IN THE CASE OF: BOARD DATE: 7 February 2017 DOCKET NUMBER: AR20160001212 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: 7 February 2017 DOCKET NUMBER: AR20160001212 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: 7 February 2017 DOCKET NUMBER: AR20160001212 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 undesirable discharge to general under honorable conditions. 2. The applicant states he received no counseling at the time of his discharge. He was suffering from post-traumatic stress disorder (PTSD) as now confirmed by the Department of Veterans Affairs (VA) disability rating of 70 percent effective 31 July 2014. His prior service was exemplary during his assignment in Vietnam. 3. The applicant provides: * VA documentation, dated 26 May 2015 * DD Form 214 (Report of Separation from Active Duty) 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's complete military records are not available for review. 3. He enlisted in the Regular Army on 22 September 1969 for a period of 3 years. He served as an armorer/unit supply specialist in Vietnam from 10 November 1970 to 9 November 1971. On 21 March 1972, he was honorably released from active duty. He completed 2 years and 6 months of active service during this period. 4. He enlisted in the Regular Army again on 5 October 1972 following a break in active service. 5. His records are void of the specific facts and circumstances surrounding his discharge action; however, his DD Form 214 for the period ending 7 January 1974 shows he was discharged under other than honorable conditions (UOTHC) on 7 January 1974 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 13-5a(1). He completed 3 years, 3 months, and 3 days of active service during this period. The separation program number 28B shown on his DD Form 214 represents unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities. 6. His DD Form 214 for the period ending 7 January 1974 also shows: * he was separated from the service on temporary records * he had 70 days of lost time 7. There is no evidence showing he was diagnosed with PTSD prior to his discharge. 8. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 9. He provided VA documentation, dated 26 May 2015, showing he was assigned a 70-percent disability rating for PTSD effective 31 July 2014. 10. An advisory opinion was rendered by the Army Review Boards Agency psychiatrist, dated 23 November 2016, wherein she stated: a. The VA documentation, dated 26 May 2015, shows the applicant was awarded 70-percent service-connected disability rating for PTSD. b. His military personnel and medical records are void of any mention of PTSD symptoms. There is no documentation contained within the record of any behaviors or actions which might be attributed to PTSD. c. Based on the VA documentation submitted by the applicant, it is clear he is 70-percent service-connected disabled for PTSD. However, it is not clear when his PTSD began as no documentation is available which establishes the presence of an in-service diagnosis of PTSD. Moreover, given the absence of pertinent military records, no determination about his PTSD diagnosis and whether it accounted for the misconduct leading to his undesirable discharge can be made. 11. A copy of this advisory opinion was provided to the applicant for comment and/or rebuttal. He responded as follows: a. In an undated letter, he stated his PTSD symptoms started the minute he left Vietnam. Knowing that some of his friends were wounded, maybe for life, and he didn't get wounded made him feel guilty and like he didn't do enough. He tried to push it out of his mind with drinking, women, and work, but his feelings of guilt were not going away. Within 6 months of his discharge, he again enlisted and asked for infantry school because this would be an automatic ticket back to Vietnam where he could leave a permanent mark on the Viet Cong or on himself. He provided a report from the VA showing his PTSD disability rating. b. In a second letter, he stated he was supposed to be counseled at least twice and given a mental and physical evaluation but none of this happened. His contract for infantry school was ignored and his rank was stripped from him because he wouldn't be the colonel's arms room boy. He made the rank of sergeant after 18 months and he was a good Soldier. He provided a certificate of membership and a letter from the VA, dated 7 December 2016. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 13-5a(1), in effect at the time, provided for discharge due to unfitness because of frequent incidents of a discreditable nature with civil or military authorities. b. 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. Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. 3. 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." 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. 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 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 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. 6. 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 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 applicants' service. 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 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 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 UOTHC 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 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. 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 applicant contends he suffered from PTSD the moment he left Vietnam. There is no evidence and he provided no evidence showing he was diagnosed with PTSD or any mental health condition prior to his discharge in January 1974. 2. The VA documentation showing he was rated 70-percent disabled for PTSD effective 31 July 2014 is noted. Post-service, the VA rates a veteran and awards compensation based on the veteran's social or industrial inability to adapt after military service. The rating decision by the VA does not demonstrate an error or injustice on the part of the Army. The VA, operating under its own policies and regulations, assigns service-connected disability ratings on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. 3. The advisory official found no documentation in the applicant's record of any behaviors or actions which might be attributed to PTSD and a determination about his PTSD diagnosis and whether it accounted for the misconduct leading to his undesirable discharge could not be made given the absence of pertinent military records. 4. In the absence of evidence to the contrary, it must be presumed that the applicant's separation processing was administratively correct and in conformance with applicable regulations. Without the discharge packet to consider, it is presumed that the authority and reason for his discharge and the characterization of service he received were commensurate with his overall record of service during his second enlistment period. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001212 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001212 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2