BOARD DATE: 17 January 2017 DOCKET NUMBER: AR20150014494 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 BOARD DATE: 17 January 2017 DOCKET NUMBER: AR20150014494 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AC88-09281B, dated 24 June 1998. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by re-issuing the applicant's DD Form 214 for the period ending 26 June 1972 to show: * the characterization of service as general, under honorable conditions * his rank/grade as specialist four (SP4/E-4) with an effective date of 18 January 1969 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 discharge to 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. BOARD DATE: 17 January 2017 DOCKET NUMBER: AR20150014494 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 previous request to have his under other than honorable conditions (UOTHC) discharge upgraded. 2. The applicant states that after returning from Vietnam his mental state effected his actions. While assigned to Fort Gordon, GA, he began to have nightmares about being in Vietnam which he contributes to being repeatedly asked by his fellow Soldiers what they should expect to encounter. He started drinking and he was convicted of driving under the influence. While at work camp, he received paperwork from the Army telling him he would be automatically discharged due to his conviction, which is signed and sent back to his unit. Approximately a year and a half later he was arrested while shopping with his family and sent to the stockade at Fort Gordon, GA. He told the officer that he had already been discharged and his wife brought his discharge papers but he was told that he needed to sign another discharge or be court-martialed because he had not “served long enough.” He signed the discharge. 3. The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), medical documents, and several character references. 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 AC88-09281B on 24 June 1988. The Board concluded that there was insufficient evidence to show the applicant was suffering from a mental or emotional defect so severe that he could not tell right from wrong and adhere to right. 2. The applicant enlisted in the Regular Army on 26 March 1968 and served as a truck driver. His DA Form 20 (Enlisted Qualification Record) shows: * the highest grade he held was specialist four (SP4)/E-4 * his service in Panama from 24 August 1968 to 9 April 1969 * his service in Vietnam from 22 May 1969 to 1 April 1970 3. His record of misconduct includes several periods of lost time: * 4 August to 2 September 1970, AWOL (DA Form 20) * 8 November 1970 to 19 April 1972, AWOL (DA Form 20) * 20 April to 4 May 1972, confinement 4. A DA Form 458 (Charge Sheet) filed in his record, dated on 27 November 1970, but void of signatures, shows the applicant was pending court-martial charges for being absent without leave (AWOL) from the: a. 575th Engineer Battalion (Construction), Fort Stewart, GA, from on or about 4 August 1970 to on or about 6 November 1970; and b. the U.S. Army Special Processing Detachment, Fort McPherson, GA, from on or about 8 November 1970 to on or about 1 February 1971 (this period of AWOL ends after the date shown on the charge sheet). 5. A Federal Bureau of Investigation (FBI) record, dated 30 August 1971, shows the applicant was arrested for auto theft on 12 August 1971. 6. On 17 September 1971, his commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation 635-206 (Personnel Separations–Discharge–Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion)) due to conviction by civil court with an undesirable discharge. 7. On 22 September 1971, he acknowledged notification of his commander's intent by signing a statement indicating that he did not intend to appeal his civil conviction. 8. Special Orders Number 260, issued by Headquarters, U.S. Army School/Training Center and Fort Gordon, Fort Gordon, GA, show the applicant was dropped from the rolls of the U.S. Army Personnel Control Facility at Fort McPherson, GA and confined by civil authorities at the Cherokee County Work Camp, Canton, GA, effective 17 September 1971. 9. On 8 October 1971, the applicant's commander recommended that he be separated under the provisions of Army Regulation 635-206 due to civil conviction for driving under the influence resulting in a 12-month sentence. 10. Item 38 (Record of Assignments) of his DA Form 20 shows he was released from confinement on 24 April 1972 and assigned as the duty foreman for the U.S. Army Personnel Control Facility, Fort Gordon, GA. 11. His complete discharge packet is not available; however, on 2 May 1972, after consulting with counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. The reason for discharge was entered as “allegedly AWOL from on or about 8 Nov 70 to on or about 20 Apr 72.” The applicant indicated he had not been subjected to coercion whatsoever by any person and he made the request of his own free will. He elected to submit a statement in his own behalf. 12. In his request for discharge the applicant acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Administration (VA) and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. He also indicated he understood he could face substantial prejudice in civilian life if he were issued an under other than honorable conditions discharge. 13. He submitted a statement in support of his request for discharge, wherein he indicated that he needed a discharge in order to provide financial support for his family. 14. On 5 June 1972, the separation authority approved his request for discharge and directed the issuance of an undesirable discharge and reduction to the lowest enlisted grade. 15. On 26 June 1972, he was discharged accordingly in the rank/pay grade of private(PVT/E-1) with a date of rank of 5 June 1972. He completed 2 years, 7 months, and 24 days of net active service with 168 days of lost time prior to normal expiration term of service (ETS) and 414 day lost subsequent to normal ETS. 16. On 13 April 1984, a senior clinical psychologist at the Northwest Georgia Regional Hospital submitted a letter to the Cherokee Judicial Circuit court on behalf of the applicant. She stated that the applicant completed a 28-Day Intensive Treatment Program for alcohol and/or drug abuse. During group therapy sessions, she became aware of an underlying problem, which she believed to have significantly contributed to his problems. She saw him in individual psychotherapy and based on her experience working with Vietnam veterans; determined he suffered from post-traumatic stress disorder, which would account for many of his legal problems, especially those associated with substance abuse and violent behavior. 17. In connection with the processing of this case, an Army Review Boards Agency Medical Advisor reviewed the applicant’s medical and personnel records. On 13 December 2016, this official determined: a. The applicant met medical retention standards in accordance with Chapter 3, Army Regulation 40-501 (Standards of Medical Fitness), and following the provisions set forth in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). b. The applicant’s medical conditions were duly considered during separation processing. c. There was evidence of a mental health condition or conditions that warrant a change to the character of the discharge in this case based on a discovery of a possible nexus between his misconduct and his mental health condition. 