BOARD DATE: 3 August 2017 DOCKET NUMBER: AR20160002677 BOARD VOTE: __x______ __x______ ___x__ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 3 August 2017 DOCKET NUMBER: AR20160002677 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant amendment of the Army Board for Correction of Military Records' (ABCMR) decision in Docket Number AR20130006546, dated 12 December 2013. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 24 December 1968 to show the characterization of his service as "Under Honorable Conditions (General)." __________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: 3 August 2017 DOCKET NUMBER: AR20160002677 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 reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision as promulgated in Docket Number AR20130006546 on 12 December 2013. Specifically, he requests an upgrade of his under other than honorable conditions discharge and a personal appearance before the Board. 2. The applicant states, in effect, that his doctor did not diagnosis him properly during his separation examination, as he believes he had post-traumatic stress disorder (PTSD) resulting from his service in the Republic of Vietnam. His behavior was not normal and he had no control over his thinking contrary to the doctor's opinion. 3. The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 24 December 1968, and approximately 250 pages of medical documentation from the Department of Veterans Affairs Medical Center (VAMC) in Atlanta, GA. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130006546 on 12 December 2013. 2. The applicant provides new evidence in the form of approximately 250 pages of medical documentation, which he submitted in support of his contention that he has suffered from PTSD since his service in the Republic of Vietnam. His request is being reconsidered based on this new argument and/or contention and the medical documents he submitted in support of his request. 3. The applicant was inducted into the Army of the United States on 18 October 1967. He completed his initial entry training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman). 4. The applicant served in the Republic of Vietnam from on or about 22 May 1968 through on or about 27 October 1968, a period of 5 months and 5 days. During this period, he was assigned to Company A, 2nd Battalion, 39th Infantry Regiment. 5. Summary Court-Martial Order Number 15, issued by Headquarters, 2nd Battalion, 39th Infantry Regiment on 6 September 1968, shows the applicant was convicted of violating the following Articles of the Uniform Code of Military Justice (UCMJ): a. One specification of Article 90; specifically, he willfully disobeyed a lawful order from his superior officer, at Rach Kien Base, Republic of Vietnam, on or about 29 August 1968. b. One specification of Article 86; specifically, he failed to go to his appointed place of duty, at Rach Kien Base, Republic of Vietnam, on or about 29 August 1968. 6. Special Court-Martial Order Number 53, issued by Headquarters, 2nd Battalion, 39th Infantry Regiment on 9 October 1968, shows the applicant was convicted of violating the following Articles of the UCMJ: a. One specification of Article 85; specifically, he quit his unit in combat and deserted his unit, on or about 7 September 1968, and did remain so absent in desertion until on or about 15 September 1968, at Rach Kien Base, Republic of Vietnam. b. One specification of Article 86; specifically, he was absent without leave (AWOL) from on or about 16 September 1968 through on or about 30 September 1968, at Rach Kien Base, Republic of Vietnam. 7. The applicant's immediate commander notified the applicant on 22 November 1968, of his intent to initiate separation actions against him in accordance with Army Regulation 635-212 (Personnel Separations – Unfitness and Unsuitability), by reason of unfitness. The commander cited the applicant's frequent incidents of a discreditable nature with military authorities and his inability or unwillingness to respond to rehabilitative efforts to become a satisfactory Soldier. The applicant acknowledged receipt of the action the same date. 8. The applicant underwent a mental status evaluation on 25 November 1968, after having been referred by his immediate commander to receive a psychiatric clearance. The military psychiatrist concluded there was no evidence of a psychiatric disease to warrant disposition through medical channels. He was able to distinguish right from wrong and adhere to the right. His diagnosis was that of sociopathic personality. He was not amenable to psychiatric treatment, counseling, or rehabilitative measures. He was cleared for administrative actions deemed appropriate by his chain of command. 9. The applicant met with counsel on 26 November 1968 and was advised of the basis for the contemplated separation action by reason of unfitness. He was advised of his rights, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures that were available to him. He further acknowledged he understood that he could expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him. He also acknowledged he could be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life in the event an undesirable discharge was issued to him. He waived consideration of his case by a board of officers, he waived a personal appearance before a board of officers, and he declined to make a statement in his own behalf. 