BOARD DATE: 2 February 2017 DOCKET NUMBER: AR20150015161 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: 2 February 2017 DOCKET NUMBER: AR20150015161 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a partial amendment of the ABCMR's decision in Docket Number AC93-11457A, dated 8 July 1998. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by issuing him a new DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows his service characterization as under honorable conditions (general). 2. The Board further determined that 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 the characterization of his service 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: 2 February 2017 DOCKET NUMBER: AR20150015161 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 the previous Army Board for Correction of Military Records (ABCMR) decision set forth in Docket Number AC93-11457A on 8 July 1998. Specifically, he requests his under other than honorable conditions discharge be upgraded to an honorable discharge. 2. The applicant states, in effect: a. His discharge completely barred him from receiving Department of Veterans Affairs (VA) benefits for life. He has post-traumatic stress disorder (PTSD) and has been suffering since he returned from Vietnam. He was told that if he reenlisted, he would stay stateside. However, he was later told that he was going back to Vietnam immediately after reenlisting. It was too much to handle, so he went absent without leave (AWOL). b. Many Veterans were discharged with [under] other than honorable [conditions discharges] and still receive VA benefits. Soldiers discharged today would not have been treated the same way he was. He has been in and out of mental hospitals multiple times since his service in Vietnam. 3. The applicant provides: * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 16 July 1970 * an excerpt from his Enlisted Qualification Record * DA Forms 188 (Extract Copy of Morning Report), dated 22 November 1971 and 8 December 1971 * Standard Form 88 (Report of Medical Examination), dated 8 December 1971 * Personal History of Accused, dated 9 December 1971 * Letter of Transmittal of Court-Martial Charges, dated 10 December 1971 * Request for Discharge for the Good of the Service, undated * DD Form 214 for the period ending 20 December 1971 * 52 pages of Veterans Integrated System Technology Architecture (VistA) Electronic Medical Documentation from the VA Medical Center, Cincinnati, Ohio, printed 9 March 2012 * documents labeled "PTSD Treatment 1974 to present" * Memorandum from the VA Medical Center, Evansville, Indiana, dated 13 July 2012 * a letter from the Chicago VA Regional Office, Chicago, Illinois, dated 24 September 2013 * an internet printout entitled "Hagel Issues Guidance for Veterans' Discharge Upgrade Requests," printed on 25 August 2015 * a letter from the State of Illinois VA, Veterans Service Officer (VSO), Lawrenceville, Illinois, dated 25 August 2015 CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AC93-11457A on 8 July 1998. 2. The applicant provides VISTA Electronic Medical Documentation and a letter from a Veterans Service Officer, which were not considered by the Board in its original consideration of his request. This newly submitted documentation and statements constitute new evidence that warrants consideration by this Board. 3. The applicant enlisted in the Regular Army on 14 November 1969. He completed his initial entry training and was awarded military occupational specialty (MOS) 94B (Cook). The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3. 4. The applicant was discharged for the purpose of immediate reenlistment on 16 July 1970. At that time, he had completed 8 months and 3 days of active service that was characterized as honorable. 5. The applicant reenlisted in the Regular Army on 17 July 1970 for a period of 3 years, and he served in the Republic of Vietnam from on or about 30 August 1970 through on or about 29 August 1971. 6. The applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates and for the following offenses: * 26 August 1970, for absenting himself from his unit from on or about 15 August through 19 August 1970 * 26 December 1970, for failing to go at the time prescribed to his appointed place of duty * 22 January 1971, for behaving in a disrespectful manner toward his superior commissioned officer and wrongfully communicating a threat * 23 February 1971, for operating a vehicle while under the influence and being drunk and disorderly 7. A DA Form 188, dated 22 November 1971, shows he was reported as AWOL from on or about 18 October through on or about 20 November 1971. 8. Court-martial charges were preferred against the applicant on 10 December 1971 based on his prior AWOL offenses. 9. The applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, in lieu of trial by court-martial and for the good of the service. In doing so, he acknowledged he had been afforded the opportunity to speak with counsel prior to making his request. He further acknowledged: * he had not been subjected to coercion with respect to his request for discharge * he had been advised of the implications that were attached to it * he could be discharged under other than honorable conditions and he could be ineligible for many or all benefits administered by the VA * he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits as a veteran under both Federal and State laws * he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge 10. He elected to submit a statement in his own behalf, wherein he acknowledged that he had been in the Army over two years and could no longer take it. He stated he would continue to go AWOL if he could not get out. 11. The applicant underwent an examination in conjunction with his request for discharge in lieu of trial by court-martial. His record contains a Standard Form 88 (Report of Medical Examination), dated 2 September 1971, which shows he was found qualified for separation; there were no grounds to believe he was, or had been, mentally defective, deranged or abnormal; and a psychiatric examination was not deemed to be appropriate. Error! Hyperlink reference not valid. 12. The appropriate separation authority approved the applicant's voluntary request for discharge on 16 December 1971 and directed that he be issued an Undesirable Discharge Certificate. 13. The applicant was discharged accordingly on 20 December 1971. The DD Form 214 he was issued shows he served 1 year, 3 months, and 26 days of total active service, he accrued 38 days of lost time, and his service was characterized as under conditions other than honorable. 14. The applicant's available record is void of documentation that shows he was diagnosed with, or treated for, PTSD during his period of military service. 15. The applicant provides: a. VISTA Electronic Medical Documentation that references his history of PTSD and problems with insomnia, nightmares, poor concentration, irritability and dissociated episodes. b. Treatment records that document his PTSD diagnosis, depression and alcohol abuse. c. A letter from the State of Illinois VA, VSO, dated 25 August 2015, wherein the VSO representative states, in effect, the applicant's character of service bars him from receiving VA benefits. 