IN THE CASE OF: BOARD DATE: 16 March 2017 DOCKET NUMBER: AR20160004578 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 IN THE CASE OF: BOARD DATE: 16 March 2017 DOCKET NUMBER: AR20160004578 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR200039126, dated 31 August 2000. 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 his character of 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. IN THE CASE OF: BOARD DATE: 16 March 2017 DOCKET NUMBER: AR20160004578 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 for an upgrade of his discharge under other than honorable conditions (UOTHC) to general under honorable conditions. 2. The applicant states he suffered from chronic post-traumatic stress disorder (PTSD) and major depression after he returned from Thailand and he self-medicated with alcohol. 3. The applicant provides: * Army Review Boards Agency two-page website extract * Goldsboro Psychiatric Clinic, Psychiatric Associates, letter, dated 21 July 2015 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 AR2000039126 on 31 August 2000. 2. The applicant provided new arguments and evidence of his PTSD not previously considered by the Board that warrant consideration at this time. 3. The applicant enlisted in the Regular Army on 2 February 1966. 4. He served in Thailand during the period 18 August 1966 to 14 August 1967. 5. He accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, as follows: * on 13 August 1966, for failing to obey a lawful order * on 10 February 1967, for being drunk and disorderly and unlawfully striking another Soldier on the face with his feet * on 7 August 1967, for failing to go to his appointed place of duty at the prescribed time on two occasions * on 2 October 1967, for being absent without leave (AWOL) on or about 29 September 1967 until on or about 2 October 1967 * on 9 October 1967, for being disorderly in the Noncommissioned Officers' Club and resisting apprehension by military police * on 4 December 1967, for wrongfully possessing a certain instrument purporting to be a military pass with intent to deceive * on 15 January 1968, for breaking restriction * on 24 June 1968, for willfully breaking military property and being disorderly * on 10 July 1968, for failing to go to his appointed place of duty at the prescribed time on three occasions 6. On 16 September 1968, his commander notified him of his intent to initiate separation action against him under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) due to unfitness and his established pattern of shirking. He acknowledged receipt of the notification on the same date. 7. His DA Form 1049 (Personnel Action), dated 18 September 1968, shows he was recommended for discharge due to unfitness and an established pattern of shirking under the provisions of Army Regulation 635-212, paragraph 6a(4). His commander cited numerous attempts to rehabilitate him and included counseling and job reassignments. Further rehabilitative efforts were considered useless and his conduct and efficiency ratings were unsatisfactory. This form also shows: * he had just returned from an AWOL status, a period of 12 days, for which no action had been taken * he was AWOL on 14 and 15 September 1968 8. On 18 September 1968, he underwent a psychiatric evaluation for consideration for separation under Army Regulation 635-212. a.  The psychiatrist found: * he had no psychiatric condition which warranted disposition through medical channels * he was mentally responsible to distinguish right from wrong and adhere to the right * he had the mental capacity to understand and participate in board proceedings * he had the necessary potential for performance of satisfactory duty, but he did not have the desired motivation to control his behavior to stay out of administrative difficulties b.  The psychiatrist recommended his return to duty and stated further command guidance, counseling, discipline, or reassignment should be attempted if deemed necessary. 9. On 9 October 1968, he was advised of the pending action against him, the seriousness of the offense, and the effects of discharge UOTHC. 10. On 21 October 1969 after consulting with counsel, he acknowledged receipt of his separation notification. He waived consideration of his case before a board of officers and a personal appearance before a board of officers, he declined to submit statements in his own behalf, and he waived representation by counsel. He also acknowledged: * he could expect to encounter substantial prejudice in civilian life * he could be deprived of his rights and benefits as a veteran under Federal and State laws 11. Headquarters, School Brigade (Provisional), U.S. Army Aviation School Element, Special Court-Martial Order Number 77, dated 25 October 1968, shows that while serving in the rank/grade of private/E-1, he was tried and found guilty of being AWOL from on or about 1 September 1968 until on or about 13 September 1968 and from on or about 14 September 1968 until on or about 16 September 1968. He was sentenced to 3 months at hard labor and forfeiture of $97.00 per month for 6 months. 12. On 31 October 1969, the separation authority approved his separation under the provisions of Army Regulation 635-212, paragraph 7c(2). He directed the applicant's reduction to the lowest enlisted grade and issuance of an Undesirable Discharge Certificate. 13. On 1 November 1968, he was discharged accordingly. His DD Form 214 shows he completed 2 years, 8 months, and 13 days of creditable active military service and he had 17 days of lost time. His service is characterized as UOTHC. 14. On 13 April 1979, the Army Discharge Review Board denied his request for an upgrade of his discharge. 15. On 31 August 2000, the ABCMR denied his request for an upgrade of his discharge. 16. On 21 November 2002, the ABCMR denied reconsideration of his request for an upgrade of his discharge. 17. On 9 March 2006, the ABCMR administratively closed his request for reconsideration of his earlier request. 18. He provided a letter from his psychiatrist, Dr. E____ W. H____, Goldsboro Psychiatric Clinic, Psychiatric Associates, Goldsboro, NC, dated 21 July 2015, in which he states he psychiatrically examined the applicant on 6 July 2015 and diagnosed him with, in part, chronic PTSD and chronic major depression. He further stated: a.  