IN THE CASE OF: BOARD DATE: 19 July 2016 DOCKET NUMBER: AR20150005807 BOARD VOTE: _____X____ ___X____ _____X___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 19 July 2016 DOCKET NUMBER: AR20150005807 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he received a general discharge effective 10 July 1969 and issuing the appropriate documents to support this decision. ______________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: 19 July 2016 DOCKET NUMBER: AR20150005807 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, through a voluntary court remand, an upgrade of his undesirable discharge. 2. The remand action, dated 25 March 2015, remanded this case to the Army Board for Correction of Military Records (ABCMR) for consideration of the applicant’s claim in accordance with the principles discussed in the Hagel Memorandum. The motion for remand stated: The Hagel Memorandum provides a substantial and legitimate basis for remanding the plaintiff’s claims to the ABCMR. The proposed remand would allow the ABCMR to consider the plaintiff’s claim under the new guidance and determine whether his discharge status should be upgraded. 3. The applicant provides a letter from his counsel and medical records related to his diagnosis and treatment for post-traumatic stress disorder (PTSD). COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests a finding that the applicant’s PTSD is service connected. Counsel argues that the evidence submitted indicates that the applicant’s conduct was more likely than not caused by the symptoms of his PTSD during his period of service. As such, he should be deemed eligible for Department of Veterans Affairs (VA) disability benefits and granted service connection for PTSD. 2. Counsel states that on 24 June 2014 the VA denied the applicant service connection disability benefits based on the characterization of his discharge. The VA indicates that the applicant’s discharge was under conditions that constitute a bar to VA benefits. The circumstances of his discharge warrant review and a reversal of the determination of his discharge. 3. Counsel cites: “38 CFR 3.159(c)(4)(C); PVA v Secretary of VA, 345 F.3d 1334, 1341-44 (Fed. Cir. 2003); Shade v. Shinseki, 24 Vet. App. 110, 118 (2010); 38 CFR 3.156(a)” as applicable precedents. 4. Counsel provides a chronological record of the applicant’s military history, mental health care treatment, and various appeals to the VA and this Board. 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 ABCMR in Docket Number AR20120022538 on 25 July 2013, and administrative record. 2. The applicant served in the Regular Army from 1 September 1966 until he was discharged on 10 July 1969 under conditions other than honorable in accordance with Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness. 3. A review of his military records shows he: * was promoted to the rank of specialist four/pay grade E-4 * held the primary military occupational specialty of 91B (medical specialist) * served in Vietnam from 22 August 1967 to 22 August 1968 performing the duties of a medical technician 4. His disciplinary record includes the following misconduct: * failing to obey a lawful order (Article 15, 5 April 1968) * being absent without leave (AWOL) from 2 to 20 November 1968 * dereliction of duties, wrongful use of provoking gestures, twice disobeying a lawful order, wrongfully using reproachful words, wrongfully appearing at his duty station without a name tag or hat and in need of a haircut, and failing to go at the time prescribed to his appointed place of duty (Article 15, 28 April 1969) * special court-martial conviction for using disrespectful language, disobeying a lawful order, threatening a Soldier, and kicking a Soldier in the groin 5. He was discharged with an Undesirable Discharge Certificate on 10 July 1969. He completed 2 years, 7 months, and 9 days total active service with 91 days of lost time. The authority for discharge shown on his DD Form 214 (Armed Force of the United States Report of Transfer or Discharge) was Army Regulation 635-212, separation program number (SPN) 264 (unsuitability – character and behavior disorder, i.e., personality disorder). 6. On 1 September 1971, the Army Discharge Review Board (ADRB) denied his request to upgrade his discharge, but directed correction his DD Form 214 to show SPN 28B (unfitness – frequent involvement of a discreditable nature with civil or military authority). A DD Form 215 (Correction to DD Form 214), dated 15 September 1971, changed his SPN to 28B. 7. Subsequently, the ADRB, in accordance with the Department of Defense Discharge Review Program (Special) (DOD SDRP), examined his record and upgraded his discharge to honorable, effective 28 May 1977. He was issued a new DD Form 214 to reflect this change. The board indicated that the applicant met the criteria for the program based on his completion of an assignment in Southeast Asia and a good post-service citizenship record. Further, the board stated that his deprived background, age, and personal problems may have contributed to the acts which led to his discharge. 8. The ADRB completed a preliminary review of the above determination and notified the applicant on 14 July 1978 that he did not qualify for an upgrade under the new uniform standards for discharge review under the provisions of Public Law 95-126. The ADRB found that the applicant’s record included several Article 15s and a special court-martial conviction. His tendency toward violence as a way of solving problems was reflected in the charges for which he was convicted by court-martial. The Board could not reconcile his behavior with that expected of one deserving an honorable discharge. All subsequent appeals to the ADRB on this matter were denied. 9. On 20 July 1978, the Adjutant General of the Army corrected the applicant’s DD Form 214 to show in item 27 (Remarks) the entry: ? [Discharge] reviewed [under the provisions of Public Law] 95-126 and a determination made that characterization of service was warranted [under the provisions of] DOD SDRP 4 Apr 77.? 10. On 25 July 2013, the ABCMR denied the applicant’s request to affirm his honorable discharge. 