IN THE CASE OF: BOARD DATE: 8 December 2016 DOCKET NUMBER: AR20150013532 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: 8 December 2016 DOCKET NUMBER: AR20150013532 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20040002219, dated 10 March 2005. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant's DD Form 214 for the period ending 5 October 1971 to show his characterization of service as general, under honorable conditions. ___________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: 8 December 2016 DOCKET NUMBER: AR20150013532 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 request to, in effect, upgrade his undesirable discharge under other than honorable conditions. 2. The applicant states, in effect: a. He was discharged under the provisions of chapter 10 (Discharge for the Good of the Service), Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Personnel). At the time of his discharge, he was promised his character of service would be upgraded to honorable after 6 months as long as he kept out of trouble. He did his part by not getting into trouble. b. On two separate occasions, he completed a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the U.S.), but the upgrade was never granted. In September 2014, the Secretary of Defense issued new guidance on upgrading discharges. He believes he is eligible under this guidance. c. He does not want to excuse his actions, but he had a good, if not perfect, record. He was rated as excellent by all of his commanders, and was promoted more than once. Things began to change, however, when he got some letters from his friends and family. No one came out and told him what was going on, but when he went back home on leave, he learned his parents had split up, his sister was in a foster home, and their house was being sold for lack of care. His father had quit his job of 22 years and moved to South Carolina, and his mother had a "friend" staying with her. He was shocked and overwhelmed by all that happened. He had to live with his uncles and saw his parents and sister when he could. d. He started his second tour, and his performance was less than stellar. He had originally planned to make the Army a career; his family had a history of military service dating back to World War I. His mother, however, dragged him out of country before his time was up. A Judge Advocate General's Corps officer at Fort Benning, GA, suggested he resign. He fulfilled his part of the bargain and avoided getting into trouble for 6 months following his discharge. He is only asking the Board to grant what was promised. e. The time he spent in Vietnam was behind his sleeplessness and caused him to become homeless. He was unable to maintain both employment and his personal relationships. At the time of his discharge, he was probably suffering from unacknowledged post-traumatic stress disorder (PTSD). f. During a September 2005 review of his supplemental security income (SSI) by the Social Security Administration (SSA), the judge questioned his psychiatrist about an evaluation that mentioned his two tours in Vietnam, and which ascribed this service as contributing to his occasional nightmares and hyper-vigilance. His anxiety medications were also mentioned, none of which had helped. He is now seeing another doctor in Washington State, and this doctor has prescribed alprazolam [a sedative for anxiety and panic disorder]. 3. The applicant provides: * letter, dated 7 July 2015, from the Army Review Boards Agency (ARBA), addressed to the applicant's Congressional Representative * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), ending 5 October 1971 * extract of DA Form 20 (Enlisted Qualification Record) * DD Form 293, dated 20 October 2014 * memorandum, dated 3 September 2014, Subject: Supplemental Guidance to Military Boards for Correction of Military/Naval Records (BCM/NRs) Considering Discharge Upgrade Requests by Veterans Claiming PTSD * printout for a news article, titled, "VFW Applauds New Discharge Upgrade Decision" * two letters, dated 18 March 2004 and 18 April 2012, respectively; addressed to the applicant from the Department of Veterans Affairs (VA) * DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), undated, associated with his initial request for relief * VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative), dated 26 January 2012 * VA Form 21-4138 (Statement in Support of Claim), dated 26 January 2012 * VA Form 21-526 (Veterans Application for Compensation and/or Pension), dated 26 January 2012 * extract from an SSA decision, dated 23 September 2005 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 AR20040002219 on 10 March 2005. 2. Based on the applicant’s claim that he has PTSD, his application is being reviewed under the 2014 Secretary of Defense's guidance to Military BCMR/NR. 3. The applicant enlisted in the Regular Army on 15 November 1968. He was assigned to Fort Jackson, SC, for advanced individual training (AIT) in military occupational specialty 63B (Wheeled Vehicle Mechanic). On completion, he was sent to Fort Benning, GA, to complete AIT in MOS 63C (Track Vehicle Mechanic). 