The applicant served in Thailand in support of Vietnam from 1966 to 1967. He served with the motor pool and delivered supplies to Soldiers in Vietnam. He was afraid for his life each time he had to deliver ammunition. b.  The applicant began having nightmares in 1969 and continues to have them at least two times per week, waking in a panic with sweats lasting 15-20 minutes. He has flashbacks two times per week, lasting at least 10-15 minutes. He averages 4 hours of sleep per night. c.  The applicant has intrusive thoughts, startles easily, is hypervigilant and cannot tolerate anyone behind him. His recent memory is severe impaired and his working memory is 80-percent impaired. Anger, sadness, and fear comes upon him without his understanding why 60 percent of the time, indicating that his prefrontal cortex is dysfunctional. d.  The applicant hears his name called, hears cars drive up at his residence, and hears noises in his house one to two times per week. He also sees shadows moving out of the corners of his eyes one to two times per week. All of his hallucinations and illusions occur when no one or nothing is there. e.  The applicant feels depressed all of the time with low energy and little interest in things. He has crying spells almost daily and he angers and agitates easily. f.  The applicant is moderately compromised in his abilities to sustain social relationships and he is also moderately compromised in his ability to sustain work relationships because of his service-connected PTSD. 19. The applicant provided a two-paged website extract from the Army Review Boards Agency regarding discharge upgrades and PTSD. 20. On 2 December 2016, an Army Review Boards Agency Psychologist provided an advisory opinion in which he stated: a.  The applicant met medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, and provisions set forth in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the his era of service. b.  The applicant's medical conditions were duly considered during his separation processing. c.  A review of available documentation did reveal evidence of a medical disability or conditions which would support a change to the character or reason for his discharge. A causal nexus between the applicant's behavioral health diagnoses and his misconduct was discovered. 21. On 5 December 2016, a copy of the advisory opinion was sent to the applicant for review and for an opportunity to provide a response. He did not respond by the suspense date. REFERENCES: 1. Army Regulation 635-212, in effect at the time, provided guidance for eliminating enlisted personnel found unfit or unsuitable for further military service. a.  Paragraph 6a(4) stated an individual was subject to separation for an established pattern of shirking. b.  Paragraph 7c(2) stated the general court-martial convening authority could waive the requirements for counseling and rehabilitation when he determined that further duty of the individual would create a hazard to the military mission or to the individual. 2. Army Regulation 635-200 prescribes policies, standards, and procedures providing for the orderly administrative separation of active duty enlisted Soldiers. 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 the classification of mental disorders. In 1980, the APA added PTSD to the third edition of its DSM nosologic classification scheme. Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice. From a historical perspective, the significant change ushered in by the PTSD concept was the stipulation that the etiological agent was outside the individual (i.e., a traumatic event) rather than an inherent individual weakness (i.e., a traumatic neurosis). The key to understanding the scientific basis and clinical expression of PTSD is the concept of "trauma." 4. PTSD is unique among psychiatric diagnoses because of the great importance placed upon the etiological agent, the traumatic stressor. In fact, one cannot make a PTSD diagnosis unless the patient has actually met the "stressor criterion," which means that he or she has been exposed to an event that is considered traumatic. Clinical experience with the PTSD diagnosis has shown, however, that there are individual differences regarding the capacity to cope with catastrophic stress. Therefore, while most people exposed to traumatic events do not develop PTSD, others go on to develop the full-blown syndrome. Such observations have prompted the recognition that trauma, like pain, is not an external phenomenon that can be completely objectified. Like pain, the traumatic experience is filtered through cognitive and emotional processes before it can be appraised as an extreme threat. Because of individual differences in this appraisal process, different people appear to have different trauma thresholds, some more protected from and some more vulnerable to developing clinical symptoms after exposure to extremely stressful situations. 5. 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. 6. On 3 September 2014 in view of the foregoing information, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service 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 evidence of record shows he had nine instances of nonjudicial punishment and a special court-martial conviction. He was afforded multiple opportunities for rehabilitation, to no avail. 2. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. The type of discharge directed and the reasons for separation were appropriate considering the available facts at the time. 3. He provided evidence showing he was diagnosed with PTSD by a clinical psychiatrist in 2015. 4. At the time of his discharge, PTSD was largely 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. 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. 6. An Army Review Boards Agency psychologist opined a causal nexus between the applicant's behavioral health diagnoses and his misconduct existed. Accepting this conclusion would be a basis for relief. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004578 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004578 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2