IN THE CASE OF: BOARD DATE: 18 October 2016 DOCKET NUMBER: AR20150017930 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: 18 October 2016 DOCKET NUMBER: AR20150017930 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: 18 October 2016 DOCKET NUMBER: AR20150017930 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 general discharge to an honorable discharge. 2. The applicant states: a. He was the fourteenth of his parents' 16 children and he was raised in Oklahoma. He was an honor student in high school. He volunteered for service in Vietnam. It was kill or be killed in the war. He grew up hunting in the woods and was well prepared for the task and survived Vietnam. He didn't know he was silently wounded in his mind and heart. b. He served honorably in the Army until after Vietnam. He asked for the chapter 10 discharge and did not know how it would affect his life. He is now 67 years old. He made a dumb decision many years ago and has suffered since then. He has had suicidal thoughts. He thought it was normal to have nightmares and sleepless nights. The symptoms of post-traumatic stress disorder (PTSD) have caused him harm over the years because he did not know he had PTSD. c. It took him many years to understand his mental health condition. At first he self-medicated and then eventually he sought help. He was a good Soldier and didn't know anything about PTSD or that he had it. He acted out as soon as he returned from Vietnam. He has suffered the consequences of untreated PTSD for over 40 years. 3. The applicant provides: a. DD From 214 (Report of Separation from Active Duty for the period 13 February 1967 to 18 September 1970 showing his under other than honorable conditions (UOTHC) discharge. b. DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) showing his UOTHC discharge was upgraded to a general discharge under the Department of Defense (DoD) Discharge Review Program. c. Department of Veterans Affairs (VA), New York Harbor Healthcare Service letter, dated 29 October 2008, stating the applicant was receiving treatment for combat-related PTSD. The letter is signed by the Director, PTSD Clinical Team, and he is board certified in psychiatry. d. VA medical records showing he received treatment for various medical conditions including PTSD. 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 enlisted in the Regular Army on 13 February 1967. He held military occupational specialty 11B (Light Weapons Infantryman). 3. His DA Form 20 (Enlisted Qualification Record) shows in: a. item 31 (Overseas Service) he served in Vietnam from 19 August 1967 through 19 August 1968; b. item 38 (Record of Assignments) while in Vietnam he served as a rifleman in Company C, 54th Infantry, and as a senior scout observer in Company E (Long-range Reconnaissance Patrol (LRP)), 20th Infantry; c. item 41 (Awards and Decorations), in part, the Combat Infantryman Badge; and d. item 44 (Time Lost) several entries totaling over 440 days. 4. The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, on 23 December 1968 for two specifications of failing to go at the time prescribed to his appointed place of duty. 5. On 21 July 1970 court-martial charges were preferred against the applicant for two specifications of being absent without leave (AWOL) from 11 September to 17 September 1969 and from 10 October 1969 to 20 July 1970 and one specification of failing to obey a lawful order. 6. On 10 August 1970, the applicant acknowledged receipt of the statement of charges. He consulted with legal counsel and he was advised of the basis for the contemplated court-martial. He voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He acknowledged he had been afforded the opportunity to speak with counsel prior to making his request. He acknowledged he understood the elements of the offense he was charged with and he was: * making the request of his own free will * making a statement in his own behalf * advised he might be furnished an Undesirable Discharge Certificate 7. He acknowledged he might expect to encounter substantial prejudice in civilian life if he were issued an undesirable discharge and he: * would be deprived of many or all Army benefits * might be ineligible for many or all veterans' benefits * might be deprived of his rights and benefits as a veteran under both Federal and State laws 8. In his personal statement, he said: a. He was in the stockade facing three counts of AWOL and pending an investigation for homosexual activity. He was awaiting psychiatric evaluation for which he was referred for treatment by a doctor from the Los Angeles Free Clinic who treated him for mental disturbances and drug abuse from 5 May 1970 until he surrendered to military authorities at Fort Sill, OK, on 21 July 1970. b. His problems began in Vietnam when he was assigned to Company E (LRP), 20th Infantry. The "six man family groups" functioned well in the field until one discipline issue led to the next. His attitude was unfavorable and he began to receive punishments leading to suspension of his promotion. He was still a private first class after 8 months in Vietnam. c. He returned to the U.S. in August 1968. He received NJP on 20 October 1968 and 21 November 1968 for his adjustment problems like failing to repair, traffic warrants, and other minor infractions. His problems and the pressure he felt caused him to turn to drug use. He got hooked on heroin. He received additional NJP leading to a rehabilitative reassignment. He went AWOL again and now he was 6 months past his scheduled separation date, mentally disturbed, and trying to kick the heroin habit and the problems behind his issues. 9. The separation authority approved the discharge request and directed the issuance of an Undesirable Discharge Certificate. On 18 September 1970 he was discharged. The DD Form 214 issued at that time shows his character of service as UOTHC. He completed 2 years, 4 months, and 9 days of net active service with 448 days of lost time. 10. His character of service was subsequently changed to under honorable conditions (general) under the DoD Discharge Review Program. He was issued a new DD Form 214. A DD Form 215 (Correction to DD Form 214), dated 25 July 1978, shows his discharge under honorable conditions (general) was affirmed. 11. The applicant's service medical records are not available for review. 