BOARD DATE: 14 February 2017 DOCKET NUMBER: AR20150014565 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 BOARD DATE: 14 February 2017 DOCKET NUMBER: AR20150014565 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by issuing the applicant a new DD Form 214 for the period ending 2 November 1972 showing his service was characterized 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. BOARD DATE: 14 February 2017 DOCKET NUMBER: AR20150014565 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 a general discharge. 2. The applicant states he served two tours in Vietnam. After he returned from Vietnam the second time, his mental state was such that he had difficulty dealing with the daily routine. He went absent without leave (AWOL) several times and was being processed for discharge. He was advised that he was eligible for a "chapter 10" discharge (administrative discharge for the good of the service in lieu of trial by court-martial). When he reported for the discharge proceedings, he was advised that he had a choice of a court-martial or a discharge. He served honorably in Vietnam twice and had been promoted to specialist five (SP5) prior to the mental health related problems that led to his discharge. He would like to be able to take advantage of Department of Veterans Affairs health benefits. He states he is an "Agent Orange veteran." 3. The applicant provides no additional evidence. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant completed an honorable period of service in the Regular Army from 23 December 1968 to 17 June 1970 and he reenlisted on 18 June 1970. 3. He completed two tours of duty in Vietnam from 24 June 1969 to 23 June 1970 and from 31 July 1970 to 2 August 1971, serving as a wheeled vehicle mechanic assigned to the 615th Military Police Company and the 19th Engineer Battalion. The highest rank/pay grade he held was specialist four (SP4)/E-4. After returning from Vietnam the applicant was assigned to Fort Bragg, NC, on 8 September 1971. 4. Between 27 August 1970 and 11 July 1971, the applicant accepted non-judicial punishment (NJP) on three separate occasions for being apprehended in or being in an off-limits area in Vietnam. 5. On 20 January 1972, the applicant was convicted by a summary court-martial of being AWOL from 3 December 1971 to 10 January 1972. He was sentenced to confinement at hard labor for 30 days, forfeiture of $150 pay, and reduction in rank to private/E-1. On 20 January 1972, the applicant's sentence was approved and was ordered to be executed, but the execution of that portion of his sentence that provided for confinement at hard labor was suspended. 6. He departed AWOL again on or about 28 February and remained absent until 6 July 1972. Charges were subsequently preferred against the applicant for this offense and the additional offense of pawning a toolbox valued at $65, U.S. Army military property. 7. On 18 August 1972, the applicant voluntarily requested to be discharged under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in lieu of trial by court-martial. a. He acknowledged that he had been afforded an opportunity to consult with appointed counsel who fully advised him of his rights. b. He acknowledged he had not been subjected to coercion and understood that if his request for discharge was accepted, he could be discharged UOTHC and furnished an Undesirable Discharge Certificate. c. He acknowledged he understood that as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he may be deprived of his rights and benefits as a veteran under both Federal and State laws. d. Additionally, he acknowledged he understood he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge. 8. He underwent a mental status evaluation on 23 August 1972 which found no significant mental illness and that he met the retention standards prescribed in chapter 3, Army Regulation 40-501 (Standards of Medical Fitness). 9. The applicant’s chain of command recommended approval. His acting commander stated the applicant blamed the U.S. Army for all his personal problems relating to his Vietnamese wife and child not coming to this country. 10. On 5 October 1972, the separation authority approved the applicant's request for discharge and directed that he be issued an Undesirable Discharge Certificate. On 2 November 1972, the applicant was discharged accordingly. His DD Form 214, as issued at the time, indicates his characterization of service was UOTHC. 11. On 26 September 1977, the Army Discharge Review Board denied his request to upgrade his discharge. 