IN THE CASE OF: BOARD DATE: 11 August 2016 DOCKET NUMBER: AR20150011206 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: 11 August 2016 DOCKET NUMBER: AR20150011206 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 of the ABCMR set forth in Docket Number AR20070009119, dated 20 November 2007. ______________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: 11 August 2016 DOCKET NUMBER: AR20150011206 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 prior request for an upgrade of his discharge under other than honorable conditions (UOTHC). 2. The applicant states: * he requests an upgrade of his discharge to obtain Department of Veterans Affairs (VA) benefits for his prostate cancer, hepatitis, heart disease, and post-traumatic stress disorder (PTSD) * he specifically requests review of his records from the period before he went absent without leave (AWOL) * he served his country in Vietnam, putting his life on the line * his life has been total confusion ever since he came back from Vietnam and he is doing his best to handle his PTSD * he was young and immature and went AWOL in a panic because the Army refused his request to be with his dying father * he was only granted 24 hours of leave * he should be able to get medical treatment from the VA 3. The applicant provides: * constituent assistance form, dated 11 May 2015 * letter from his Member of Congress to the Army Review Boards Agency (ARBA), dated 10 June 2015 * ARBA letter, dated 3 August 2015 * multiple VA letters, dated between 2007 and 2015 * VA Form 21-0960P-1 (Review PTSD Disability Benefits Questionnaire), dated 10 August 2015 * ARBA letter to his Member of Congress, dated 6 May 2014 * Long Beach VA Medical Center (VAMC) cumulative laboratory report from 12 March 2014 through 11 September 2014 * Long Beach VAMC Progress Notes from 13 August 2014, 20 October 2014, and 28 October 2014 * numerous miscellaneous documents from the VA, including appointment reminders, appointment dates/kept appointments, change of address notifications, photocopies of various membership and insurance cards, list of PTSD examples and effects * National Personnel Records Center letter, dated 29 July 2013 * death certificate for A____ I____ W____, dated 23 June 1976 * death certificate for B____ M____ W____, dated 27 January 1970 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 AR20070009119 on 20 November 2007. 2. The applicant provides multiple VA medical documents which are new evidence that warrant consideration by the Board at this time. 3. The applicant enlisted in the Regular Army on 22 January 1970. He served in Vietnam from 27 July 1970 through 6 October 1971. 4. He provided a copy of his mother's death certificate showing his mother passed away on 27 January 1970. 5. The Standard Form 513 (Clinical Record), dated 2 July 1971, shows he requested to see a psychiatrist while in pre-trial confinement in Vietnam. This form shows: a. He requested to see a psychiatrist because of a claimed nervousness he had all of his life since the age of 5 years old, but was recently exacerbated by tremulousness of his upper extremities, especially when aggravated or when trying to accomplish a manual task. He feared he might have structural damage to his nervous system. He refused tranquilizers. b. He was provisionally diagnosed with anxiety reaction. c. He gave the impression of obsessive-compulsive personality. He was not receiving treatment at the time, but treatment could prove useful to him after his release from the stockade and if psychological therapy were available. d. The gross neurologic examination was unremarkable. There was a slight tremor of hands present which increased when he was pressured to perform fine tasks. There was no evidence of a major mental illness. 6. Headquarters, 101st Aviation Group (Combat) (Airmobile), Special Court-Martial Order Number 54, dated 2 September 1971, shows he was arraigned and tried before a special court-martial at Camp Eagle, Vietnam, on 31 August 1971. He was charged with and found guilty of assaulting Staff Sergeant C____ C____, by cutting him in the left side with a knife on 24 May 1971. 7. He was sentenced to reduction in rank/grade to private/E-2 and forfeiture of $50.00 per month for 4 months. The sentence was approved on 2 September 1971. 8. His DA Form 3647 (Clinical Record Cover Sheet) shows he tested positive for heroin use on 15 October 1971 while participating in a mandatory screening program while in-processing to Fort Hood, TX, from Vietnam. He reported a history of heroin use over the past 2 months and was cooperative. He was diagnosed with improper use of heroin not involving addiction or dependence. The intensity of usage was deemed minimal and his rehabilitative potential was deemed excellent. 9. He departed Fort Hood, TX, in an AWOL status on 4 November 1971. Records indicate he was dropped from the Army rolls as a deserter on 3 December 1971. He claims he was AWOL because his chain of command denied his request for leave to see his dying father, only granting him 24 hours of leave. There is no evidence in his records of leave either granted or denied. 