18. On 13 December 2016, the advisory opinion was forwarded to the applicant for acknowledgement/rebuttal. No response was received. REFERENCES: 1. Army Regulation 635-40 establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. The mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, an under other than honorable conditions (UOTHC) discharge is normally considered appropriate. At the time, an undesirable discharge was normally given. b. 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. c. 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. 3. 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." 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 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. 5. 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. a. Criterion A, stressor: The person was exposed to: death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence, as follows: (one required) (1) Direct exposure. (2) Witnessing, in person. (3) Indirectly, by learning that a close relative or close friend was exposed to trauma. If the event involved actual or threatened death, it must have been violent or accidental. (4) Repeated or extreme indirect exposure to aversive details of the event(s), usually in the course of professional duties (e.g., first responders, collecting body parts; professionals repeatedly exposed to details of child abuse). This does not include indirect non-professional exposure through electronic media, television, movies, or pictures. b. Criterion B, intrusion symptoms: The traumatic event is persistently re-experienced in the following way(s): (one required). (1) Recurrent, involuntary, and intrusive memories. (2) Traumatic nightmares. (3) Dissociative reactions (e.g., flashbacks) which may occur on a continuum from brief episodes to complete loss of consciousness. (4) Intense or prolonged distress after exposure to traumatic reminders. (5) Marked physiologic reactivity after exposure to trauma-related stimuli. c. Criterion C, avoidance: Persistent effortful avoidance of distressing trauma-related stimuli after the event: (one required) (1) Trauma-related thoughts or feelings. (2) Trauma-related external reminders (e.g., people, places, conversations, activities, objects, or situations). d. Criterion D, negative alterations in cognitions and mood: Negative alterations in cognitions and mood that began or worsened after the traumatic event: (two required) (1) Inability to recall key features of the traumatic event (usually dissociative amnesia; not due to head injury, alcohol, or drugs). (2) Persistent (and often distorted) negative beliefs and expectations about oneself or the world (e.g., "I am bad," "The world is completely dangerous"). (3) Persistent distorted blame of self or others for causing the traumatic event or for resulting consequences. (4) Persistent negative trauma-related emotions (e.g., fear, horror, anger, guilt, or shame). (5) Markedly diminished interest in (pre-traumatic) significant activities. Feeling alienated from others (e.g., detachment or estrangement). (6) Constricted affect: persistent inability to experience positive emotions. e. Criterion E, alterations in arousal and reactivity: Trauma-related alterations in arousal and reactivity that began or worsened after the traumatic event: (two required) (1) Irritable or aggressive behavior. (2) Self-destructive or reckless behavior. (3) Hypervigilance. (4) Exaggerated startle response. (5) Problems in concentration. (6) Sleep disturbance. f. Criterion F, duration: Persistence of symptoms (in Criteria B, C, D, and E) for more than one month. g. Criterion G, functional significance: Significant symptom-related distress or functional impairment (e.g., social, occupational). h. Criterion H, exclusion: Disturbance is not due to medication, substance use, or other illness. 6. 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 under other than honorable conditions may have had an undiagnosed condition of PTSD at the time of their discharge. It is also acknowledged that in some cases this undiagnosed condition of PTSD may have been a mitigating factor in the Soldier's misconduct 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. 7. In view of the foregoing, on 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions (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. 8. 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: * Reasonability to determine whether PTSD or PTSD-related conditions existed at the time of discharge * Availability in the applicant's record of documentation of the occurrence of a traumatic event during the period of service * Availability in the applicant's military record of documentation of a diagnosis of PTSD or PTSD-related symptoms * What documentation the applicant provided showing a diagnosis of PTSD or PTSD-related symptoms rendered by a competent mental health professional representing a civilian healthcare provider * When the applicant's condition was determined to have existed * Determination of the applicant's condition as having been incurred during or aggravated by military service * Mitigating factors that exist in the applicant's case * The applicant’s history of misconduct prior to the occurrence of any traumatic event * Premeditation of the applicant's misconduct * Seriousness of the applicant’s misconduct 9. Although the DOD acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had an undiagnosed condition of PTSD at the time of their discharge, it is presumed that they were properly discharged based upon the evidence that was available at the time. Conditions documented in the record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which PTSD or PTSD-related conditions may be reasonably determined to have existed at the time of discharge; those conditions will be considered potential mitigating factors in the misconduct that caused the 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. 10. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) paragraph 2-9 provides that the Board 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. DISCUSSION: 1. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. The record shows the applicant was charged with offenses for which he could have been tried by court-martial and sentenced to a punitive discharge under the UCMJ. 2. His discharge proceedings were conducted in accordance with law and regulations. The characterization of the applicant's discharge was commensurate with the reason for discharge and overall record of military service in accordance with the governing regulations in effect at the time. 3. 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. 4. Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible re-characterization of their overall service. 5. A review of his record shows that he was subjected to the ordeals of war while serving in the RVN. Subsequent to these experiences, he participated in an intensive 28-day substance abuse program and was diagnosed by a psychologist as suffering from PTSD. An Army Review Boards Agency medical advisor found there is evidence of a mental health condition that warrants a change to the character of the discharge in this case based on a possible nexus between his misconduct and his mental health condition. 6. 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. 7. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014494 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014494 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2