DEPARTMENT OF THE ARMY ARMY REVIEW BOARDS AGENCY 251 18TH STREET SOUTH, SUITE 385 ARLINGTON, VA 22202-3531 SAMA-RB 2 December 2016 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for AR20150014 761 1 . Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 15 November 2016, in which the Board members unanimously recommended denial of the applicant's request 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant partial relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as "General, Under Honorable Conditions." 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 3 April 2017. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: Encl d aa ·t!,. t- -­ Deputy Assistant Secretary of the Army (Review Boards) Printed on$ Recycled Paper IN THE CASE OF: BOARD DATE: 15 November 2016 DOCKET NUMBER: AR20150014761 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __x______ ___x_____ ___x__ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 15 November 2016 DOCKET NUMBER: AR20150014761 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ___________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: 15 November 2016 DOCKET NUMBER: AR20150014761 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 bad conduct discharge to general under honorable conditions. 2. The applicant states: a. He served in the Army from 4 May 1966 to 3 May 1969 and he received an honorable discharge for his service during the period 4 May 1966 to 10 June 1967. He reenlisted on 11 June 1967 with a commitment to 10 June 1970. b. He served a tour of duty in Vietnam from 9 November 1966 to 8 November 1967. He was in combat on the ground as an infantryman and in the air as a door gunner. He was responsible for a lot of death, but it was his job. c. After serving in combat he started abusing alcohol and drugs to try to wash away the horrors and nightmares. His actions led to being absent without leave (AWOL) several times, which resulted in a general court-martial and the discharge under other than honorable conditions. 3. The applicant provides: * undated self-authored letter * newspaper article pertaining to veterans with diagnoses of post-traumatic stress disorder (PTSD), dated 21 September 2014 * Department of Veterans Affairs (VA) Rating Decision, dated 15 June 2004 * VA letter, dated 1 July 2004 * DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending 10 June 1967 and 11 November 1971 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 was inducted into the Army of the United States on 4 May 1966. He served as a light weapons infantryman in Vietnam, but his inclusive dates of service in Vietnam are not available for review. On 10 June 1967 while serving in Vietnam, he was honorably discharged for immediate reenlistment. He reenlisted on 11 June 1967 for a period of 3 years. 3. On 11 July 1967, nonjudicial punishment (NJP) was imposed against him for failing to go to his prescribed place of duty. 4. On 13 November 1970, he was convicted by a general court-martial of being AWOL from: * 18 December 1967 to 2 July 1968 * 2 to 28 July 1968 * 19 August 1968 to 24 June 1969 * 27 June 1969 to 1 July 1970 5. He was sentenced to confinement at hard labor for 1 year, forfeiture of two-thirds pay per month for 12 months, and a bad conduct discharge. On 23 December 1970, the convening authority approved only so much of the sentence as provided for a bad conduct discharge, confinement at hard labor for 12 months, and forfeiture of $62.00 pay per month for 12 months. 6. On 12 July 1971, NJP was imposed against him for being absent without authority from his assigned place of duty for 9 hours. 7. On 27 October 1971, the U.S. Army Court of Military Review affirmed the court-martial findings of guilty and the sentence. 8. On 4 November 1971, the convening authority ordered the bad conduct discharge duly executed. 9. He was discharged under other than honorable conditions on 11 November 1971 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 11, as a result of court-martial and issued a Bad Conduct Discharge Certificate. He completed a total of 3 years, 8 months, and 24 days of creditable active service with 947 days of lost time. His DD Form 214 for the period ending 11 November 1971 shows he was separated on temporary records. 10. There is no evidence of record showing he was diagnosed with PTSD or any mental health condition prior to his discharge. 11. He provided a VA Rating Decision, dated 15 June 2004, showing he was granted entitlement to individual unemployability effective 28 June 2002 and he was awarded service connection for PTSD with a valuation of 70 percent effective 26 April 2004. 12. He also provided an undated self-authored letter stating: a. In December 2003, he watched a television program about a Soldier who served in Vietnam in 1967 and later deserted his family and country for 25 years. After turning himself in to the Army, the Soldier received a general discharge under honorable conditions. They said this Soldier received a general discharge because he did not run from the war. This was horrifying to him because he did not run from the war, he did his tour of duty in Vietnam, and he was decorated for valor in the air as a door gunner despite the problems he was having. Even though he was going through hell on the inside, all of his efficiency and conduct reports were rated "excellent." When he returned to the United States, he was AWOL for a total of 945 days. He was sentenced to 1 year in confinement (suspended) and given a bad conduct discharge. He was stripped of everything. b. The hurt he is feeling is tearing him apart inside. He believes an example was made of him. He has had to live with the headaches, terrible dreams, nightmares, and