BOARD DATE: 14 September 2017 DOCKET NUMBER: AR20160002883 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: 14 September 2017 DOCKET NUMBER: AR20160002883 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the 16 April 1971 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show: * Character of Service: "General, Under Honorable Conditions" * Grade, Rate or Rank: "PV2" * Pay Grade: "E-2" * Date of Rank: "12 August 1970" ___________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: AR20160002883 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 character of service from under other than honorable conditions (UOTHC) to under honorable conditions (general). 2. He states he is resubmitting his request for upgrade pursuant to the Memorandum for Secretaries of the Military Department, which provided for the Military Boards for Correction of Military Records to consider discharge upgrades based on veterans claiming post-traumatic stress disorder (PTSD). He adds he is convinced his PTSD had a direct bearing on his conduct while on active duty. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests the applicant's discharge be upgraded. 2. Counsel states, in effect, that the applicant's discharge is being resubmitted in accordance with Secretary of Defense Hagel's guidance to the Secretaries of the Military Departments to review applications for former service members who have been diagnosed with PTSD. He states the applicant was a combat veteran familiar with the horrors of war. He observed his fellow Soldiers using drugs and knowing the potential that activity had on the conduct of combat operations, he turned them in. Unfortunately, the word got back to the offending Soldiers and they threated his life. The applicant, fearing for his life, reenlisted for a different military occupational specialty (MOS) only to complete training and receive orders to return to the same unit in Vietnam. 3. Counsel provides: * Department of Veterans Affairs (VA) transcript, dated 12 February 2010 * Army Board for Correction of Military Records (ABCMR) Record of Proceedings, dated 1 April 2010 * Counsel Statements, dated 8 January 2016 and 25 May 2017 * Medical Record Documents CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army (RA) on 30 June 1969 and he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman). 2. He was honorably discharged for immediate reenlistment on 19 March 1970 and subsequently reenlisted on 20 March 1970. He reenlisted for Army Career Group 71 (Administration). 3. He served in the Republic of Vietnam from 11 January 1970 to 10 January 1971. 4. On 12 August 1970, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave from on or about 8 July to on or about 31 July 1970. His punishment consisted of reduction from private first class (PFC)/E-3 to private (PV2)/E-2. 5. The applicant's record is void of any documentation to show he was subsequently promoted. 6. Item 44 (Time Lost) of his DA Form 20 (Enlisted Qualification Record) shows: * 32 days from 30 April through 31 May 1970 * 23 days from 8 July through 30 July 1970 * 135 days from 1 September 1970 through 13 January 1971 7. On 1 February 1971, charges were preferred against him for being AWOL from his unit from on or about 1 September 1970 to on or about 14 January 1971. 8. On 1 March 1971, he consulted with counsel and he voluntarily requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial. a. In his request for discharge, he indicated he had been advised of the implications attached to his request and understood that if his request was accepted, his service could be characterized as under other than honorable conditions and he could be furnished an undesirable discharge. b. He acknowledged he understood he might encounter substantial prejudice in civilian life and he might be ineligible for many or all State, Federal, and/or Army benefits if he received an undesirable discharge. He elected not to submit a statement in his behalf. 9. On 29 March 1971, the applicant’s immediate and intermediate commanders recommended approval of the applicant’s request for separation and the issuance of an undesirable discharge. 10. The applicant was discharged on 16 April 1971 under the provisions of chapter 10, AR 635-200, with service characterized as UOTHC. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 6 months and 17 days of net active service this period with 190 days of lost time. His DD Form 214 also shows his rank/pay grade as private (PV1)/E-1 with an effective date of pay grade listed as 9 April 1971. 11. The applicant applied to the Department of Defense, Discharge Review Board (Special), for an upgrade of his discharge. On 21 March 1978, the board denied his case citing that he was properly discharged. 12. On 23 June 2017, the ABCMR obtained an advisory from a Clinical Psychologist, Army Review Boards Agency (ARBA). He reiterates the applicant's court-martial charges that led to his request for discharge under the provisions of AR 635-200 chapter 10 and his subsequent UOTHC discharge. He states: a. In the applicant's previous application for an upgrade, he stated he made numerous complaints about his experiences in Vietnam, including exposure to other Soldiers using drugs. He denied use himself, but claimed he became a target of drug-using Soldiers after he informed on them to his command, implying the drug-using Soldiers insinuated they would shoot him dead if they were all in combat together. He claimed his command had led him to believe that reenlisting for a different unit and/or reclassifying was the only way to be reassigned to a different unit. b. He stated he reenlisted, but he was scheduled to be returned to Vietnam to his same unit, so he began a series of AWOLs. The last AWOL from 20 September 1970 to 13 January 1971 led to him being dropped from the rolls. He accepted a UOTHC discharge to avoid court-martial. He contends in addition to the threatening milieu within his unit, he also had trauma of being ordered to retrieve the severed foot of a peer. Accounts of what caused this peer’s injury seemed to vary. In one account a mortar explosion is mentioned, and in another, he described the peer as having had his foot blown off when he kicked a booby trap. c. Records available through the Joint Legacy Viewer (JLV) show he has a VA diagnosis of chronic PTSD, a