4. While in AIT at Fort Benning, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on two separate occasions: * 22 May 1969 - being absent without leave (AWOL) from 17 to 20 May 1969 * 6 June 1969 - failing to go at the time prescribed to his appointed place of duty (referred to as failure to repair (FTR)) 5. He served in Vietnam from 10 July 1969 to 23 August 1970; he was assigned to the 670th Transportation Company. Following leave, he returned to Vietnam and was reassigned to the 442nd Transportation Company from 24 August 1970 to 6 March 1971. He accepted NJP on six occasions while in Vietnam: * 2 March 1970 - failing to obey the lawful order of a superior noncommissioned officer (NCO); punishment included reduction from specialist four (SP4)/E-4 to private first class (PFC)/E-3 * 16 June 1970 - AWOL from 17 May to 10 June 1970 * 8 July 1970 - FTR on 27 June, 1 July, 5 July, and 6 July 1970; punishment included reduction from PFC to private (PV2)/E-2; suspended, but later vacated on 23 July 1970 * 28 September 1970 - absent from unit work formation * 30 October 1970 - leaving his guard post with the intent to abandon it; punishment included reduction in rank from PV2 to private (PVT)/E-1 * 17 November 1970 - being absent from his place of duty 6. On 29 September 1970, his commander initiated a request to bar him from reenlistment. This request was approved on 27 November 1970. 7. His available record includes two DA Forms 20, one with the applicant's signature, last audited in September 1970, and the other shown as being a temporary reconstructed record, not signed by the applicant, but reflecting a date in September 1971. a. The DA Form 20 dated in 1970 shows he was promoted to SP4 on 12 September 1969, and then reduced to PVT on 30 October 1970 (the same date cited on an NJP above). There is no indication he was promoted to SP4 more than once. b. The temporary record contains an entry showing he was reduced to PVT effective 5 October 1971. It also indicates he was reassigned from Vietnam to Fort Benning. The reporting date is stated as being on or about 10 April 1971. Additional entries show he was AWOL from on or about 10 April to 9 May 1971 and from on or about 24 May to 9 September 1971. On his return to military control, he was reassigned to the U.S. Army Personnel Control Facility at Fort Lewis, WA. 8. The applicant’s discharge packet is not available for review. However, a DD Form 214 shows he was discharged at Fort Lewis on 5 October 1971 under other than honorable conditions. The DD Form 214 also reflects: * he completed 2 years, 5 months, and 6 days of net active creditable service with 165 days of lost time * his rank was PVT, and his date of rank as 5 October 1971 * the reason and authority for discharge was chapter 10, AR 635-200, separation program number (SPN) 246 (discharge for the good of the service) * he was separated on temporary records; his DD Form 214 reflects there was no information available as to authorized awards or decorations 9. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 10. On 13 May 2016, the Case Management Division (CMD), ARBA requested the applicant submit medical documentation to support his claim of PTSD. * in response, the applicant provided 87 pages of medical documents from his civilian healthcare providers * these records essentially affirmed he had been diagnosed with PTSD as a result of his service in Vietnam, as well as depression and anxiety disorder, not otherwise specified 11. On 11 October 2016, the ARBA psychiatrist provided an advisory opinion. a. The applicant entered active duty on 15 November 1968 with MOS 63C20 (Track Vehicle Mechanic). While on active duty, he served two consecutive tours of duty in the Republic of Vietnam. He was discharged on 5 October 1971 with an under other than honorable conditions discharge in accordance with chapter 10 of AR 635-200. The reason for his separation was he had had several periods of AWOL, totaling 165 days lost; his SPN was 246. He previously applied to the Board for an upgrade of his character of service; the Board denied his request on 22 March 2005. He is now petitioning to have his earlier request reconsidered, contending he had undiagnosed PTSD while on active duty. b. The ARBA psychiatrist was asked to review this case. The following documents were evaluated: the applicant's ABCMR application, copies of medical records from the applicant's civilian healthcare providers, a copy of the applicant's previously denied ABCMR application, his military personnel records, and his medical records. No military electronic medical records were reviewed because this system did not exist when the applicant was on active duty. c. There is no documentation of PTSD or other behavioral health symptoms or diagnoses in his military records. A review of his civilian health records indicates he was diagnosed with PTSD secondary to his experiences in Vietnam. He also has been diagnosed with depression and anxiety disorder, NOS. Treatment has included multiple medications over the past 20 years with mixed results. His PTSD remains active, and he regularly experiences the following symptoms: irritability, anger dyscontrol, nightmares, severe anxiety, and chronically poor sleep. d. There is no evidence of a completed mental status evaluation in his military record. Additionally, there is no indication in the available record that he: * failed medical retention standards as outlined in AR 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention, Promotion, and Separation including Retirement) * fell under the provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) e. The lack of documentation of PTSD symptoms does not necessarily show the applicant did not have PTSD while on active duty. PTSD was not a recognized diagnosis in the applicant's era of service. The civilian healthcare documentation submitted by the applicant reflects he has been diagnosed with PTSD based on his experiences in Vietnam. That documentation also indicates that his symptoms continue to this day. f. In conclusion, it is the medical opinion of the ARBA psychiatrist the applicant suffered from undiagnosed PTSD while he was on active duty. It is likely there is a nexus between his PTSD and the offenses that led to his adverse discharge, because PTSD can be associated with avoidant behaviors (being AWOL). The applicant's PTSD is considered mitigating for the offenses that led to his under other than honorable conditions discharge. 