10. He was returned to military control on or about 27 April 1972 and records indicate he requested voluntary discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. His request is not in his available records for review, but the endorsements of his request from both the Commander, Company A, U.S. Army Personnel Control Facility, U.S. Army Training Center Engineer and Fort Leonard Wood, and the Commander, U.S. Army Personnel Control Facility, U.S. Army Training Center Engineer and Fort Leonard Wood, indicate they recommended approval of his request. He demonstrated he was unwilling to adjust to military service and any further disciplinary or rehabilitative action would be futile. 11. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged accordingly on 26 May 1972. He completed 1 year, 7 months, and 20 days of active service with 259 days of lost time from 23 May 1971 through 15 August 1971 and from 4 November 1971 through 26 April 1972. His service was characterized as UOTHC. He was 22 years old at the time of his discharge. 12. He provided a copy of his father's death certificate showing his father passed away on 23 June 1976. 13. He provided numerous medical documents and letters from the VA, summarized as follows: a. On 13 July 2012, he was notified that although he was not eligible for medical benefits at the Long Beach VA Hospital, he was eligible as a homeless veteran for services provided by community providers through the Grant and Per Diem Programs. Services included room and board and other services to help homeless veterans with employment, mental/emotional problems, and substance abuse. b. In an undated letter from the VA Long Beach Healthcare System, he was notified his doctor referred him to the Substance Abuse Treatment Clinic. c. Long Beach VAMC Progress Notes, dated 13 August 2014, show he was seen at the Primary Care-Mental Health Integration Clinic for initial psychiatric evaluation. It was noted the applicant was a tangential historian and, due to some discrepancies, the reliability of the provided history was unclear. He participated in stress management and relaxation classes. He previously took prescription medication for depression and fatigue and denied suicidal ideation. His prior diagnoses included ethanol, cocaine, and heroin use disorders. The psychologist wanted to rule out anxiety disorder (not otherwise specified), depressive disorder (not otherwise specified), and alcohol use and opioid use disorder in sustained remission. He recommended four to six short-term individual psychotherapy sessions to provide further assessment and treatment of anxiety and depression. d. Long Beach VAMC Progress Notes, dated 20 October 2014, show he was seen for a 60-minute individual psychotherapy session for the treatment of anxiety disorder (not otherwise specified). He reported frustration with his medications due to their side effects. He completed a Millon Clinical Multiaxial Inventory III assessment, the results of which showed major depressive disorder, persistent depressive disorder, and anxiety disorder as the diagnostic impressions. e. Long Beach VAMC Progress Notes, dated 28 October 2014, show he was seen in the Primary Care – Mental Health Integration Clinic for follow up psychiatric evaluation. He reported he was coping better, feeling better by practicing deep breathing and the strategies he learned in stress class. He reported crying for no reason but declined antidepressants. Treatment options were discussed, including use of amitriptyline, which he did not want to use due to prior side effects with his heart, speech, and blurred vision. f. A letter from the VA, dated 27 April 2015, shows the VA performed a character of discharge determination on 28 October 1975 and determined his Army service was dishonorable for VA purposes. He was notified of this decision on 30 October 1975 and again on 28 September 2007. Without an upgraded discharge, the VA would take no further action on his claims. g. VA Form 21-0960P-3, dated 10 August 2015, shows he does not now have nor was he ever diagnosed with PTSD. Under additional diagnoses, improper heroin use from Vietnam is listed. 14. An advisory opinion was obtained from the ARBA psychologist on 6 April 2016. It states: a. The applicant was administratively separated from the Army on 26 May 1972 under other than honorable conditions due to misconduct. His history of misconduct included: * assault of a staff sergeant, cutting him in the left side with a knife on 24 May 1971 * positive urinalysis for heroin use on 15 October 1971 * AWOL from on or about 4 November 1971 through 27 April 1972 b. In accordance with Army Directive 2014-28, subject: Requests to Upgrade Discharge by Veterans Claiming PTSD, and based on the information available for review, the applicant's records reasonably support major depressive disorder, persistent depressive disorder, and anxiety disorder existed at the time of his military service. These behavioral health conditions may be considered mitigating factors for his misconduct involving a positive urinalysis for heroin use and AWOL. They are not considered mitigating factors for the misconduct of assault of a staff sergeant by cutting him with a dangerous weapon. c. The requirement for a behavioral health examination prior to separation from the service in Title 10, U.S. Code, section 1177, is not applicable to this applicant as he was discharged from the Army on 26 May 1972 and this requirement was not signed into law until 28 October 2009. 15. The applicant was provided a copy of the advisory opinion on 7 April 2016 and given an opportunity to respond. He did not respond. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10, in effect at the time, provided that a member who had committed an offense or offenses for which the authorized sentence included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges were preferred. Although an honorable or general discharge could be directed, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. b. 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. 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. The Diagnostic and Statistical Manual of Mental Disorders (DSM), chapter 7, addresses trauma and stress or related disorders. The DSM is published by the American Psychiatric Association (APA) and provides standard criteria and common language for classification of mental disorders. In 1980, the APA added PTSD to the third edition of its DSM 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." 3. 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. 4. The fifth edition of the DSM 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 criterion 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; or (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; or (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; or (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); and (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, and (6) sleep disturbance. f. Criterion F – Duration: Persistence of symptoms (in Criteria B, C, D, and E) for more than 1 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. 5. 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 UOTHC 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 Soldiers' 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 a 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. 6. On 3 September 2014 in view of the foregoing information, 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 UOTHC 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 applicants' service. 7. Board for Correction of Military/Naval Records (BCM/NR) 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? 8. Although 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 records 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 UOTHC characterization of service. BCM/NRs will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of UOTHC. 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. BCM/NRs 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. 9. Title 38, Code of Federal Regulations, section 3.12, provides that pension, compensation, or dependency and indemnity compensation is not payable unless the period of service on which the claim is based was terminated by discharge or release under conditions other than dishonorable. A discharge under honorable conditions is binding on the VA as to the character of discharge. Section 3.12(c)(6) states benefits are not payable where the former service member was discharged UOTHC as a result of AWOL for a continuous period of at least 180 days. This bar to benefit entitlement does not apply if there are compelling circumstances to warrant the prolonged unauthorized absence. However, if a person was discharged or released by reason of the sentence of a general court-martial, only a finding of insanity or a decision of the ABCMR established under Title 10, U.S. Code, section 1552, can establish basic eligibility to receive VA benefits. 10. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. The applicant's request for an upgrade of his discharge UOTHC was carefully considered. 2. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10. The evidence shows he was found guilty of assault by a special-court martial, resulting in his demotion and confinement, and later charged with being AWOL from 4 November 1971 through 26 April 1972, an offense punishable under the Uniform Code of Military Justice that could have resulted in a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge to avoid trial by court-martial. 3. There is no evidence indicating he was not properly and equitably discharged in accordance with the regulations in effect at the time, that all requirements of law and regulations were not met, or that his rights were not fully protected throughout the separation process. 4. 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. 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. 5. A review of his military records and the evidence he provided shows no diagnosis of or treatment for PTSD. Records indicate he was diagnosed with anxiety, obsessive compulsive disorder, and heroin use while in the Army. Subsequent to his discharge, VA doctors diagnosed him with and treated him for major depressive disorder, persistent depressive disorder, anxiety disorder, and alcohol abuse. 6. The available documentation reasonably supports the applicant may have suffered from major depressive disorder, persistent depressive disorder, and anxiety disorder at the time of his military service. These behavioral health conditions may be considered mitigating factors for his misconduct involving heroin use and AWOL, but they are not considered mitigating factors for the misconduct of assault of a staff sergeant. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011206 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011206 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2