diagnosis placed on his problem list on 26 August 2008, more than quarter of a century after his service. He also had a VA diagnosis of depression, and he is suffering from ischemic heart disease. His application also included a psychological evaluation on 12 February 2008 by a civilian clinical psychologist who diagnosed him with PTSD and alcoholism. The testing did provide some support for a PTSD diagnosis, although his review of the provided psychological testing was also highly consistent with fake bad or symptom exaggeration, and a possible invalid test. A diagnosis awards compensation based on this profile and the diagnoses by the civilian clinical psychologist should be viewed with extreme caution. d. The civilian clinical psychologist's report is marred by his failure to address the possibility of symptoms exaggeration. Whatever the truth about the accuracy of the applicant’s diagnosis, he does have a "chronic PTSD diagnosis" in his records. His AWOLs are routinely treated as evidence of a PTSD symptom. Further, the applicant was expressing great fear of returning to his unit, another possible symptoms of PTSD. In conformance with the Secretary of Defense’s guidance to be liberal, AWOLs are mitigated by his alleged PTSD, as is routine for Vietnam Era veterans with a PTSD diagnosis in their record. e. The applicant’s medical records do not at the time of his discharge reasonably support him having had a boardable medical condition for that period. He did meet mental-health standards in AR 40-501 (Standards of Medical Fitness) and AR 635-40 (Personnel Separation Physical Evaluation for Retention, Retirement, or Separation). However, there is inadequate evidence that he did not meet the mental-health standards. The available case material did support the existence, albeit weak, of a mitigating mental health condition at the time of his misconduct, in virtue of the liberal guidance policy. f. Therefore, based on available behavioral-health evidence there is sufficient evidence to mitigate the applicant’s behavior based on the liberal guidance policy’s presumption of mitigation for misconduct of the kind committed by the applicant when there is a Secretary-mandated presumption that PTSD was present. g. In conclusion, a review of the available documentation did discover evidence of a mental health considerations that bears on the character of the discharge in this case. A mitigating nexus between the applicant’s misconduct and his presumed mental health, albeit based on the Secretary’s policy of liberal guidance, was discovered. 13. On 27 June 2017, the advisory opinion was forwarded to the applicant for his acknowledgement and/or response. No response was received. REFERENCES: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of the version in effect at the time provided that a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good of the service in lieu of a trial. The regulation required that there have been no element of coercion involved in the submission of such a request and the applicant was provided an opportunity to consult with counsel. The Soldier was required to sign the request indicating he understood that he could receive service characterized as UOTHC, the adverse nature of such a discharge, and the possible consequences thereof. The regulation required that the request be forwarded through channels to the general court-martial convening authority. An undesirable discharge would normally be furnished an individual who was discharged for the good of the service. b. 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. 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." 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 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. 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 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. 6. 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. 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. 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 Discharge Review Boards (DRBs) and Board for Correction of Military/Naval Records (BCM/NRs) when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including Post Traumatic Stress Disorder (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 to 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. 9. 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. DISCUSSION: 1. The evidence of record shows the applicant enlisted in the RA on 30 June 1969 and performed duties as an infantryman. He served in Vietnam from 11 January 1970 to 10 January 1971. 2. The evidence of record further shows court-martial charges were preferred against the applicant on 1 February 1971 for being AWOL from 1 September 1970 to 14 January 1971. He voluntarily requested separation for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial. 3. The regulations governing the Board's operation require that the discharge process be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption. In the absence of evidence to the contrary, the discharge process, the type of discharge, and the characterization of service directed at the time are presumed to have been appropriate. 4. At the time of the applicant's discharge, PTSD was unrecognized by the medical community and DOD. However, 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 civilian clinical psychologist has diagnosed the applicant with PTSD. A clinical psychologist from ARBA states that based on a review of the available documentation, there is evidence of mental health considerations that bear on the character of the applicant's discharge in this case. He further states there is a mitigating nexus between the applicant’s misconduct and his mental health condition which led to his UOTHC discharge from Army. 6. Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event or experiences warrant careful consideration for the possible recharacterization of their overall service. 7. A recommendation to grant relief by upgrading the character of his service to general under honorable conditions would also entail restoration of his rank/grade to PV2/E-2 with a date of rank of 12 August 1970. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002883 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002883 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2