12. On 12 October 2016, CMD provided the applicant a copy of the advisory opinion for review and comment. On 25 October 2016, the applicant concurred with the advisory. REFERENCES: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-14 of the regulation in effect at the time stated, when a member was to be discharged under other than honorable conditions, the convening authority would direct an immediate reduction to the lowest enlisted grade. b. Paragraph 3-7a states 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. Paragraph 3-7b states 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. d. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred. A discharge under other than honorable conditions is normally considered appropriate. 2. The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ. A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days. 3. PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster. a. 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. b. 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." 4. 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 he or she has been exposed to an event that is considered traumatic. a. Clinical experience with the PTSD diagnosis has shown 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. b. 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. 5. The Fifth Revision of the DSM was released in May 2013. This updated edition 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 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. 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) * Irritable or aggressive behavior * Self-destructive or reckless behavior * Hypervigilance * Exaggerated startle response * Problems in concentration * 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 6. The Department of Defense (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. a. This acknowledgement is the result of the extensive research conducted by the medical community, along with the relatively recent issuance of revised criteria regarding the causes, diagnosis, and treatment of PTSD. b. It is also recognized that, in some cases, this undiagnosed condition of PTSD may have been a mitigating factor in the misconduct that served as a catalyst for the Soldier's discharge. c. Of note, research has demonstrated 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 extended periods. 7. In view of the foregoing, on 3 September 2014, the Secretary of Defense gave written guidance to Service Discharge Review Boards (DRBs) and Service BCM/NRs. The memorandum directed them to consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on requests for upgrades in the character of service for former service members who had a valid diagnosis of PTSD. 8. BCM/NRs are not courts, nor are they investigative agencies. Therefore, the determinations are 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? 9. Although 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. a. 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. b. 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 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. c. PTSD is not a likely a 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. 10. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant’s record contains a DD Form 214 that shows, on 5 October 1971, he was discharged under the provisions of chapter 10 of AR 635-200, in lieu of a court-martial. The evidence suggests he had been facing court-martial charges for being AWOL. 2. The issuance of a discharge under this provision of AR 635-200 required the applicant to have voluntarily, willingly, and in writing requested discharge from the Army instead of having his charges adjudicated in court. Barring evidence to the contrary, it is presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. It is further presumed the applicant’s discharge accurately reflects his overall record of service. 3. The applicant asserts he was eligible for an upgrade of his under other than honorable conditions discharge solely due to having kept out of trouble for 6 months. Former Soldiers must apply for discharge upgrades, and the Board decides each case individually on its own merits. The Army has never had a policy whereby an applicant's character of service may be upgraded based on the absence of post-separation misconduct. 4. With regard to his claim of having undiagnosed PTSD at the time of his discharge, PTSD was largely unrecognized by the medical community and DOD during his era of service. Both now have a more thorough understanding of PTSD, as well as its potential to be a causative factor in a Soldier's misconduct. This is particularly true when the condition goes undiagnosed, and there has not been timely treatment. Soldiers who suffer from PTSD warrant careful consideration for the possible recharacterization of their overall service when they were separated solely for misconduct that was subsequent to a traumatic event. 5. The applicant provides evidence that he has been suffering from PTSD. He contends the PTSD is a result of his combat experiences. His AWOL offenses are consistent with the avoidance characteristic of PTSD. Based on a review of his records and the documentation submitted by the applicant, the ARBA psychiatrist concluded there was a nexus between his PTSD and his periods of AWOL. Further, the psychiatrist found his PTSD was considered mitigating for those offenses that led to his under other than honorable conditions discharge. 6. 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. 7. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013532 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013532 13 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2