cold sweats. The only way he could get any sleep was through the use of drugs and alcohol. It was hard for him to deal with the hardships he had to face, knowing he would have to lie about his affiliation with the military on employment applications. c. If it were not for that war and all it did to him, he is sure his decisions in life would have been different. He would have taken different paths. The path he was forced to take has caused him intensive pain, hurt, and anger. His state of mind would have been different and the decisions he had to make would also have been different. d. Now he needs help and can't get it. He was 18 years old and in a war he knew nothing about except that people were getting killed. He didn't want to go, but it was mandatory. After being in Vietnam for a while and serving in combat with the ground forces, he thought the only way out of the horror was to try and better his chances of survival, so he reenlisted and became a door gunner. Although he survived, he was wrong. He was assigned to an assault helicopter company and things just escalated. 13. An advisory opinion was rendered by the Chief, Behavioral Health Division, Health Care Delivery, Office of the Surgeon General, dated 14 September 2016, wherein he stated: a. The applicant reported he was responsible for a lot of death as a door gunner, but it was the job. He described years of headaches, terrible dreams and nightmares, and cold sweats, adding that the only way he could get to sleep was with the use of alcohol and drugs. A VA Rating Decision, dated 26 April 2004, awarded him service connection for PTSD with a 70-percent disability rating and he was granted entitlement to individual unemployability in June 2004. b. His poor judgement in being AWOL, his efforts to self-medicate with alcohol and drugs, and his subsequent VA diagnosis and disability rating are strong indicators that he was experiencing PTSD symptoms at the time of his separation and that these symptoms mitigated the conduct that led to his discharge under other than honorable conditions. 14. 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 sets forth the basic authority for separation of enlisted personnel. a. 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. b. Chapter 11, in effect at the time, stated a Soldier would be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence ordered duly executed. 2. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 3. Title 10, U.S. Code, section 1552, provides that the Secretary of a Military Department may correct any military record of the Secretary's Department when the Secretary considers it necessary to correct an error or remove an injustice. With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under the Uniform Code of Military Justice, action to correct any military record of the Secretary's Department may extend only to correction of a record to reflect actions taken by reviewing authorities under the Uniform Code of Military Justice or action on the sentence of a court-martial for purposes of clemency. Such corrections shall be made by the Secretary acting through boards of civilians of the executive part of that Military Department. 4. 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 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." 5. 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. 6. 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. 7. 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 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. 8. 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 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 applicants' service. 9. 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? 10. 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. 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 under other than honorable conditions 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 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. 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 evidence of record shows the applicant was issued a bad conduct discharge on 11 November 1971 as a result of the sentence of a general court-martial for being AWOL for 888 days. 2. His record of service during his last enlistment included two NJPs, one general court-martial conviction, and 947 days of lost time. 3. The VA found he was entitled to a 70-percent service-connected disability rating for PTSD in 2004. 4. The Office of the Surgeon General advisory official concluded the applicant's poor judgement in being AWOL, his efforts to self-medicate with alcohol and drugs, and his subsequent VA diagnosis and disability rating are strong indicators that he was experiencing PTSD symptoms at the time of his separation and that these symptoms mitigated the conduct that led to his discharge under other than honorable conditions. 5. While his undiagnosed PTSD may be considered a mitigating factor for his periods of AWOL, the state of his mental health could have been raised during his court-martial and adjudication process. 6. While his trial by court-martial for multiple specifications of being AWOL was warranted and his conviction and discharge were effected in accordance with applicable law and regulations, there is no evidence that the state of his mental health was presented to the court-martial for consideration as a mitigating circumstance. 7. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. Any redress by this Board of the finality of a court-martial conviction is prohibited by law. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014761 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014761 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2