BOARD DATE: 16 May 2017 DOCKET NUMBER: AR20160002060 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: 16 May 2017 DOCKET NUMBER: AR20160002060 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: 16 May 2017 DOCKET NUMBER: AR20160002060 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 honorable or general under honorable conditions. 2. The applicant states: a. He wants his discharge upgraded based on his 2 years of good service. b. He incurred many problems after serving in Vietnam and he now truly knows his state of mind was very bad. He is not now or ever going to blame the military for his actions, but he does believe the time he spent in Vietnam and the effects of war affected his mental state and caused him to act in a wrong manner. c. He has spent over 40 years trying to give back to the people in his community for the time he spent away from his duties in the military. He was not the same young man that went to Vietnam when he returned. d. He knows he will not live long enough to repay the debt he owes to his fellow servicemen and servicewomen for the wrong he did. He knows he could send pages of good deeds that he has done over the years and still never repay the wrong he did by not continuing his duty when he came home. He is truly sorry. 3. The applicant provides: * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * newspaper articles * photographs * chaplain's evaluation * psychiatric evaluation * certificates of ordination and recognition 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 was born on 17 March 1950. He was inducted into the Army of the United States on 3 January 1968. On 24 September 1968, he was honorably discharged for immediate enlistment in the Regular Army. 3. He enlisted in the Regular Army on 25 September 1968 for a period of 3 years. He completed his training and was awarded military occupational specialty 63B (wheel vehicle mechanic). 4. He arrived in Vietnam on or about 4 December 1968. 5. On 5 May 1970, he was convicted by a special court-martial of being absent without leave (AWOL) from 9 January 1970 to 15 April 1970. He was sentenced to confinement for 5 months and forfeiture of $100.00 pay per month for 5 months. On 8 May 1970, the convening authority approved the sentence. 6. He departed Vietnam on or about 31 May 1970. 7. On 4 February 1971, he underwent a psychiatric evaluation and was found to be mentally responsible to distinguish right from wrong and adhere to the right. He had no disqualifying mental or physical disease or defect sufficient to warrant discharge through medical channels. He was psychiatrically cleared for any administrative or disciplinary action. 8. He provided a chaplain's evaluation, dated 8 February 1971, wherein the chaplain stated: a. The applicant was interviewed for purposes of possible elimination from the service. b. He felt the applicant should stay on duty. If he were discharged now, this would be another in a series of personal battles faced and lost. The applicant desires to be out of the Army, but he has already put in 2 years of honorable service, including a tour in Vietnam. He would very likely be AWOL again, but there was about a 20-percent chance that he would not. He recommended the applicant's retention on active duty. 9. On 9 February 1971, he was convicted by a special court-martial of being AWOL from 3 August 1970 to 20 January 1971. He was sentenced to confinement for 4 months and forfeiture of $50.00 pay per month for 4 months. On 10 February1971, the convening authority approved the sentence. 10. On 5 March 1971, his unit commander initiated action to separate him for unfitness under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability). The basis for the proposed discharge was the applicant's two special court-martial convictions, lost time due to AWOL and confinement, lack of motivation toward self-improvement, and negative attitude regarding his military responsibilities. 11. On 8 March 1971 after consulting with counsel and being advised of his recommended separation for unfitness, he waived consideration of his case by a board of officers and representation by counsel. He acknowledged that he understood he might expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions were issued to him. He further acknowledged he understood he might be ineligible for any or all benefits as a veteran under both Federal and State laws and he might expect to encounter substantial prejudice in civilian life as the result of issuance of an undesirable discharge under other than honorable conditions. He elected not to submit a statement in his own behalf. 12. On 25 March 1971, the separation authority approved the recommendation for separation and directed the issuance of an Undesirable Discharge Certificate. 13. He was discharged under other than honorable conditions on 30 March 1971 under the provisions of Army Regulation 635-212. He completed 2 years, 1 month, and 23 days of total active service with 395 days of lost time. The separation program number 386 shown on his DD Form 214 represents unfitness due to an established pattern for shirking. He was issued an Undesirable Discharge Certificate. 14. There is no evidence of record showing he was diagnosed with any behavioral or mental health condition prior to his discharge. 15. 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. 16. He provided newspaper articles and photographs depicting his post-service accomplishments. 17. On 13 December 2016, the Army Review Boards Agency Psychiatrist rendered an advisory opinion. She reviewed the applicant's available records and, based on the information available, stated: a. The applicant's records are void of any behavioral health-related medical notes. There is no documentation he met the criteria for post-traumatic stress disorder (PTSD) or any other psychiatric disorder at the time of his separation from the Army. There is no evidence indicating he failed to meet medical retention standards while he was serving on active duty. b. He was evaluated by Behavioral Health as part of his separation process. His psychiatric evaluation, dated 4 February 1971, states he was mentally responsible to distinguish right from wrong and adhere to the right, he has the mental capacity to understand and participate in board proceedings, he has no disqualifying mental or physical disease or defect sufficient to warrant discharge through medical channels, and he was psychiatrically cleared for any administrative or disciplinary action. c. There is no evidence of PTSD or any behavioral health condition in the applicant's military records. The applicant has not submitted any post-service medical documentation. Based on the information currently available, there is no evidence he suffered from any behavioral health condition while in the military. 