SAMA-RB 23 January 2017 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, AR20150017302 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 5 January 2017, 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 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 23 May 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 BOARD DATE: 5 January 2017 DOCKET NUMBER: AR20150017302 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 BOARD DATE: 5 January 2017 DOCKET NUMBER: AR20150017302 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. BOARD DATE: 5 January 2017 DOCKET NUMBER: AR20150017302 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 upgrade of his 18 August 1972 bad conduct discharge (BCD) to a general under honorable conditions discharge (GD). 2. The applicant states, in effect, that he is providing additional medical evidence to support his request. He does not write or speak well because of the way he hears. He only completed 8th grade and did not take the general education diploma (GED) program in the Army, but he did well in the Army, advancing to E-6 at age 21. 3. The applicant provides: * Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 24 January 2014 * 6 pages of personal statements made in support of his application for VA benefits for post-traumatic stress disorder (PTSD) and outlining his reasons for being absent without leave with three letters of support dated between 1994 and 2007 * 23 pages of medical records from the Roger Saux Counseling Center, dated between 2003 and 2007 * Army Board for Correction of Military Records (ABCMR) decisional document in Docket Number AR20140003283 on 16 October 2014 * resubmission of documents previously of considered * two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) * 28 September 1965 DA Form 2627-1 (Record of Proceedings under Article 15 UCMJ) * Special Court-Martial Order Number 33, dated 28 September 1967 * Special Court-Martial Order Number 956, dated 20 December 1967 Special Court-Martial Order Number 2, dated 20 February 1969 * Special Court-Martial Order Number 69, date 19 April 1969 * Special Court-Martial Order Number 63, dated 3 August 1972 * DA Form 14-159 (Notice of Transfer) listing his periods of absence without leave (AWOL) and confinement * DA Form 20, (Enlisted Qualification Record) CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by ABCMR in Docket Number AR20140003283 on 16 October 2014. 2. The available records do not contain any service medical and dental records for the applicant. If any such records exist, it is possible they are on permanent loan to the Department of Veterans Affairs (VA) and are not available for review by the Board. 3. The applicant enlisted in the Regular Army on 3 August 1962 and was honorably discharged on 3 August 1964 for immediate reenlistment. He served in the military occupational specialty (MOS) 111.60 (Infantryman) (his MOS designation was converted to 11B in 1967). 4. On 28 September 1965, he received nonjudicial punishment under Article 15, Uniform Code of Military Justice, for failing to report for guard duty. 5. The applicant was assigned to duty in Vietnam as a team leader with Company C, 2nd Battalion, 7th Cavalry Regiment, from on or about 19 April 1966 to 9 April 1967. While serving in Vietnam, he was promoted to staff sergeant/E-6 effective 17 March 1967. His awards for his service in Vietnam included the Bronze Star Medal and the Combat Infantryman Badge. 6. The applicant was found guilty by four separate special courts-martial of being AWOL during the following periods: * 18 May 1967 through 3 August 1967 * 29 September 1967 through 25 November 1967 * 2 November 1968 through 13 January 1969 * 12 February 1969 through 16 February 1969 * 9 May 1969 through 10 January 1972 7. The 15 March 1972 special court-martial, which convicted him of being AWOL from 9 May 1969 through 10 January 1972, sentenced the applicant to 4 months of confinement, forfeiture of $150.00 pay per month for 6 months, and to be discharge with a BCD. The court-martial convening authority approved only so much of the sentence pertaining to a BCD, forfeiture of $150.00 pay per month for 4 months, and confinement for 2 months. The case was referred to the U.S. Army Court of Military Review. 8. Headquarters, 9th Infantry Division and Fort Lewis, Special Court-Martial Order Number 63, dated 3 August 1972, states that the applicant's sentence had been affirmed, and with Article 71(c), UCMJ, having been complied with, the BCD was ordered executed. The applicant was discharged on 18 August 1972 in accordance with his sentence with his service characterized as under other than honorable conditions (at the time this characterization of service was used in conjunction with a BCD). 9. The applicant's DD Form 214 for the period ending 18 August 1972 shows a total of 4 years, 3 months, and 11 days of creditable active duty. It indicates he had 1,369 days of lost time and 106 days in excess leave status. 10. On 9 October 2014, the ABCMR denied the applicant's request stating that his service record did not indicate and he had not provided any evidence that showed he had been diagnosed with any mental health condition that may have contributed to his misconduct while he was serving on active duty. 11. The applicant has applied for and been denied VA benefits on several occasions. In his 2014 application, the applicant stated the reason for his repeated periods of AWOL was to locate his family, which he did after 5 years. 12. In self-authored statements, he gives a history of being in the "bush" for 355 straight days in Vietnam. He didn't get any breaks between battles. He has seen hundreds of dead Soldiers, both enemy and U.S. He states the reason for his repeated periods of AWOL was family problems with his wife and child. The Red Cross requested he receive a transfer to a location closer to his family, but this was denied. His wife, due to childhood trauma/abuse, became psychotic, had a nervous breakdown, and left taking his child with her. He did not locate her for over 5 years, and at some point during this time his child was placed in the care of child protective services. 13. In the medical documents provided by the applicant the earliest recorded date of care by the Roger Saux Counseling Center is 26 December 2003. The applicant has added handwritten comments to the reports contradicting some of the statements. The medical documents show: a. A 26 December 2003 intake note states the applicant was seen by in Port Angeles 6-7 years prior for PTSD and manic depression. b. During the intake examination the applicant stated he had used alcohol, marijuana, cocaine, and speed. He scored 40 (extreme depression) on the Becks Depression Inventory and low on the Mood Disorder Questionnaire. c. His therapist stated that 3 months after his release from active duty the applicant started experiencing flash backs of his experiences in Vietnam. Like many veterans, he kept these to himself and worried that he might be losing his mind. Untreated, his PTSD symptoms worsened until he could no longer function adequately in the community. The applicant was suffering from an extreme form of PTSD directly related to his tour of duty in Vietnam. 