10. The applicant's immediate commander formally initiated separation action against the applicant on 1 December 1968, under the provisions of Army Regulation 635-212, by reason of unfitness. As his reason(s) for initiating separation actions against the applicant, his immediate commander cited the applicant's intentional shirking of his duties in combat operations and his behavior, of such a manner as to repeatedly subject him to punitive action. 11. The applicant's intermediate commander recommended approval of the applicant's discharge on 1 December 1968, by reason of unfitness, and recommended the issuance of an Undesirable Discharge Certificate. 12. The separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212, by reason of unfitness (frequent involvement in incidents of discreditable nature with civil or military authorities) and directed the issuance of an Undesirable Discharge Certificate. 13. The applicant was discharged on 24 December 1968. The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-212, by reason of unfitness, and he received an under other than honorable conditions characterization of service. 14. The Army Discharge Review Board determined, on 10 November 1980, that the applicant's discharge was both proper and equitable and denied his request for an upgrade. 15. The applicant's available record does not contain evidence of his treatment for PTSD or any other behavior health/mental health condition. 16. The applicant provides approximately 250 medical documents from the Atlanta VAMC, covering the timeframe May 2013 to February 2017. These documents show he was treated and diagnosed for a variety of medical conditions, including PTSD. 17. In connection with the processing of this case, an advisory opinion was obtained on 21 April 2017 from the Army Review Boards Agency (ARBA) Clinical Psychiatrist, who opined: a. The applicant enlisted in the Army on 18 October 1967 in the MOS 11B. While in the Army, he served a tour of duty in the Republic of Vietnam. He is now reapplying to the ABCMR for a discharge upgrade and is contending that his misconduct while on active duty was due to undiagnosed PTSD. b. Documentation reviewed included the applicant's ABCMR application, his 13 October 2013 ABCMR Record of Proceedings, his 10 November 1980 ADRB Record of Proceedings, his undated ADRB personal statement, VA medical documentation and his military personnel and medical records. The electronic military medical record was not reviewed as it was not in use during the applicant's time in service. c. A review of the VA medical documentation indicates that the applicant has been diagnosed with chronic PTSD (related to combat exposure), major depressive disorder, recurrent and cannabis use disorder. The applicant's PTSD symptoms are identified as follows: recurrent distressing dreams, intrusive thoughts and images about the combat trauma, strong emotional and physiological reactions to reminders of the trauma, avoidance behaviors, irritability, anger, impaired sleep, impaired concentration, increased vigilance, exaggerated startle reflex, increased distress at reminders of the trauma and feelings of detachment from others. d. A review of the applicant's undated ADRB personal statement (a letter he wrote to a doctor, indicates that the applicant was on a 30 day profile after having hernia surgery in Vietnam. This profile expired on 7 September 1968 and the applicant was ordered to go back on patrol and refused. The applicant wrote "I had been around guys blown up, shot up and all other kinds of ups for the last 2 months. And by me just having the operation, I didn't feel safe. I developed a fear, a fear I didn't have before." e. A review of the applicant's military records indicates the following: (1) A command directed Psychiatric Evaluation dated 25 November 1968 in which the military psychiatrist concluded that there was no evidence of psychiatric disease in the applicant which would warrant disposition through medical channels. The applicant was able to distinguish right from wrong and adhere to the right. The applicant was diagnosed with Sociopathic Personality. The evaluation stated that this diagnosis was not amenable to psychiatric treatment, counseling or rehabilitative measures. The applicant was cleared psychiatrically for any administrative actions deemed appropriate by command. (2) A Report of Medical History, dated 27 November 1968 in which the applicant endorses the following psychiatric symptoms: frequent trouble sleeping, nervous trouble of any sort. (3) A note in the ADRB Record of Proceedings dated 7 October 1980 which states: "Applicant's record was excellent until assignment to RVN (Republic of Vietnam)." f. There is no indication from the military records that the applicant failed to meet military medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness). His military record is void of any documentation of PTSD symptoms or diagnosis. g. The lack of documentation of PTSD symptoms in the applicant's military records does not necessarily indicate he did not have in-service PTSD. In the era of the applicant's