12. In the processing of this case an advisory opinion was obtained from the Medical Advisor, Army Review Boards Agency, on 26 August 2016. The physiatrist noted: a. A review of the VA medical records provided by the applicant indicate he was diagnosed with PTSD and polysubstance dependence. His PTSD symptoms include hypervigilance, nightmares, irritability, avoidant behaviors and repetitive intrusive thoughts of the trauma. He has also had periods of homelessness and struggles with polysubstance dependence. The stressor for his PTSD occurred during combat while in Vietnam. He witnessed the burning of a woman and her child by his squad. The medical records indicate the applicant feels extreme guilt and responsibility for this event because he pointed out to his squad leader that the woman had a weapon. Shortly after redeploying to the U.S. in December 1968, he went AWOL. b. Based on a thorough review of the available medical records, there is evidence the applicant met the criteria for PTSD during and after his military service. Given that PTSD was not recognized as a diagnosis during his time in service, it is unlikely that he or anyone else recognized and attributed his misconduct to PTSD. Given the severity and chronicity of his impairment and his need for continued medical and supportive services, it is clear that he had a mitigating behavioral health condition which led to his separation from the Army. 13. A copy of the advisory opinion was provided to the applicant for his review and comment. He indicated he agreed with the findings of the advisory opinion. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of the version in effect at the time provided that 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 of 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 applicant was provided an opportunity to consult with counsel. The Soldier was required to sign the request indicating he understood he could receive a discharge under other than honorable conditions, 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 certificate 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 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. 2. The Special Discharge Review Program (SDRP) was based on a memorandum from Secretary of Defense Brown and is often referred to as the “Carter Program.” It mandated the upgrade of individual cases in which the applicant met one of several specified criteria and when the separation was not based on a specified compelling reason to the contrary. The Army Discharge Review Board had no discretion in such cases other than to decide whether recharacterization to fully honorable as opposed to a general discharge was warranted in a particular case. An individual who had received a punitive discharge was not eligible for consideration under the SDRP. Absentees who returned to military control under the program were eligible for consideration after they were processed for separation. Individuals could have their discharges upgraded if they met any one of the following criteria: wounded in action; received a military decoration other than a service medal; successfully completed an assignment in Southeast Asia; completed alternate service; received an honorable discharge from a previous tour of military service; or completed alternate service or were excused from completing alternate service in accordance with Presidential Proclamation (PP) 4313 of 16 September 1974. Compelling reasons to the contrary to deny discharge upgrade were desertion/AWOL in or from the combat area, discharge based on a violent act of misconduct, discharge based on cowardice or misbehavior before the enemy, or discharge based on an act or misconduct that would be subject to criminal prosecution under civil law. 3. Public Law 95-126 provided in pertinent part for a "Relook Program." All cases upgraded from under other than honorable conditions under the SDRP or the extension to PP 4313 had to be relooked and affirmed or not affirmed under uniform standards. Two of the principal features of Public Law 95-126 were: (1) the addition of 180 days of continuous unauthorized absence to other reasons (e.g., conscientious objector, deserters) for discharge which act as a specific bar to eligibility for Veterans Administration (VA) benefits. Such absence must have been the basis for discharge under other than honorable conditions and is computed without regard to expiration term of service; and (2) prospective disqualification for receipt of VA benefits for those originally qualifying as a result of upgrade by Presidential Memorandum of 19 January 1977 or the SDRP, unless an eligibility determination was made under the published uniform standards and procedures. 4. 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." 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 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. 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 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 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. 8. In view of the foregoing, on 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards 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. 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 the 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 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. Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial. The applicant voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 2. His request for a chapter 10 discharge shows he wished to avoid a court-martial and a potential punitive discharge for his extended period of lost time. His service was appropriately characterized based on his misconduct. His misconduct rendered his service unsatisfactory. He has provided no evidence to show an injustice or an error occurred in the processing of his discharge. 3. An honorable character of service is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel and an under honorable conditions character of service is appropriate for those Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 4. The ARBA medical advisory official indicated that, based on a thorough review of the available medical records, there is evidence that the applicant met the criteria for PTSD during and after his military service. Given that PTSD was not recognized as a diagnosis during his time in service, it is unlikely that he or anyone else recognized and attributed his misconduct to PTSD. Given the severity and chronicity of his impairment and his need for continued medical and supportive services, it is clear that he had a mitigating behavioral health condition during his period of service post-Vietnam. 5. The characterization of his service was upgraded to under honorable conditions (general) under the SDRP and his eligibility for VA benefits was established when his general discharge was affirmed under the uniform standards established by Public Law 95-126. 6. The evidence of record does not show that his service rose to the level required for an honorable characterization of 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) AR20150017930 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017930 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2