents), in effect at the time, prescribed the separation documents that would be furnished each individual who was separated from the Army. The SPN is used in statistical accounting to represent the specific authority and reason for separation. At the time the SPN 28B was authorized for separations under the provisions of Army Regulation 635-212 with the following associated narrative reason: "Unfitness – Frequent involvement in incidents of a discreditable nature with civil or military authorities." 4. Army Regulation 635-5-1 (SPD Codes), effective 20 September 2011, prescribes the specific authorities (statutory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. Table 2-3 (SPD codes applicable to enlisted personnel) shows that SPD ?JFL? is applicable to Soldiers separated for disability and entitled to severance pay under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3) 5. 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. 6. 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? 7. 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. 8. Title 38, Code of Federal Regulations (CFR), Section 3.12(e) states an honorable discharge or discharge under honorable conditions issued through a board for correction of records established under authority of Title 10, U.S. Code, section 1552 (10 USC 1552) is final and conclusive on the VA. The action of the board sets aside any prior bar to benefits imposed under paragraph (c) or (d) of this section. 9. Title 38, CFR, Section 3.12(h) states unless a discharge review board established under 10 USC 1553 determines on an individual case basis that the discharge would be upgraded under uniform standards meeting the requirements set forth in paragraph (g) of this section, an honorable or general discharge awarded under one of the following programs does not remove any bar to benefits imposed under this section: a. The President’s directive of 19 January 1977, implementing Presidential Proclamation 4313 of 16 September 1974; or b. DOD SDRP effective 5 April 1977; or c. Any discharge review program implemented after 5 April 1977, that does not apply to all persons administratively discharged or released from active military service under other than honorable conditions. DISCUSSION: 1. The applicant requests an upgrade of his general discharge under honorable conditions to an honorable discharge as an exception to the Secretary of Defense 3 September 2014 memorandum. In addition, he and his representative state his SPN should be changed to ?JFL.? 2. He underwent a mental status examination prior to his discharge which found he suffered from a schizoid personality (EPTS), but found no disqualifying mental defects sufficient to warrant disposition through medical channels. The characterization of his service was under other than honorable conditions due to his extensive disciplinary history. On 2 August 1977, his discharge was upgraded to under honorable conditions (general), effective 10 September 1968, in accordance with a decision made by the DOD SDRP. He met the criteria for this program based on his combat service in Southeast Asia. 3. The available documentation reasonably supports a conclusion that PTSD and schizophrenia (paranoid type) may have existed during his service. Both may have been mitigating factors for the misconduct that resulted in his discharge with service characterized as under other than honorable conditions. a. PTSD may have been a mitigating factor for his failing to go to the appointed place of duty at the prescribed time, AWOL, use of narcotic drugs, and violating the speed limit. b. Schizophrenia, on the other hand, may have been a mitigating factor for the remainder of the behaviors that led to his separation. The symptoms of schizophrenia can include disturbances in sleep pattern (e.g., sleeping during the day), which might explain his falling asleep on post. Additionally, many studies have reported that subgroups of individuals diagnosed with schizophrenia have a higher incidence of assaultive and violent behavior. 4. The 3 September 2014 Secretary of Defense memorandum specifically asked the Boards to carefully review former Soldiers' records upon application who received an under other than honorable conditions discharge. The applicant received a general discharge under the authority of the DOD SDRP. An honorable characterization of service is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel. An under honorable conditions (general) character of service is appropriate for those Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. His service did not rise to the level of a fully honorable discharge. 5. Correcting the applicant?s record to show SPD ?JFL? is in direct violation of regulatory guidance. This specific code refers to Soldiers who are separated based on a disability and entitled to disability severance pay under the provisions of Army Regulation 635-40. It is noted throughout these proceedings that the applicant was separated under the provisions of Army Regulation 635-612. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150005714 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150005714 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2