12. On 1 February 2017, the Army Review Boards Agency (ARBA) Medical Advisor/Psychologist provided an advisory opinion in this case. He stated: a. The applicant’s record shows stressors relating to supporting his Vietnamese wife and her children from a prior marriage. As a result, he pawned his tools and went AWOL on multiple occasions to see her. This misconduct led to court-martial charges against him. Ultimately, he requested a discharge in lieu of court-martial. b. His medical records do not, at the time of his discharge, reasonably support him having had a boardable medical condition for that period. During his first tour to Vietnam, the applicant married a Vietnamese national with children from a prior marriage. His troubles began when his command refused to return him to Vietnam for a third tour. His trouble began after his wife came to the United States. She wrote a letter to his command on 11 September 1971 explaining that she was disabled, unable to work, that they had children, and that their finances were dire. They had to live on the applicant’s pay of around $100.00 per month. c. His records included an exit mental evaluation showing he met mental health standards in accordance with Army Regulation 40-501 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). d. There is no mitigation for reasons of psychiatric condition for the applicant’s misconduct. Nevertheless, it was his expert opinion that the applicant was under immense pressure from his wife to provide financial support to the family and faced circumstances that made conformance to Army standards especially difficult for him. Further, his GT score of 83 might also have contributed to his failure to identify optimal solutions for his difficulty. He was under a high level of stress. His command appears to have treated him with ruthless severity and to have had minimal, if any, interest, based on available records on his psychiatric well-being. He was treated harshly and with an apparently serene indifference to the very difficult circumstances he faced. e. A review of the available documentation did discover evidence of mental health considerations that are sufficient to change the character of the discharge in this case, even though they did not involve a behavioral health diagnosis. Further, a nexus between some of the applicant’s misconduct and stresses on his mental health was discovered. 13. A copy of this advisory opinion was provided to the applicant for comment and/or rebuttal. He did not respond. REFERENCES: 1. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 – a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good the service in lieu of a trial. The regulation required that there have been no element of coercion involved in the submission of such a request and that the Soldier was provided an opportunity to consult with counsel. The Soldier was required to sign the request indicating he understood he could receive a discharge UOTHC, the adverse nature of such a discharge, and the possible consequences thereof. The regulation required that the request be forwarded through channels to the general court-martial convening authority. An undesirable discharge would normally be furnished to an individual who was discharged for the good of the service. b. 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. 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. 2. The Diagnostic and Statistical Manual of Mental Disorders (DSM), chapter 7, addresses trauma and stress or related disorders. The DSM is published by the American Psychiatric Association (APA) and provides standard criteria and common language for classification of mental disorders. In 1980, the APA added 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." 3. PTSD is unique among psychiatric diagnoses because of the great importance placed upon the etiological agent, the traumatic stressor. In fact, one cannot make a PTSD diagnosis unless the patient has actually met the "stressor criterion," which means that he or she has been exposed to an event that is considered traumatic. Clinical experience with the PTSD diagnosis has shown, however, that there are individual differences regarding the capacity to cope with catastrophic stress. Therefore, while most people exposed to traumatic events do not develop PTSD, others go on to develop the full-blown syndrome. Such observations have prompted the recognition that trauma, like pain, is not an external phenomenon that can be completely objectified. Like pain, the traumatic experience is filtered through cognitive and emotional processes before it can be appraised as an extreme threat. Because of individual differences in this appraisal process, different people appear to have different trauma thresholds, some more protected from and some more vulnerable to developing clinical symptoms after exposure to extremely stressful situations. 4. The fifth edition of the DSM was released in May 2013. This revision includes changes to the diagnostic criteria for PTSD and acute stress disorder. The PTSD diagnostic criteria were revised to take into account things that have been learned from scientific research and clinical experience. The revised diagnostic criteria for PTSD include a history of exposure to a traumatic event that meets specific stipulations and symptoms from each of four symptom clusters: intrusion, avoidance, negative alterations in cognitions and mood, and alterations in arousal and reactivity. The sixth criterion concerns duration of symptoms, the seventh criterion assesses functioning, and the eighth criterion clarifies symptoms as not attributable to a substance or co-occurring medical condition. a. Criterion A – Stressor: The person was exposed to: death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence, as follows (one required): (1) direct