BOARD DATE: 18 July 2017 DOCKET NUMBER: AR20160004890 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __x______ ___x_____ ___x__ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 18 July 2017 DOCKET NUMBER: AR20160004890 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _________x________________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 18 July 2017 DOCKET NUMBER: AR20160004890 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 correction of his military records by upgrading his undesirable discharge to honorable. 2. The applicant states in September 1968 while his platoon was on patrol, they were attacked by artillery fire. The explosion resulted in his receiving shrapnel wounds to the right side of his body. He was medically evacuated to Japan and then on to Fort Hood, Texas. During his service, he also lost buddies who were killed in action. He believes his experiences caused him post-traumatic stress disorder (PTSD) which led to his undesirable discharge. He received the Purple Heart and two bronze stars for his service in Vietnam. 3. The applicant provides: * Standard form 89 (Report of Medical History), dated 22 April 1969 * Standard Form 88 (Report of Medical Examination), dated 22 April 1969 * Information Paper, Senator Blumenthal: New policy will help veterans who have PTSD, dated 8 November 2014 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. On 28 July 1966, the applicant enlisted in the Regular Army. He was trained as an infantry indirect fire crewman. He was subsequently assigned for duty at Fort Hood, Texas. 3. On 6 April 1967, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for violating the 60-mile regular weekday pass limitation. 4. On 4 May 1967, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for being absent from his unit for approximately 2 hours on the morning of 29 April 1967. 5. Special Court-Martial Order Number 77, Fort Hood, Texas, dated 5 August 1967, announced the applicant's conviction for violating Article 86, UCMJ, by being absent without proper authority from 16 June to 9 July 1967. 6. On 19 September 1967, the applicant accepted NJP for failure to go to his appointed place of duty at the prescribed time on 18 September 1967. 7. On or about 4 October 1967, the applicant was reassigned to Vietnam with his unit. 8. Special Court-Martial Order Number 1, 198th Light Infantry Brigade, dated 26 January 1968, announced the applicant's conviction for violating Article 92, UCMJ, by failing to obey the off-limits order for the villages around Chu Lai and by violating Article 113, UCMJ, for leaving his guard post before being properly relieved. 9. On or about 7 September 1968, the applicant was wounded in action, receiving multiple fragment wounds to his right leg and right foot. 10. On 21 September 1968, the applicant was medically evacuated from Vietnam. 11. On or about 23 September 1968, the applicant was assigned for duty at Fort Hood, Texas, in a patient status. 12. On 12 November 1968, the applicant accepted NJP under the provisions of Article 15, UCMJ, for being absent without proper authority from the hospital during the period 0600 hours 6  November through 0600 hours 12 November 1968. 13. On 5 March 1969, the applicant accepted summarized NJP under the provisions of Article 15, UCMJ, for failure to go to his appointed place of duty at the prescribed time. 14. Summary Court-Martial Order Number 29, Fort Hood, Texas, dated 25 March 1969, announced the applicant's conviction for violating Article 134, UCMJ, by breaking restriction (two specifications). 15. Fort Hood Form 195 (Certificate – Brief Clinical Abstract), dated 28 March 1969, outlines the applicant's psychiatric evaluation as follows: a. He was a 20-year old enlisted Soldier with 30 months of total service who was referred to the mental health clinic by his unit commander for psychiatric clearance under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability). The applicant was convicted by two special courts-martial. He also has a history of accepting NJP under the provisions of Article 15, UCMJ, most recently for being absent and for failing to repair. His unit commander stated he could not perform his duties, could not get along with fellow Soldiers, and required constant supervision. The applicant showed no evidence of any neurosis or psychosis. b. There were no disqualifying mental defects sufficient to warrant disposition through medical channels. c. The applicant was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings. 16. DA Form 2496 (Disposition Form), Medical Statement, dated 24 April 1969, stated the applicant was physically and mentally fit for duty without profile limitations. He was responsible for his actions and able to understand and participate in board proceedings. 17. On 25 April 1969, the applicant's unit commander initiated separation under the provisions of Army Regulation 635-212 for unfitness. The commander stated the applicant did not display any potential for retention or rehabilitation in a military setting and separation was warranted. 18. On 25 April 1969, the applicant received legal counseling and waived consideration of his case by a board of officers, waived a personal appearance, waived representation by counsel, and declined to submit a statement in his own behalf. 19. On 10 May 1969, the appropriate authority approved the separation action and directed issuance of DD Form 258A (Undesirable Discharge Certificate). On 23 May 1969, the applicant was discharged accordingly. He completed 2 years, 6 months, and 10 days of active duty service. In addition to his marksmanship qualification badges, he was awarded or authorized the Purple Heart, Vietnam Service Medal with two bronze service stars, and Republic of Vietnam Campaign Medal with Device (1960). 20. There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 21. In the processing of this case, a staff medical advisory opinion was obtained wherein the psychologist made the following comments and conclusions based on the available personnel and medical records: a. The applicant had a pattern of misconduct that existed prior to his service in Vietnam and continued throughout his military service. b. The applicant did not provide a diagnosis of PTSD. He contends that his PTSD was undiagnosed based on his service in Vietnam. c. The applicant's service medical records show his separation medical examination revealed he was depressed with worry that was connected to his military service. d. The applicant's commander requested a psychiatric evaluation which failed to show any neurosis or psychosis. The totality of the evidence is that the applicant did not, at the time of his discharge, have symptoms consistent with a diagnosable psychiatric condition and was not expressing symptoms consistent with having PTSD. e. The applicant met medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness). f. The applicant's medical condition was considered at the time of his discharge. g. A review of available documentation did not reveal evidence of mental health considerations that are sufficient to warrant changing the characterization of his discharge. A nexus between the applicant's misconduct and his mental health was not discovered. 