IN THE CASE OF: BOARD DATE: 27 September 2016 DOCKET NUMBER: AR20150012190 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ___x____ ____x___ ___x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 27 September 2016 DOCKET NUMBER: AR20150012190 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the 20 October 1972 DD Form 214 to show: * Character of Service: "General, Under Honorable Conditions" * Grade, Rate or Rank: "PV2" * Pay Grade: "E-2" * Date of Rank: "19 May 1972" 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrade to a fully honorable discharge and reinstatement of the rank of private first class/pay grade E-3. _____________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: 27 September 2016 DOCKET NUMBER: AR20150012190 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 an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge and reinstatement of his rank/grade. 2. The applicant states his service-connected post-traumatic stress disorder (PTSD) should be a mitigating factor regarding the characterization of his discharge. He requests personal appearance before the Board and defers further argument to his counsel. 3. The applicant provides copies of: * Army Board for Correction of Military Records (ABCMR) Docket Number AR20130006844, dated 19 December 2013 * Secretary of Defense (SecDef) memorandum, dated 3 September 2014 * two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) * Purple Heart award orders * DD Form 215 (Correction to DD Form 214) * two letters from L__ R___, Medical Doctor * Department of Veterans Affairs (VA) medical record * VA rating decision * letter from Ms. S__ M. C___ COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests an upgrade of the applicant's UOTHC discharge to an honorable discharge and reinstatement of his rank/grade. 2. Counsel states the applicant's original request was denied by the ABCMR because there was no evidence that he suffered from a condition that interfered with his ability to perform his duties. a. He states the applicant was diagnosed with service-connected PTSD. In light of the SecDef's guidance on veterans claiming PTSD, the applicant's PTSD should be considered as a mitigating factor for his conduct that resulted in his UOTHC discharge. In addition, based on recent guidance from the SecDef, the time limitations for the submission of the application should be waived. b. Counsel provides background on the applicant's military service noting the applicant served honorably during his initial active duty enlistment period. The applicant reenlisted, served in Vietnam, was wounded in combat on 24 August 1971, and awarded the Purple Heart. He was medically evacuated to Okinawa and later transferred to Fort Gordon [sic], GA. c. After the traumatic experience of being shot, the applicant began showing signs of bad decision-making, including several periods of being absent without leave (AWOL). The applicant requested a discharge for the good of the service in lieu of trial by court-martial. He states the applicant was reduced in rank/grade from private first class (PFC)/E-3 to private (PV1)/E-1 and he was discharged on 20 October 1972. d. The applicant was diagnosed in 2008 with chronic, severe PTSD (recurrent) and severe Major Depressive Disorder (MDD) with psychotic features. He was also diagnosed with hypertension, diabetes, diabetes neuropathy, coronary artery disease, hepatitis C, sleep apnea, tardive akathisia, and acid reflux. Due to his disabilities, the applicant has been unemployed since 2002 and he relies on his sister (Ms. S__ M. C___) for many of his needs. e. Counsel states the applicant's UOTHC discharge is attributable to PTSD. The SecDef's guidance shows that if PTSD may reasonably be determined to have contributed to the misconduct, the PTSD-conditions "will be considered potential mitigating factors in the misconduct that caused the UOTHC characterization of service." f. Counsel refers to a case the ABCMR recently (favorably) decided pertaining to a Vietnam veteran that contained similarities with the applicant's case. Specifically, the applicant in that case had a traumatic combat experience (i.e., he was wounded in action), he received a diagnosis of PTSD after the experience, and the PTSD conditions were a causative factor in the misconduct (AWOL) that led to the discharge. 3. Counsel provides a letter and legal brief (summarized above). CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army (RA) on 8 September 1970 for a period of 2 years. Upon completion of training he was awarded military occupational specialty (MOS) 05B (Radio Operator Specialist). He was promoted to PFC (E-3) on 8 March 1971. 2. A DD Form 214 shows he was honorably discharged on 9 May 1971 to reenlist in the RA. He had completed 8 months and 2 days of net active service. 3. He reenlisted in the RA on 10 May 1971 for a period of 6 years. 4. On 21 July 1971, he was assigned overseas to Vietnam. He was assigned to Headquarters and Headquarters Company, 1st Battalion (Air Mobile), 7th Cavalry, 3rd Brigade (Separate), 1st Cavalry Division (Air Mobile) and served as a Radio Operator (Duty MOS 05B1O) from 26 July to 24 August 1971. a. On 24 August 1971, he was wounded in action and awarded the Purple Heart. b. He was medically evacuated to the 24th Evacuation Hospital (Okinawa). Then, on 1 September 1971, he was medically evacuated to Martin Army Hospital, Fort Benning, GA. c. On 19 October 1971, he was assigned to Headquarters and Headquarters Battery, 8th Battalion, 7th Air Defense Artillery, Fort Bliss, TX. 5. On 2 March 1972, at a special court-martial, the applicant was found guilty of being AWOL from 9 December 1971 to 6 January 1972. He was sentenced to be confined at hard labor for 45 days (suspended for 3 months), forfeiture of $100 pay per month for 3 months, and reduction to PV1/E-1. a. On 15 March 1972, the portion of the sentence to confinement at hard labor for 45 days was vacated and ordered executed. b. On 30 March 1972, the applicant was awarded MOS 94B (Cook) as his primary MOS (PMOS). c. Effective 19 April 1972, all unexecuted portions of the sentence to confinement at hard labor and forfeiture of pay were suspended until 18 May 1972. 