BOARD DATE: 14 September 2017 DOCKET NUMBER: AR20150018129 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: 14 September 2017 DOCKET NUMBER: AR20150018129 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. by reissuing the applicant's DD Form 214 for the period ending 19 January 1973 to show the characterization of service as "General, Under Honorable Conditions." b. entering on his reissued DD Form 214 the SSN shown on his Record of Induction (DD Form 47). 2. The Board further determined 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 the upgrade of his bad conduct discharge to an honorable discharge. ______________x___________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 14 September 2017 DOCKET NUMBER: AR20150018129 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 and correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his social security number (SSN) as xxx-xx-5xxx. 2. He states, in effect, that he volunteered for the draft at 17 years of age and he served his country in combat. He deserves an honorable discharge as evidenced by his awards. He was then and he is now a proud Soldier and veteran. The applicant further states that his SSN is incorrect. 3. He provides his DD Form 214 and a letter of support from his spouse. 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. His DD Form 47 (Record of Induction) shows the applicant was inducted into the Army of the United States on 30 August 1968 and his SSN is listed as xxx-xx-5xxx. 3. He served in Vietnam from 10 March to 11 December 1969 as a cannoneer assigned to 1st Battalion, 8th Artillery, 25th Infantry Division. He received excellent conduct and efficiency ratings during his foreign service. The highest grade held was specialist four and the highest award received was the Bronze Star Medal. 4. Special Court-Martial (SPCM) Order Number 60, issued by Headquarters Command, U.S. Army Infantry Center, Fort Benning, GA, dated 18 January 1971, shows the applicant pled guilty and was found guilty of two specifications of being absent without leave (AWOL) from: * 11 February to 2 December 1970 * 15 to 24 December 1970 5. His punishment included confinement at hard labor for three months (suspended) and reduction to private (PV1/E-1). 6. Item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS) of his DA Form 20 (Personnel Qualification Record) shows he had additional lost time from: * 25 December 1970 to 7 January 1971, pretrial confinement * 18 to 21 February 1971, AWOL * 22 February 1971 to 22 June 1972, dropped from the rolls – desertion 7. The applicant was apprehended by civil authorities on 23 June 1972 in Columbus, GA. 8. On 30 June 1972, after consulting with counsel, 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 submitted a statement in his own behalf wherein he indicated he was not suited for military life and he had gone AWOL to help provide financial support for his parents. His chain of command recommended disapproval of his request, in part, because he was AWOL and listed as a deserter for a total of 487 days. 9. General Court Martial (GCM) Order Number 41, issued by Headquarters, U.S. Army Infantry Center and Fort Benning, Fort Benning, GA, dated 25 August 1972, shows the applicant was found guilty of two specifications of being AWOL from: * 18 to 22 February 1971 * 22 February 1971 to 23 June 1972 10. He was sentenced to a bad conduct discharge, forfeiture of all pay and allowances, 10 months of confinement at hard labor, and reduction to the lowest enlisted grade. Only so much of the sentence that provided for a bad conduct discharge, confinement at hard labor for six months (deferred), and forfeiture of all pay and allowances (deferred) was approved pending appellate review. 11. On 14 December 1972, the U.S. Army Court of Military Review affirmed the findings of guilty and the sentence. 12. On 8 January 1973, GCM Order Number 1 (Corrected Copy), issued by Headquarters, U.S. Army Infantry Center and Fort Benning, Fort Benning, GA, directed that, Article 71c of the Uniform Code of Military Justice having been complied with, the bad conduct discharge portion of the sentence be duly executed. That portion of the sentence pertaining to confinement and forfeiture was remitted effective the date of the order. 13. On 19 January 1973, the applicant was discharged accordingly. His DD Form 214 shows he was discharged as the result of court-martial and received an under conditions other than honorable characterization of service. It also shows at the time of his discharge he completed 2 years, 2 months, and 1 day of creditable active military service during the period with 491 days of lost time. 14. The applicant’s spouse provides a letter of support stating that the applicant left Vietnam on emergency leave. He now needs assistance to upgrade his discharge in order to seek treatment for his post-traumatic stress disorder (PTSD) and his possible exposure to Agent Orange. 