11. The applicant provides: a. an order of hospitalization, filed 21 September 1970, finding the applicant was mentally ill and ordering him for treatment at the New Mexico State Hospital. b. three PTSD diagnosis and progress reports from the clinical director of the Substance Abuse and Trauma Rehabilitation Residence (STARR) program. The director states on 7 February 2012 that the actions leading to his undesirable discharge were, in her professional opinion, certainly a byproduct of the PTSD caused by his service as a combat medic. c. a Psychological Evaluation, completed on 1 May 2014. A licensed psychologist concurred with the PTSD diagnosis and the origin as stated above. Further, he states that PTSD was not included as a diagnosable condition until the mid-1980s. As such, many prior diagnoses given to patients occurred out of ignorance and in light of the information and knowledge available at the time of the diagnosis. He believes the applicant’s negative actions and conduct in the military that found him ?undesirable? also arose as symptoms of PTSD. d. a PTSD diagnosis from a physician at the Veterans Disability Alliance. 12. An advisory opinion obtained from a clinical psychologist at the Army Review Boards Agency opined that based on the information available for review the applicant?s record reasonably supports PTSD leading to psychosis existing at the time of his military service. Additionally, his behavioral health condition may be considered a likely causative factor in his misconduct resulting in his discharge. The applicant was provided a copy of the advisory opinion, but did not respond REFERENCES: 1. On 4 April 1977, DOD directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973. In the absence of compelling reasons to the contrary, this program, known as the DOD SDRP, required that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, was wounded in action, was awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge. Consideration of other factors, including possible personal problems that may have contributed to the acts of misconduct that led to the discharge and a record of good citizenship since the time of discharge, would also be considered upon application by the individual. 2. In October 1978, Public Law 95-126 was enacted. This legislation required the Service Departments to establish historically-consistent uniform standards for discharge reviews. Reconsideration of all discharges previously upgraded under the DOD SDRP was required using these uniform standards. Individuals whose DOD SDRP upgrades were not affirmed upon review under these historically-consistent uniform standards were not entitled to VA benefits unless they had been entitled to such benefits before their DOD SDRP review. 3. The Board has been advised in similar cases that the VA often requires validation or affirmation of SDRP upgrades by the military service corrections boards, in this case the ABCMR, in order to authorize the service member VA benefits. 4. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, governs the policies and procedures for the separation of enlisted personnel. a. 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. b. Paragraph 3-7b provides that 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. 5. 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). 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." 6. 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. 7. The fifth revision of the DSM (DSM-5) was released in May 2013. This revision included 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: * the first criterion concerns a history of exposure to a traumatic event that meets specific stipulations (stressor) * the second through fifth criterion concerns 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 * 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. 8. 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, 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 that 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. 9. 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. 10. 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? 11. 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: 1. The applicant's discharge proceedings were conducted in accordance with the law and regulations in effect at the time. The characterization of his discharge was commensurate with his reason for discharge and overall record of military service in accordance with the governing regulations in effect at the time. 2. At the time of his 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 re-characterization of their overall service. 4. When determining if PTSD was the causative factor for an applicant's misconduct and whether an upgrade is warranted, the ABCMR must consider many factors, including but not limited to: * whether or not the applicant's record contains documentation of a diagnosis of PTSD or PTSD-related symptoms * whether or not the applicant provided documentation of a diagnosis of PTSD or PTSD-related symptoms rendered by a competent mental health professional representing a civilian healthcare provider * whether or not it is reasonable to determine that PTSD or PTSD-related conditions existed at the time of the applicant's discharge * whether or not the applicant's condition was determined to be incurred during or aggravated by military service * the presence of mitigating factors exist in the applicant's case * a history of misconduct prior to the occurrence of the traumatic event 5. A review of the applicant's record and the evidence he provided shows he was subjected to the ordeals of war while serving in Vietnam. Subsequent to his experiences in Vietnam, medical evidence shows he was diagnosed with PTSD/PTSD-related symptoms by a competent mental health professional. His PTSD was attributed to his combat service in Vietnam. Therefore, it is reasonable to assume his PTSD condition(s) existed at the time of his discharge. 6. His discharge was upgraded to an honorable discharge under the DOD SDRP on 25 May 1977; however, upon review, the ADRB determined the applicant failed to qualify for an upgrade under the criteria identified under Public Law 95-126 and denied him affirmation of his honorable discharge because the DOD SDRP decision did not meet historically-consistent uniform standards. He ultimately petitioned the ABCMR, which denied his request on 25 July 2013. 7. Notwithstanding the determination by the ABCMR in 2013 and taking into consideration Secretary Hagel’s 2014 memorandum to the BCMRs, the evidence now suggests the applicant's PTSD was a causative factor in the misconduct that led to his discharge and its associated characterization of service. After carefully weighing that fact against the severity of his misconduct, the evidence supports an upgrade to a general discharge. This same evidence demonstrates that his service did not meet the criteria for a fully honorable discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150005807 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150005807 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2