IN THE CASE OF: BOARD DATE: 13 October 2016 DOCKET NUMBER: AR20150012676 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: 13 October 2016 DOCKET NUMBER: AR20150012676 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20070018387, dated 8 May 2008, and Docket Number AR20090007849, dated 27 October 2009. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing his DD Form 214 to show the character of his service as general under honorable conditions. 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 upgrading his character of service to fully honorable. ___________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: 13 October 2016 DOCKET NUMBER: AR20150012676 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests reconsideration of his earlier requests to upgrade his undesirable discharge to honorable based on his post-traumatic stress disorder (PTSD) diagnosis. 2. The applicant states: a. The character of his military service should be upgraded from its current level to honorable. b. He was operating under the belief that he had no further recourse to upgrade his discharge. Secretary Hagel's memorandum prompted this action. 3. The applicant provides a letter from the Deputy Director, Genesee County Department of Veterans Services, dated 15 July 2015, whom he lists as counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests reconsideration of the applicant's earlier requests to upgrade his undesirable discharge to honorable under the clemency guidelines set forth by the Secretary of Defense. 2. Counsel states: a. His arguments and contentions were expressed in previous documents of record. He believes the applicant's case falls directly within the realm of cases referenced in the Secretary's guidelines. b. The applicant was awarded social security disability by the Social Security Administration. PTSD was the primary diagnosis in arriving at that agency's decision. c. He notes the Board gave great weight to an Army physician's opinion that the applicant's drug use as a teen was the biggest factor in his decision to be absent without leave (AWOL) after his return from Vietnam. That fact the applicant did not have drug offenses while serving on active duty stands as testimony that extraordinary weight should not be given to historical self-reports. Rather, he suggests the Army had a positive impact on the applicant's drug use, rendering it a non-issue with regard to performance of his duties. The applicant was able to earn promotion and achieve commendations for his military performance after entering the Army. d. Language in the final Board denial determination stated the applicant's drug use before the military was the biggest factor in the poor decision that led to his being AWOL and his current character of discharge. However, a look at the facts reveals the applicant was able to succeed in the military until he went on an extended leave without proper authority after he returned from Vietnam. This serves to support a conclusion that given overall satisfactory performance in the military prior to Vietnam and the decision to be AWOL after Vietnam, it was most likely something that happened in Vietnam that should be given more weight as probable cause. e. Further, the fact that the applicant's PTSD (due to Vietnam) has led to authorization for social security disability speaks to the severity of his symptoms and supports the conclusion that PTSD is the most likely reason he chose in favor of immediate relief over long-term lifetime goals. f. Symptoms now recognized as elements of PTSD are present in the charges brought against the applicant in his special court-martial. He was portrayed as reckless in judgment regarding his propensity to not adhere to military rules of behavior. Reason number 5 declared "Soldier has repeatedly shown a complete lack of interest in becoming a satisfactory soldier and his conduct indicates that he will never serve any useful purpose while in the service." This declaration was made in spite of the fact that the "Soldier" in question was awarded the Army Commendation Medal a short few months before. The most telling factor is the discharge under other than honorable conditions was not recommended due to unsuitability, but instead because the Army preferred to waive any further efforts at rehabilitation. 3. Counsel provides: * Secretary of Defense memorandum, dated 3 September 2014 * previous arguments from the Veterans Affairs and Rehabilitation Director, American Legion Department of Michigan * Social Security Administration documentation * undated letter from the applicant's doctor diagnosing him with PTSD * service personnel records * 2008 and 2009 Army Board for Correction of Military Records (ABCMR) Records of Proceedings CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous considerations of the applicant's case by the ABCMR in Docket Number AR20070018387 on 8 May 2008 and Docket Number AR20090007849 on 27 October 2009. 2. The applicant's argument that his case falls directly within the realm of cases referenced in the Secretary of Defense's memorandum, dated 3 September 2014, subject: Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming PTSD, is new evidence that was not previously considered by the Board and warrants consideration at this time. 3. The applicant enlisted in the Regular Army on 27 August 1969 for a period of 3 years. 4. On 9 April 1969, nonjudicial punishment was imposed against him for being absent from formation. 5. He arrived in Vietnam on 9 May 1969. On 8 August 1969, nonjudicial punishment was imposed against him for being derelict in the performance of his duties by sleeping while on night duty. 6. He was awarded the Army Commendation Medal on 25 January 1970 for meritorious achievement in the Republic of Vietnam from 1 August to 31 December 1969. 7. He departed Vietnam on 7 April 1970. 8. On 18 August 1970, he was convicted by a special court-martial of three specifications of failing to go at the time prescribed to his appointed place of duty and one specification of being AWOL from 8 July until 5 August 1970. He was sentenced to confinement at hard labor for 2 months, forfeiture of $50.00 pay per month for 2 months, and reduction to E-1. On 27 August 1970, the convening authority approved the sentence. 