18. The applicant was provided a copy of the advisory opinion for review and comment. He did not respond. REFERENCES: 1. Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unsuitability and unfitness. Paragraph  6a(4) provided that members involved in an established pattern of shirking were subject to separation for unfitness. An undesirable discharge was normally considered appropriate. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic authority for the separation of enlisted personnel. a. 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. 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. 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. 4. 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." 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 fifth edition of the DSM 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 criterion assesses functioning, and the eighth criterion clarifies symptoms as not attributable to a substance or co-occurring medical condition. a. Criterion A – Stressor: The person was exposed to: death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence, as follows (one required): (1) direct exposure; (2) witnessing, in person; (3) indirectly, by learning that a close relative or close friend was exposed to trauma. If the event involved actual or threatened death, it must have been violent or accidental; or (4) repeated or extreme indirect exposure to aversive details of the event(s), usually in the course of professional duties (e.g., first responders collecting body parts, professionals repeatedly exposed to details of child abuse). This does not include indirect non-professional exposure through electronic media, television, movies, or pictures. b. Criterion B – Intrusion Symptoms: The traumatic event is persistently re-experienced in the following way(s) (one required): (1) recurrent, involuntary, and intrusive memories; (2) traumatic nightmares; (3) dissociative reactions (e.g., flashbacks) which may occur on a continuum from brief episodes to complete loss of consciousness; (4) intense or prolonged distress after exposure to traumatic reminders; or (5) marked physiologic reactivity after exposure to trauma-related stimuli. c. Criterion C – Avoidance: Persistent effortful avoidance of distressing trauma-related stimuli after the event (one required): (1) trauma-related thoughts or feelings or (2) trauma-related external reminders (e.g., people, places, conversations, activities, objects, or situations). d. Criterion D – Negative Alterations in Cognitions and Mood: Negative alterations in cognitions and mood that began or worsened after the traumatic event (two required): (1) inability to recall key features of the traumatic event (usually dissociative amnesia; not due to head injury, alcohol, or drugs); (2) persistent (and often distorted) negative beliefs and expectations about oneself or the world (e.g., "I am bad," "The world is completely dangerous"); (3) persistent distorted blame of self or others for causing the traumatic event or for resulting consequences; (4) persistent negative trauma-related emotions (e.g., fear, horror, anger, guilt, or shame); (5) markedly diminished interest in (pre-traumatic) significant activities, feeling alienated from others (e.g., detachment or estrangement); and (6) constricted affect, persistent inability to experience positive emotions. e. Criterion E – Alterations in Arousal and Reactivity: Trauma-related alterations in arousal and reactivity that began or worsened after the traumatic event (two required): (1) irritable or aggressive behavior, (2) self-destructive or reckless behavior, (3) hypervigilance, (4) exaggerated startle response, (5) problems in concentration, and (6) sleep disturbance. f. Criterion F – Duration: Persistence of symptoms (in Criteria B, C, D, and E) for more than 1 month. g. Criterion G – Functional Significance: Significant symptom-related distress or functional impairment (e.g., social, occupational). h. Criterion H – Exclusion: Disturbance is not due to medication, substance use, or other illness. 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 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. 8. 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. 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 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 was a young man; however, age is not a sufficiently mitigating factor. He was 18 years of age when he enlisted and he successfully completed training. There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed their military terms of service. 2. His post-service accomplishments are commendable. However, good post-service conduct alone is normally not a basis for upgrading a discharge. 3. Although he contends his state of mind was very bad after he returned from Vietnam, there is no evidence and he provided no evidence showing he was diagnosed with any mental health condition prior to his discharge on 30 March 1971. The medical advisor stated there was no documentation he met the criteria for PTSD or any other psychiatric disorder at the time of his separation from the Army. 4. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. He had an opportunity to submit a statement in which he could have voiced his concerns and he elected not to do so. The characterization of service he received was commensurate with the reason for his discharge. 5. His record of service included two special courts-martial convictions and 395 days of lost time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002060 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002060 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2