military service, PTSD symptoms were frequently not recognized. In such cases, the presence of PTSD has to be inferred from behavioral indicators documented in the applicant's record. Such is the case with this applicant. In his 27 November 1968 separation Report of Medical History, the applicant indicated he was having problems with sleep and nervous issues. In his undated personal statement, the applicant indicates he could not return to combat patrol because he developed a "fear I didn't have before". Prior to going to Vietnam, however, the applicant was reported to have had "an excellent record." This pattern of performing well followed by suddenly refusing to perform due to fear of combat with accompanying anxiety and insomnia is not uncommon in Soldiers suffering from PTSD. h. In conclusion, the applicant has been diagnosed with PTSD related to combat exposure by the VA. Additionally, review of his military records indicates that the applicant more likely than not had undiagnosed PTSD while on active duty. Because PTSD can be associated with avoidant behaviors, there is likely a nexus between the applicant's PTSD and his misconduct. As such, the applicant's PTSD is considered mitigating for the offenses which led to his under other than honorable conditions discharge from the Army. 18. A copy of the advisory opinion was forwarded to the applicant on 24 April 2017, for information and to allow him the opportunity to submit comments or a rebuttal. By email, he responded on 20 May 2017, and opined, in effect, that he was grateful for any assistance he might receive. He felt different after he saw one of his fellow Soldier step on a land mine. His chain of command labeled him a coward; however, he feels he should have been treated better. REFERENCES: 1. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness. It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts. This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic policy 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. 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. 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. (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. (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. (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). (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 (6) Sleep disturbance f. Criterion F, duration: Persistence of symptoms (in Criteria B, C, D, and E) for more than one 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 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. 8. 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. 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 under other than honorable conditions 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. a. 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. b. 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. c. 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 request for an upgrade of his under other than honorable conditions discharge was carefully considered. 2. The applicant’s records reveal a history of indiscipline and/or misconduct including two instances of court-martial, one of which was for going AWOL and refusing to go on combat operations. Accordingly, his chain of command initiated separation action against him. The applicant's discharge was carried out in accordance with the applicable regulation, all requirements of law and regulation were met, and his rights were fully protected throughout the separation process. 3. The applicant contends his duty performance was excellent prior to his service in the Republic of Vietnam; however, his experiences in Vietnam left him with combat-related PTSD that went undiagnosed and therefore untreated. 4. The applicant's records are void of evidence that confirms he was diagnosed with PTSD while in military service. However, after his discharge, he was diagnosed with PTSD by the VA's mental health professionals, who determined his condition was service-connected as a result of his experiences during Vietnam, albeit some years later. 5. The Department of Defense now has a 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. Consequently, Soldiers who suffered from PTSD, who were separated solely for misconduct subsequent to a traumatic event, warrant careful consideration for the possible re-characterization of their overall service. 6. Based on the applicant's experiences, he was diagnosed with PTSD by a competent mental health professional. The ARBA Clinical Psychologist opined that, based on the information available, it is likely that the applicant's PTSD existed at the time of his service, especially during his service in the Republic of Vietnam, and was a causative factor in the misconduct that led to his discharge. 7. The applicant's record is void of any misconduct prior to his service in Vietnam as evidenced by his available records. During his service in Vietnam he committed multiple infractions by refusing orders and avoiding combat operations. 8. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this 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) AR20160002677 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002677 13 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2