9. He underwent a mental status evaluation on 4 September 1970. The psychiatrist diagnosed him with a character and personality disorder manifested by chronic drug abuse and determined his condition existed prior to service; he had no mental disease or condition sufficient to warrant disposition through medical/psychiatric channels. He was cleared for any administrative action deemed appropriate by his command. 10. On 25 September 1970, he was notified of his pending separation for unfitness under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability). His commander cited his propensity for AWOL and his admitted abuse of drugs as the basis for the recommendation for discharge. 11. On 29 September 1970 after consulting with counsel, he waived his rights and acknowledged that he understood he might expect to encounter substantial prejudice in civilian life in the event an undesirable discharge were issued to him. He elected not to make a statement in his behalf. 12. On 12 October 1970, the separation authority approved the recommendation for separation and directed the issuance of an Undesirable Discharge Certificate. 13. He was discharged under other than honorable conditions (UOTHC) on 15 October 1970 under the provisions of Army Regulation 635-212. He completed 1 year, 10 months, and 21 days of total active service with 88 days of lost time. The separation program number 28B shown on his DD Form 214 represents unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities. 14. There is no evidence of record showing he was diagnosed with PTSD prior to his discharge. 15. In March 1985, the Army Discharge Review Board denied his request for a discharge upgrade. 16. He provided a letter from the Social Security Administration, dated 10 October 2007, stating he met the medical requirements for disability payments. This letter also states, "You said that you were disabled because of PTSD, bone tumor, shoulder and elbow pain, arthritis, and mirgraines [sic]." 17. On 8 May 2008, the ABCMR denied his request for an upgrade of his undesirable discharge. 18. On 27 October 2009, the ABCMR denied his request for reconsideration for an upgrade of his undesirable discharge. 19. He provided the last page of an undated letter from his physician diagnosing him with chronic PTSD. 20. An advisory opinion was rendered by the Chief, Behavioral Health Division, Office of the Surgeon General, dated 26 August 2016, wherein he stated: a. The applicant entered active duty on 27 August 1968 and was discharged UOTHC on 15 October 1970. He served 1 year in Vietnam. b. This opinion is based solely on the information provided by the Board as the Department of Defense Electronic Medical Record was not in use at the time of the applicant's service. c. Although there are no behavioral health records available from this time in service, records indicate he was subsequently awarded social security disability based on a primary diagnosis of PTSD. d. It is plausible that PTSD secondary to combat trauma was a mitigating factor in the applicant's incidents of misconduct, all of which occurred after his return from Vietnam. His behaviors, including the decision to be AWOL with only a few weeks of active duty service remaining, are consistent with impaired judgement often seen in PTSD. Thus, it is more likely than not that his separation was due to PTSD. 21. A copy of this advisory opinion was provided to the applicant for comment and/or rebuttal. He did not respond. 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. Paragraph 6a(1) provided that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. An undesirable discharge was normally considered appropriate. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority 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 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. 3. 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. a. In 1980, the APA added post-traumatic stress disorder (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." b. 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 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 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. 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? 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. DISCUSSION: 1. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The type of discharge directed and the reasons were appropriate considering all the facts of the case. 2. PTSD was largely unrecognized by the medical community and DOD at the time of his discharge. 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 recharacterization of their overall service. 4. He contends he was suffering from PTSD due to his service in Vietnam and he provided a letter from his physician showing he was diagnosed with chronic PTSD. 5. The medical advisory official states it is plausible that PTSD secondary to combat trauma was a mitigating factor in the applicant's incidents of misconduct, all of which occurred after his return from Vietnam. His behaviors, including the decision to be AWOL with only a few weeks of active duty service remaining, are consistent with impaired judgement often seen in PTSD. Thus, it is more likely than not that his separation was due to PTSD. 6. It is therefore reasonable to conclude that his PTSD was a causative factor in the misconduct that led to his discharge. After carefully weighing that fact against the severity of his misconduct, there is sufficient mitigating evidence to warrant upgrading the character of his service to general under honorable conditions. However, in weighing those same factors, the applicant's overall service did not rise to a fully honorable character of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012676 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012676 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2