15. The Army Review Boards Agency Clinical Psychologist reviewed the applicants available service and medical records to determine if his military separation was due to a diagnosis of PTSD or another boardable behavioral health condition. She opined that his record is void of the specific facts and circumstances concerning events that could have contributed to a service-connected diagnosis of PTSD; however, there is evidence that he met criteria for an adjustment disorder. Despite a lack of supportive medical documentation, to include no VA medical record, there is evidence that the applicant was experiencing adjustment difficulties in response to military stressors and distressing family circumstance. There was no evidence of misconduct prior to combat experience; however, upon returning home, the applicant demonstrated a propensity to leave without authorization despite corrective actions taken by his command, to include confinement and loss of rank. Because an adjustment disorder can be associated with avoidant behaviors, such as unauthorized absences, there is likely a nexus between the applicant’s misconduct and his behavioral health symptoms. 16. On 22 May 2017, the applicant responded to the medical advisory opinion. He states that after serving in Vietnam for 10 months, he went home on emergency leave because his father had a heart attack. At the end of his emergency leave, he returned to Fort Bragg, NC. Shortly thereafter he departed on emergency leave for a second time. During this period he tried to assist his mother financially, but his stateside pay was much less than his overseas pay. Therefore, in order to help his mother, he requested to be discharged or returned to Vietnam. All his requests were denied. He acknowledged that he made a big mistake by going AWOL, but in his state of mind he did not know what else to do. 17. He further states that although he was trained as a cannoneer, he served in combat as a forward observer and reconnaissance sergeant with a mechanized infantry unit. During his tour he went on many combat missions, witnessed his fellow Soldiers being blown apart, and spent three days and two nights camped next to over one hundred dead enemy soldiers' bodies. He never received any help when he returned home and he has no medical records to support his claim because his bad conduct discharge prevented him from seeking care at a Department of Veterans Affairs hospital. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. The regulation stipulates that a Soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, and that the appellate review must be completed and affirmed before the bad conduct discharge portion of the sentence is ordered duly executed. b. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. c. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 2. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. Under the provisions of 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. 3. 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." 4. 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. 5. 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. 6. 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. 7. 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. 8. On 25 August 2017 the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to mental health conditions, including PTSD; traumatic brain injury (TBI); sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. DISCUSSION: 1. The applicant requests his bad conduct discharge be upgraded to an honorable discharge based on his Vietnam service and correction of his SSN. 2. His record of induction shows his SSN as xxx-xx-5xxx. It appears his SSN was incorrectly recorded subsequent to his induction, and the error was carried forward to his DD Form 214. 3. He was convicted by an SPCM and a GCM of being AWOL for extended periods. His trial by court-martial was warranted by the gravity of the offenses for which he was charged. Conviction and discharge were effected in accordance with applicable law and regulations. 4. A review of his record found that he served as a cannoneer with an Artillery unit in Vietnam and it is likely he was subjected to the ordeals of war. Although the presence of PTSD cannot be established, the advising psychologist in this case noted that, upon returning home from his tour in Vietnam, the applicant demonstrated a propensity to leave without authorization despite corrective actions taken by his Command, to include confinement and loss of rank. Further, because an adjustment disorder can be associated with avoidant behaviors such as unauthorized absences, there is likely a nexus between the applicant’s misconduct and his behavioral health symptoms. 5. By law, any redress by this Board of the finality of a court-martial conviction is prohibited. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. 6. A conclusion that his misconduct may have been mitigated by the presence of an adjustment disorder would support a further conclusion that clemency is warranted in the form of upgrading his bad conduct discharge. 7. 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. 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) AR20150018129 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018129 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2