IN THE CASE OF: BOARD DATE: 17 October 2017 DOCKET NUMBER: AR20160002840 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 IN THE CASE OF: BOARD DATE: 17 October 2017 DOCKET NUMBER: AR20160002840 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AC90-06273, dated 26 April 1995. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing his DD Form 214 to show the character of his service as general under honorable conditions. 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 upgrading his character of service to fully honorable. _____________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: 17 October 2017 DOCKET NUMBER: AR20160002840 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 his earlier request to upgrade his discharge under other than honorable conditions (UOTHC) to honorable. 2. The applicant states: a. He wants his discharge upgraded for entitlement to Department of Veterans Affairs (VA) benefits. b. He is requesting this review in accordance with the liberal review directed by then-Secretary Hagel on 3 September 2014. c. He was sent to Vietnam immediately following his initial training. He was not ready for the carnage he was going to be exposed to when he arrived at his unit. This caused him to have many mental issues that he was not able to process and had to push away from his mind in order to survive and be effective in combat. He was able to do this by abusing drugs. He also used drugs because he was the only white person in an all-black squad. The other Soldiers did not trust him and thought he was a snitch. He was threatened with being killed by his own squad members and facing death in combat every day. d. His marijuana use led to heroin use. He realized he was addicted to heroin when he came back to the States, but it was not readily available the way it was in Vietnam. e. He is unable to receive any medical or disability benefits due to his discharge UOTHC. He has suffered severe disabilities (particularly post-traumatic stress disorder (PTSD)) as a direct result of combat he was exposed to in Vietnam. 3. The applicant provides: * DD Form 214 (Certificate of Release or Discharge from Active Duty) * undated self-authored statement * 22-page VA personal hearing transcript, dated 27 October 1992 CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC90-06273 on 26 April 1995. 2. The applicant's contentions are new evidence that were not previously considered by the Board and warrant consideration at this time. 3. The applicant was inducted into the Army of the United States on 23 March 1970. He departed the continental United States en route to Vietnam on 8 August 1970. He was assigned to Battery D, 1st Battalion, 44th Artillery Regiment, effective 17 August 1970. He was further assigned to Battery G, 65th Artillery Regiment, effective 21 January 1971. 4. His records show he departed Vietnam on or about 6 March 1971 for a 14-day leave. He did not return to his unit in Vietnam. On 22 June 1971, he was apprehended by civil authorities and returned to military control. 5. On 12 July 1971, he was convicted by a special court-martial of being absent without leave (AWOL) from 26 March 1971 to 22 June 1971. He was sentenced to confinement at hard labor for 5 months and forfeiture of $50.00 pay per month for 5 months. On 14 July 1971, the convening authority approved only so much of the sentence as provided for confinement at hard labor for 3 months and forfeiture of $50.00 pay per month for 3 months. 6. On 10 August 1971, he was convicted by a special court-martial of escaping from confinement. He was sentenced to confinement at hard labor for 4 months and forfeiture of $75.00 pay per month for 6 months. On 15 September 1971, the convening authority approved the sentence, but suspended forfeiture of pay in excess of $50.00 pay per month for 4 months until 14 January 1972. 7. He was AWOL again from 15 November 1971 until he surrendered to military authorities on 5 May 1988. On 13 May 1988, charges were preferred against him for the AWOL period. 8. On 13 May 1988, he consulted with counsel and 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 that by submitting his request for discharge, he was guilty of the charge(s) against him that authorized the imposition of a bad conduct or dishonorable discharge. He indicated he understood he might be discharged under conditions other than honorable and given a discharge UOTHC, he might be ineligible for many or all benefits administered by the VA, he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws. He acknowledged he might expect to encounter substantial prejudice in civilian life because of a discharge UOTHC. He elected to make a statement in his own behalf. In summary, he stated he was emotionally, physically, and mentally disturbed from taking heroin when he came home from Vietnam on leave. He saw a few friends killed in Vietnam. While he was home, he turned himself in to the hospital at Fort Sill, Oklahoma, to try to kick his heroin habit because he was having bad seizures. The colonel at the hospital told him he had to go back to the hospital in Saigon. He told the colonel he could get heroin easier in Vietnam. He disagreed with the colonel and thought it would make matters worse. He was not mentally stable. 9. On 2 June 1988, the separation authority approved his voluntary request for discharge and directed the issuance of a discharge UOTHC. 10. On 14 June 1988, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. He completed 1 year, 1 month, and 25 days of creditable active service during this period with 6,349 days (over 17 years) of lost time. His service was characterized as UOTHC. 11. There is no evidence of record showing he was diagnosed with PTSD or any behavioral or mental health condition prior to or subsequent to his discharge. 12. In a subsequent application to the Board, he provided a letter from Green County Mental Health Services, dated 2 January 1992, stating he has been in group counseling for combat Vietnam veterans with PTSD since January 1991. He demonstrates numerous PTSD symptoms. He experienced traumatic events in Vietnam. 13. On 24 October 1994, the Army Discharge Review Board denied his request for a discharge upgrade. 14. On 26 April 1995, the ABCMR denied his request for a discharge upgrade to general under honorable conditions. 