6. On 2 May 1972, the applicant was reassigned to the 504th Quartermaster Company, Fort Campbell, KY. He was advanced to private (PV2)/E-2 on an unspecified date. 7. On 19 August 1972, court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ): * Article 86, for being AWOL – * from 6 to 15 July 1972 * from 15 to 18 July 1972 * from 19 to 26 July 1972 * on 1 August 1972 * Article 91, for disobeying a lawful order on 28 July 1972 8. On 12 September 1972, the applicant underwent a medical examination. The examining physician noted, "There is no reasonable grounds for belief that this individual is or ever has been mentally defective, deranged or abnormal. A psychiatric examination is not deemed to be appropriate." He found the applicant qualified for separation. 9. On 20 September 1972, an additional court-martial-charge was preferred against the applicant for violation of the UCMJ, Article 86, for being AWOL from 15 to 20 September 1972. 10. On 20 September 1972, the applicant consulted with legal counsel. He was informed of the charges against him for violating the UCMJ and that he was pending trial by court-martial. He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial. He voluntarily requested discharge for the good of the service in lieu of trial by court-martial. a. The company commander recommended disapproval of the request for discharge and noted that the discharge "leaves him with the same benefits available as a Soldier that has served honorably and met all of his obligations." The chain of command also recommended disapproval of the applicant's request for discharge and that he be furnished an undesirable discharge, if he was to be administratively discharged. b. On 20 October 1972, the separation authority approved the applicant's request for discharge, reduced him from PV2 (E-2) to PV1 (E-1), and directed that he be furnished an undesirable discharge. 11. A DD Form 214, as corrected by a DD Form 215, issued on 17 November 2011, shows the applicant entered active duty this period on 10 May 1971 and he was discharged on 20 October 1972 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, paragraph 10-2, for the good of the service in lieu of trial by court-martial, with an UOTHC characterization of service. He had completed 1 year, 2 months, and 19 days of net active service during this period and he had 83 days of lost time. It also shows his rank as PV1 (E-1). 12. On 26 May 1981, the applicant was notified that the Army Discharge Review Board denied his request for an upgrade of his discharge 13. On 19 December 2013, the ABCMR (in Docket Number AR20130006844) considered and denied the applicant's petition to upgrade the characterization of his discharge. 14. In support of the application the applicant and his counsel provide the following additional documents (that are not summarized/addressed elsewhere in this Record of Proceedings). a. VA Regional Office, Seattle, WA, letter, dated 25 September 2007, that shows a Veterans Service Center Manager informed the applicant that his military service for the period 8 September 1970 through 20 October 1972 does not entitle him to VA benefits. b. VA Medical Center (VAMC), Spokane, WA, medical record, dated 26 March 2008, that shows Dr. J__ S. S___, Staff Psychiatrist, prepared the report based on the applicant's final appointment prior to relocating to Atlanta, GA. It shows, in pertinent part, "PTSD by history, with significant nightmares/ anxiety exacerbated by parent-child problems and history of combat trauma/ childhood physical/sexual abuse, marijuana abuse, improved; Diabetes Mellitus; itching (neurotic component)." c. VAMC, Atlanta, GA, letter, dated 20 September 2010, that shows Dr. L__ R___, Staff Psychiatrist, confirmed the applicant has been treated in the Trauma Recovery Program (TRP) at the VAMC since 2 July 2008 and she personally has been treating him as his psychiatrist since 5 February 2009. She also confirmed he is diagnosed with PTSD, chronic, severe (attributed to traumatic experiences during his combat deployment during the Vietnam War); MDD, recurrent, severe; and marijuana dependence. She noted that the applicant did not have any psychiatric diagnoses prior to his deployment to the Vietnam War. She also outlined several other ailments that significantly impact the applicant's life. The psychiatrist concluded, "Therefore, it is my clinical opinion that [applicant's] PTSD diagnosis is the direct result of his traumatic combat exposure in Vietnam." d. A letter authored by Ms. S__ M. C___, dated 14 March 2011, that shows she is the sister of the applicant. She provided a summary of the applicant's military service and stated the applicant sustained injuries in Vietnam on 24 August 1971 "and several other troops died." She also stated, "It was also as a result of the wounds he sustained in the above action that [applicant] was administered to in the field with other bleeding Soldiers and then transferred to a medical facility where he required blood. Prior to serving and being in gun battle in Vietnam [applicant] appears to have been a regular Army guy. Following the action [applicant] had changed. He began to have difficulties with his superior officers and others to whom he was supposed to be subordinate. He began to disobey orders and was generally insubordinate." She provided information pertaining to his post-service conduct and characterized his behavior as being "unreasonable, reactionary, and belligerent." She also provided an extensive summary of his post-service marital problems, employment difficulties, and medical ailments and treatments. e. VAMC, Atlanta, GA, letter, dated 1 June 2015, that shows Dr. L__ R___, Staff Psychiatrist, confirmed the applicant has been treated in the TRP at the VAMC since 2 July 2008 and she personally has been treating him as his psychiatrist since 5 February 2009. She also confirmed he is diagnosed with PTSD, chronic, severe (attributed to traumatic experiences during his combat deployment during the Vietnam War); MDD, recurrent, severe with psychotic features; and marijuana dependence. She noted that the applicant did not have any psychiatric diagnoses prior to his deployment to the Vietnam War. She also outlined several other ailments that significantly impact the applicant's life. The psychiatrist concluded, "Therefore, it is my clinical opinion that [applicant's] PTSD diagnosis is the direct result of his traumatic combat exposure in Vietnam." 