16. In connection with the processing of this case, an advisory opinion was obtained from the Army Review Board Agency's (ARBA) psychiatrist. The medical advisory opinion states: a. The applicant entered active duty on 14 November 1969 in MOS 94B20 (Cook). He served a tour of duty in the Republic of Vietnam during his second enlistment from 30 August 1970 until 29 August 1971. He was discharged on 20 December 1971 with an under other than honorable conditions discharge in accordance with Army Regulation 635-200, chapter 10, for the good of the service for the following misconduct: being AWOL on two separate occasions (15 August 1970 to 19 August 1970 and 18 October 1971 to 20 November 1971 (38 days lost)) and receiving 3 NJPs (for being disrespectful and threatening toward an officer, being drunken and disorderly and driving a government vehicle while under the influence of alcohol). The applicant is now applying to the ABCMR appealing his discharge, stating he developed PTSD while in Vietnam and this accounts for his misconduct. b. The ARBA psychiatrist was asked to review this case to determine if the applicant had PTSD or any other Behavioral Health condition at the time of his discharge from the military and, if so, to determine if there was a nexus between the applicant's Behavioral Health condition and the misconduct that led to his discharge from the Army. The following documentation was reviewed: the applicant's ABCMR application, his VA medical records and his military personnel record. The military electronic medical record was not reviewed as it was not in use during the applicant's term of service. No military medical records were provided for review. c. Review of the applicant's military personnel records indicates that during his second enlistment, he was disciplined for operating a government vehicle while he was intoxicated. He was also disciplined for being disrespectful and threatening to a superior officer and for disorderly conduct. A Report of Medical Exam, dated 8 December 1971 stated that "There is no reasonable grounds for the belief that this individual is or ever has been mentally defective, deranged or abnormal. A psychiatric exam is not deemed to be appropriate." d. A review of the applicant's VA medical records indicates he has been diagnosed with PTSD by the VA and has been in treatment for this PTSD for many years. His symptoms of PTSD consist of nightmares, insomnia, dissociative reactions (flashbacks), pervasive guilt feelings, avoidance behaviors, emotional numbing, hypervigilance, hyperarousal, irritability, depression and decreased concentration. The record notes that the applicant is "haunted by the face of an 8 year old child he killed while on guard duty." The applicant has been psychiatrically hospitalized on several occasions for his PTSD symptoms. He has also been hospitalized and treated for alcohol dependence. e. The VA medical records indicate that the applicant has been diagnosed with combat related PTSD. There is no evidence of any specific PTSD symptoms in the applicant's military records. This is not surprising, however, given the fact that PTSD was not a recognized diagnosis during the applicant's time in service. There is documentation of some behaviors which can be associated with PTSD: being disrespectful toward superior officers, engaging in disorderly conduct and excessive drinking. A diagnosis of alcohol dependence in conjunction with service in Vietnam is often associated with a diagnosis of PTSD. f. Based on the information available for review at this time, the applicant demonstrated some behaviors while on active duty that are consistent with nascent PTSD (see above). This nascent PTSD appears to have developed into full blown PTSD after the applicant left the military as evidenced by his VA diagnosis of PTSD. PTSD is a mitigating Behavioral Health condition for some of the misconduct which resulted in the applicant's discharge from the Army: for the AWOL dating from 18 October 1971 to 20 November 1971 and for the 3 Article 15s the applicant received during his second enlistment (being disrespectful and threatening towards an officer, being drunken and disorderly and operating a government vehicle under the influence of alcohol). PTSD is commonly associated with avoidant behaviors (being AWOL), self-medication of symptoms with alcohol (drunken and disorderly behavior and operating a vehicle under the influence of alcohol) and difficulty with authority figures (being disrespectful toward one's superiors). The PTSD diagnosis does not mitigate the applicant's first period of AWOL from 15 August 1970 to 19 August 1970 as this occurred before the applicant deployed to Vietnam and predates the applicant's development of PTSD. 17. The advisory opinion was provided to the applicant on 21 October 2016, to afford him the opportunity to respond to its content. He did not respond. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states an honorable discharge is given when the quality of the Soldier's service has generally met standards of acceptable conduct and duty performance. 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. Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the Service. An under conditions other than honorable characterization of service required reduction to the lowest enlisted grade. 2. 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." 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 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. 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 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. 6. 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 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 (emphasis added). 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 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 (emphasis added). 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. DISCUSSION: 1. The applicant's request for an upgrade of his discharge from under other than honorable conditions to honorable was carefully considered. 2. The available evidence shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with legal counsel, he voluntarily requested discharge from the Army in order to avoid trial by court-martial. 3. His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial, was administratively correct and in conformance with applicable laws and regulations. There is no indication the request was made under coercion or duress. 4. After the applicant's discharge, he was diagnosed by the VA with combat-related PTSD and has been in treatment for many years. The applicant appears to have demonstrated some behaviors while on active duty that are consistent with nascent PTSD, which appears to have developed into full-blown PTSD after he left the military. The ARBA psychiatrist opined that his PTSD diagnosis does not mitigate his first period of AWOL as that occurred prior to his service in Vietnam. 5. The Department of Defense now has a 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. Consequently, Soldiers who suffered from PTSD, who were separated solely for misconduct subsequent to a traumatic event, warrant careful consideration for the possible re-characterization of their overall service. 6. The available documentation reasonably supports the existence of PTSD or PTSD-related conditions at the time of his second AWOL offense and misconduct. 7. An honorable discharge is given when the quality of the Soldier's service has generally met standards of acceptable conduct and duty performance. 8. 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) AR20150015161 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015161 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2