14. In the development of this case an advisory opinion was obtained from an Army Review Boards Agency staff psychologist, who states: a. The review was based on a limited review of VA records through the Joint Legacy Viewer (JLV), applicant-supplied evidence submitted with his request, and supplementary materials. c. Supplementary evidence provided new, undated medical information, but this information appears to be from before 2004. In the new information, his therapist wrote the applicant suffered from "an extreme form of PTSD directly related to his tour of duty in Vietnam." According to this therapist, within 3 months of his discharge, the applicant was having unequivocal symptoms of PTSD that included "video flashbacks" several times each day and that these flashbacks were continuing at the time of her evaluation of him. She also believed he was depressed, irritable, insomniac, unfocused on tasks and impaired in his ability to love, with a resulting social isolation. d. His therapist's diagnosis of PTSD and subsequent history are consistent with the hypothesis that the applicant had begun to experience symptoms of PTSD upon his return to the U.S. from Vietnam in 1967. The therapist also noted prolonged periods of his being in the bush during his Vietnam tour as sources of combat trauma. During his Vietnam tour, the applicant was an infantryman and earned the Combat Infantryman Badge as a combat soldier. e The applicant's periods of AWOL occurred after his return from Vietnam and were also driven by family problems (a reportedly a "psychotic" wife who would disappear with their children). The circumstances the applicant was facing at the time of his return from combat would be difficult for anybody to tolerate, especially somebody in the grip of judgment impaired by PTSD and the emotional dysregulation that often accompanies it. Further, his symptoms of his PTSD were not so dramatic at that time of his return from Vietnam as to have made him easily diagnosable, even if PTSD had been in the diagnostic manuals at his time of service; however, his subsequent history makes it reasonable to date the onset of his PTSD as occurring during his military service and after his Vietnam combat exposures. The applicant claims he was never offered an opportunity during his time in service to seek treatment. f. The advising psychologist concluded that a review of available documentation found evidence of a medical disability or conditions which would support a change to the character or reason for the discharge in this case. A causal nexus between the applicant's behavioral health diagnoses and his misconduct was discovered. 15. A copy of the advisory opinion was forwarded to applicant for review and comment. 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. It provides the following: a. An honorable discharge (HD) is a separation with honor. The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty. b. A general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge. c. A bad conduct discharge (BCD) is a separation under conditions other than honorable issued to a Soldier as a result of criminal or morally unacceptable actions, pursuant only to an approved sentence of a general or special court-martial. 2. 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. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. 3. Army Regulation 15-185 sets forth the policy and procedures for the Army Board for Correction of Military Records (ABCMR). It provides that: a. The ABCMR is not an investigative body and will decide cases based on the evidence of record. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. If a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration. 4. The revised Department of Defense (DOD) review policies and procedures for Vietnam Era service members with diagnoses of PTSD states that those service members who were administratively discharged under other than honorable conditions and may have had an undiagnosed condition of PTSD at the time of discharge are to receive a comprehensive review with the emphasis being placed on determining if the previously undiagnosed condition of PTSD may have been a mitigating factor in the Soldier's misconduct and discharge. 5. The Diagnostic and Statistical Manual of Mental Disorders (DSM) is published by the American Psychiatric Association (APA) states PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster. 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-Ill 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." 6. 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. 7. 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. 8. 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 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. 9. 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. 10. 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? 11. Although the DOD acknowledges that some Soldiers who were administratively discharged under conditions other than honorable 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. DISCUSSION: 1. The applicant's discharge proceedings for misconduct were conducted in accordance with law and regulations in effect at the time. His bad conduct discharge was commensurate with the reason for discharge as adjudicated at the time. He had 1,369 days of lost time subsequent to his service in Vietnam for which he had been awarded the Combat Infantryman Badge and Bronze Star Medal. 2. 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. Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible recharacterization of their overall service. 3. The advising psychologist concluded that a review of available documentation found evidence of a medical disability or conditions which would support a change to the character or reason for the discharge in this case. A causal nexus between the applicant's behavioral health diagnoses and his misconduct was discovered. 4. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. 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) AR20150017302 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017302 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2