exposure; (2) witnessing, in person; (3) indirectly, by learning that a close relative or close friend was exposed to trauma. If the event involved actual or threatened death, it must have been violent or accidental; or (4) repeated or extreme indirect exposure to aversive details of the event(s), usually in the course of professional duties (e.g., first responders collecting body parts, professionals repeatedly exposed to details of child abuse). This does not include indirect non-professional exposure through electronic media, television, movies, or pictures. b. Criterion B – Intrusion Symptoms: The traumatic event is persistently re-experienced in the following way(s) (one required): (1) recurrent, involuntary, and intrusive memories; (2) traumatic nightmares; (3) dissociative reactions (e.g., flashbacks) which may occur on a continuum from brief episodes to complete loss of consciousness; (4) intense or prolonged distress after exposure to traumatic reminders; or (5) marked physiologic reactivity after exposure to trauma-related stimuli. c. Criterion C – Avoidance: Persistent effortful avoidance of distressing trauma-related stimuli after the event (one required): (1) trauma-related thoughts or feelings or (2) trauma-related external reminders (e.g., people, places, conversations, activities, objects, or situations). d. Criterion D – Negative Alterations in Cognitions and Mood: Negative alterations in cognitions and mood that began or worsened after the traumatic event (two required): (1) inability to recall key features of the traumatic event (usually dissociative amnesia; not due to head injury, alcohol, or drugs); (2) persistent (and often distorted) negative beliefs and expectations about oneself or the world (e.g., "I am bad," "The world is completely dangerous"); (3) persistent distorted blame of self or others for causing the traumatic event or for resulting consequences; (4) persistent negative trauma-related emotions (e.g., fear, horror, anger, guilt, or shame); (5) markedly diminished interest in (pre-traumatic) significant activities, feeling alienated from others (e.g., detachment or estrangement); and (6) constricted affect, persistent inability to experience positive emotions. e. Criterion E – Alterations in Arousal and Reactivity: Trauma-related alterations in arousal and reactivity that began or worsened after the traumatic event (two required): (1) irritable or aggressive behavior; (2) self-destructive or reckless behavior; (3) hypervigilance; (4) exaggerated startle response; (5) problems in concentration; and (6) sleep disturbance. f. Criterion F – Duration: Persistence of symptoms (in Criteria B, C, D, and E) for more than 1 month. g. Criterion G – Functional Significance: Significant symptom-related distress or functional impairment (e.g., social, occupational). h. Criterion H – Exclusion: Disturbance is not due to medication, substance use, or other illness. 5. As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis, and treatment of PTSD, the Department of Defense (DOD) acknowledges that some Soldiers who were administratively discharged UOTHC may have had an undiagnosed condition of PTSD at the time of their discharge. It is also acknowledged that in some cases this undiagnosed condition of PTSD may have been a mitigating factor in the Soldiers' misconduct 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 requests an upgrade of his UOTHC discharge to a general discharge. 2. The evidence shows his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would jeopardized his rights. He was properly discharged in accordance with pertinent regulations with due process. The characterization of service he received was commensurate with the reason for his discharge. 3. He contends he was suffering from mental health issues at the time of his discharge. During his discharge processing he underwent a mental health examination. The examining psychiatrist found no evidence of any significant mental illness or any disqualifying mental or physical defects sufficient to warrant disposition through medical channels. Further, the applicant did not provide any evidence to show he was ever treated for or diagnosed with any mental health condition to date. 4. Having considered the applicant’s military record and available medical records, the ARBA Medical Advisor opined that the applicant met retention standards at the time of discharge; however, his command appeared to dismiss issues related to his mental health. This official found that, despite the lack of a behavioral health diagnosis, there was a nexus between some of the applicant’s misconduct and the stresses on his mental health stemming from his marriage, which were sufficient to change the character of his discharge. The ARBA Medical Advisor did not cite evidence of PTSD or related symptoms as a mitigating factor in the applicant's misconduct. 5. In the 2014 the Secretary of Defense directed the DRBs and BCMRs 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 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014565 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014565 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2