15. His subsequent requests for a discharge upgrade were denied by the ABCMR and administratively closed by letter on the following dates for lack of new evidence or argument: * 6 August 1999 * 7 September 2000 * 30 August 2005 * 27 August 2014 16. He provided a 22-page VA personal hearing transcript, dated 27 October 1992, pertaining to his request for entitlement to VA treatment. In summary, his representative stated the applicant was discharged UOTHC after serving 18 years and 1 month. He served his country honorably during boot camp, advanced individual training, and 8 months in Vietnam. He saw heavy combat and was a good Soldier until events beyond his control changed his life forever. He feels the Army knew the applicant had a drug problem when he returned from Vietnam and did nothing to assist him in rehabilitation. He also feels the applicant was suffering from PTSD, for which he was been treated at Green Country Mental Health and for quite a few years prior to that. 17. He also provided an undated self-authored letter stating: a. After an extensive background check, he was inducted into the Army on 23 March 1970. After he completed boot camp and advanced individual training, he was sent to Vietnam. He was doing well with his unit, but he had some problems with a master sergeant who got him transferred. b. This is when his trouble started. He was placed in a black squad and there was a lot of racial trouble. The men in this squad thought he was placed there to squeal on them for using drugs. From the first day there, he was told they were going to kill him. It was very stressful trying to fight the Viet Cong and watch his back from his own people. He started using drugs to prove he wasn't a snitch. He was never accepted because he was the only white Soldier in a squad of black Soldiers. Taking drugs seemed the only way that he could ever make it out of Vietnam. c. His drug addiction started with smoking marijuana, but led to his heroin addiction. Prior to taking drugs, he thought he was a good Soldier. He killed nine Viet Cong soldiers and was recommended for award of the Silver Star, but he never received it. d. He did not realize how addicted he was to heroin until he returned to the States on leave from Vietnam and found out he could not get heroin. After a few days, he started to hurt from withdrawal. After being home for 10 days, he went to the hospital at Fort Sill. He was not treated for the addiction, but was put in a room to detoxify. He was given a weekend pass, but was told when he returned he was going back to Vietnam to finish his tour. e. He started to drink to ease his pain. He was arrested for drinking and smoking marijuana. While he was at Fort Riley, Kansas, he was kept in a dog pen for 2 weeks and was treated worse than most dogs. Getting drugs at Fort Riley was easier than getting them on the streets. He met a woman who was on drugs and they got married soon after they met. He was able to work at odd jobs and make enough money to pay rent and buy food and drugs. This went on until 1978 when he was struck with a pool stick, which almost killed him. He was hospitalized a long time and had a very difficult time recovering. He still has speech problems and seizures, but he is free of drugs and alcohol. f. In 1988, he started having a lot of problems with his Vietnam experiences and went to the VA for help. At this time he found out he had never been discharged. It was a surprise to him because he had worked on and off for 8 years, using his given name and social security number. He never tried to hide his identity and he had two children who carry his name. g. When he found out he was dropped from the Army rolls, he contacted his Congressman who enticed him to turn himself in, which he did at Fort Sill in 1988. h. Due to his head injury and PTSD, he has been totally disabled for many years and has also been divorced for many years. As a result of his PTSD treatment and getting off of drugs and alcohol, he has realized how significant it is to his family and himself that he get an honorable discharge. He has disgraced himself, his daughters, and his aging parents with his actions. He has never been in trouble with the law. Although he has had many mental problems, he has tried to be a good father and citizen. There were mitigating circumstances that led to his behavior. 18. An advisory opinion was rendered by the Army Review Boards Agency Psychologist, dated 14 September 2017, wherein she stated: a. A medical letter from Green County Mental Health Services (provided with his 2005 application to the Board), dated 2 January 1992, indicated the applicant had a PTSD diagnosis stemming from military service. The diagnosis was based on his report of symptoms of detachment from family and friends, significant restriction of affect, irritability and outbursts of anger, difficulty concentrating, distressing dreams, nightmares, depression, panic attacks, and intrusive thoughts. b. Although the applicant was AWOL for an extensive amount of time, and despite a lack of military medical records indicating a behavioral health diagnosis during his time in service, there is indication that he was experiencing a significant amount of stress and possibly PTSD-like symptoms following his return from Vietnam. PTSD-like symptoms and substance abuse appear to have negatively impacted his motivation to continue serving in the military and can be associated with poor judgment, impulsivity, and avoidant behaviors, such as escaping confinement and being AWOL. c. 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, drug abuse, and periods of unauthorized absences to the effects of his deployment experiences. Supporting medical documentation from the Green country Mental Health Services indicated he was diagnosed with PTSD. d. In summary, given his need for continued medical and behavioral health supportive services, it is likely that PTSD-like symptoms contributed to the misconduct that led to his separation from active duty. 19. A copy of this advisory opinion was provided to the applicant for comment and/or rebuttal. He did not respond. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for 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. c. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate. 2. 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." 3. 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. 4. 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. 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 requests an upgrade of his discharge to fully honorable. He contends he suffers from PTSD as a result of his combat exposure in Vietnam. 2. The evidence of record shows he was convicted by a special court-martial for failing to return to his unit in Vietnam for 3 months following a 14-day authorized leave period. A month later, he escaped from confinement and was convicted by a special court-martial for that offense. He was AWOL again from November 1971 to May 1988 and court-martial charges were ultimately preferred against him for that AWOL period. At the time of his discharge, he had accrued 6,349 days (over 17 years) of lost time due to AWOL and confinement. 3. His voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations. The type of discharge directed and the reason for discharge were appropriate under the policies in effect at the time. 4. Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible recharacterization of their overall service. Both the medical community and DOD now have a more 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. 5. A clinical psychologist reviewed his records and determined there is indication he was experiencing a significant amount of stress and possibly PTSD-like symptoms following his return from Vietnam. PTSD-like symptoms and substance abuse appear to have negatively impacted his motivation to continue serving in the military and can be associated with poor judgment, impulsivity, and avoidant behaviors, such as escaping confinement and being AWOL. It is likely that his PTSD-like symptoms contributed to the misconduct that led to his separation from active duty. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002840 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002840 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2