15. In the processing of this case, an advisory opinion was obtained from the Chief, Behavioral Health Division, Health Care Delivery, U.S. Army Medical Command G-3/5/7, Office of The Surgeon General (OTSG), Falls Church, VA. a. The official stated the ABCMR requested a determination as to whether the applicant's 20 October 1972 separation was due to PTSD or any other behavioral health (BH) condition. The advisory opinion is based solely on the information provided by the ABCMR as the Department of Defense (DoD) electronic medical record was not in use at the time of the applicant's service. b. The advisory official noted the applicant has been treated at the Atlanta VAMC in their TRP since 2008. He is diagnosed with PTSD, chronic, severe, secondary to combat trauma; MDD, recurrent, severe with psychotic features; and marijuana dependence. He has a history of voluntary and involuntary hospitalizations, a failed suicide attempt in 1975, and a long history of marijuana use that began in Vietnam. c. The advisory official found no BH record from the applicant's time in service. She noted his subsequent level of impairment in social and occupational functioning suggests that he developed symptoms of PTSD and MDD following his deployment to Vietnam. She opined that these symptoms were a mitigating factor in the misconduct that led to his UOTHC discharge. She added that the applicant's prior honorable service, his attempts to self-medicate with marijuana, and his subsequent diagnosis by the VA are consistent with this conclusion. 16. On 31 August 2016, the applicant was provided a copy of the OTSG advisory opinion to allow him the opportunity (30 days) to submit comments or a rebuttal. A response was not received from the applicant or his counsel. REFERENCES: 1. 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." 2. 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. 3. 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. 4. 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 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 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. 5. In view of the foregoing, on 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards 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 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 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 UOTHC 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 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. 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. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 10 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. Chapter 3, 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. Chapter 3, 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. 9. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-11 states that applicants do not have a right to a hearing before the ABCMR. The Director of the ABCMR or the chair of an ABCMR panel may grant a formal hearing whenever justice requires. DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant and his counsel is sufficient to render a fair and equitable decision at this time. 2. The applicant's contention that his discharge should be upgraded based on a diagnosis of PTSD was carefully considered. 3. Records show the applicant had honorable active duty service from 8 September 1970 through 9 May 1971 during which he attained the rank/grade of PFC/E-3. 4. The evidence of record shows the applicant's record of indiscipline began during the period after his initial enlistment, after he had been wounded in action while serving in Vietnam, and subsequent to his medical evacuation to the United States. 5. 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. 6. 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. 7. The evidence of record shows the applicant's record of indiscipline manifested after being discharged from the hospital and assigned to Fort Bliss, TX. a. He was convicted at a special court-martial for being AWOL from 9 December 1971 to 6 January 1972. b. He was reduced to PV1/E-1 and, while serving the portion of the sentence of confinement at hard labor for 45 days, he was awarded MOS 94B (Cook) as his PMOS. c. He was subsequently reassigned to the 504th Quartermaster Company, Fort Campbell, KY, and advanced to PV2 (E-2), presumably sometime after 18 May 1972. d. His subsequent misconduct resulted in court-martial charges being preferred for several periods of AWOL totaling 29 days of time lost. 8. There is no evidence he had a condition that rendered him unfit to perform the duties required of his office, grade, rank or rating at the time of his separation. 9. The applicant requested and accepted an undesirable discharge certificate with a characterization of UOTHC. 10. The applicant's available military service records show he experienced a traumatic event during the period of his reenlistment when he was wounded in action. a. The VA medical records show the applicant was diagnosed with PTSD/ PTSD-related symptoms by a competent mental health professional in 2008. They also show the applicant's PTSD may be attributed to traumatic experiences during his combat deployment during the Vietnam War. b. On 24 August 2016, the OTSG, opined that the evidence of record suggests the applicant developed symptoms of PTSD and MDD following his deployment to Vietnam. She opined that these symptoms were a mitigating factor in the misconduct that led to his UOTHC discharge. c. In view of the foregoing, it is reasonable to believe the applicant's PTSD condition existed during the period of service that is under review and that the condition was a causative factor in the misconduct that led to the 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) AR20150012190 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012190 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2