22. On 19 December 2016, a copy of the advisory opinion was sent to the applicant for his information and opportunity to respond. No response was received. REFERENCES: 1. Army Regulation 635-212, in effect at the time, established policy and prescribed procedures and guidance for eliminating enlisted personnel who were found to be unfit or unsuitable for further military service. Members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. An individual separated by reason of unfitness would be furnished an Undesirable Discharge Certificate, except than an Honorable or General Discharge Certificate could be awarded if the individual being discharged had been awarded a personal decoration or if warranted by the particular circumstances in a given case. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. Unless otherwise ineligible, a Soldier may receive an honorable discharge if he or she has received a personal decoration during his or her current enlistment, period of obligated service, or any extensions thereof. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. 3. The Diagnostic and Statistical Manual of Mental Disorders (DSM), chapter 7, addresses trauma and stress or related disorders. The DSM is published by the American Psychiatric Association (APA) and provides standard criteria and common language for classification of mental disorders. 4. In 1980, the APA added PTSD to the third edition of its DSM nosologic classification scheme. Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice. From a historical perspective, the significant change ushered in by the PTSD concept was the stipulation that the etiological agent was outside the individual (i.e., a traumatic event) rather than an inherent individual weakness (i.e., a traumatic neurosis). The key to understanding the scientific basis and clinical expression of PTSD is the concept of "trauma." 5. PTSD is unique among psychiatric diagnoses because of the great importance placed upon the etiological agent, the traumatic stressor. In fact, one cannot make a PTSD diagnosis unless the patient has actually met the "stressor criterion," which means that he or she has been exposed to an event that is considered traumatic. Clinical experience with the PTSD diagnosis has shown, however, that there are individual differences regarding the capacity to cope with catastrophic stress. Therefore, while most people exposed to traumatic events do not develop PTSD, others go on to develop the full-blown syndrome. Such observations have prompted the recognition that trauma, like pain, is not an external phenomenon that can be completely objectified. Like pain, the traumatic experience is filtered through cognitive and emotional processes before it can be appraised as an extreme threat. Because of individual differences in this appraisal process, different people appear to have different trauma thresholds, some more protected from and some more vulnerable to developing clinical symptoms after exposure to extremely stressful situations. 6. The fifth edition of the DSM was released in May 2013. This revision includes changes to the diagnostic criteria for PTSD and acute stress disorder. The PTSD diagnostic criteria were revised to take into account things that have been learned from scientific research and clinical experience. The revised diagnostic criteria for PTSD include a history of exposure to a traumatic event that meets specific stipulations and symptoms from each of four symptom clusters: intrusion, avoidance, negative alterations in cognitions and mood, and alterations in arousal and reactivity. The sixth criterion concerns duration of symptoms, the seventh criterion assesses functioning, and the eighth criterion clarifies symptoms as not attributable to a substance or co-occurring medical condition. a. Criterion A – Stressor: The person was exposed to: death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence, as follows (one required): (1) direct exposure; (2) witnessing, in person; (3) indirectly, by learning that a close relative or close friend was exposed to trauma. If the event involved actual or threatened death, it must have been violent or accidental; or (4) repeated or extreme indirect exposure to aversive details of the event(s), usually in the course of professional duties (e.g., first responders collecting body parts, professionals repeatedly exposed to details of child abuse). This does not include indirect non-professional exposure through electronic media, television, movies, or pictures. b. Criterion B – Intrusion Symptoms: The traumatic event is persistently re-experienced in the following way(s) (one required): (1) recurrent, involuntary, and intrusive memories; (2) traumatic nightmares; (3) dissociative reactions (e.g., flashbacks) which may occur on a continuum from brief episodes to complete loss of consciousness; (4) intense or prolonged distress after exposure to traumatic reminders; or (5) marked physiologic reactivity after exposure to trauma-related stimuli. c. Criterion C – Avoidance: Persistent effortful avoidance of distressing trauma-related stimuli after the event (one required): (1) trauma-related thoughts or feelings or (2) trauma-related external reminders (e.g., people, places, conversations, activities, objects, or situations). d. Criterion D – Negative Alterations in Cognitions and Mood: Negative alterations in cognitions and mood that began or worsened after the traumatic event (two required): (1) inability to recall key features of the traumatic event (usually dissociative amnesia; not due to head injury, alcohol, or drugs); (2) persistent (and often distorted) negative beliefs and expectations about oneself or the world (e.g., "I am bad," "The world is completely dangerous"); (3) persistent distorted blame of self or others for causing the traumatic event or for resulting consequences; (4) persistent negative trauma-related emotions (e.g., fear, horror, anger, guilt, or shame); (5) markedly diminished interest in (pre-traumatic) significant activities, feeling alienated from others (e.g., detachment or estrangement); and (6) constricted affect, persistent inability to experience positive emotions. e. Criterion E – Alterations in Arousal and Reactivity: Trauma-related alterations in arousal and reactivity that began or worsened after the traumatic event (two required): (1) irritable or aggressive behavior, (2) self-destructive or reckless behavior, (3) hypervigilance, (4) exaggerated startle response, (5) problems in concentration, and (6) sleep disturbance. f. Criterion F – Duration: Persistence of symptoms (in Criteria B, C, D, and E) for more than 1 month. g. Criterion G – Functional Significance: Significant symptom-related distress or functional impairment (e.g., social, occupational). h. Criterion H – Exclusion: Disturbance is not due to medication, substance use, or other illness. 7. As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis, and treatment of PTSD, the Department of Defense (DOD) acknowledges that some Soldiers who were administratively discharged UOTHC may have had an undiagnosed condition of PTSD at the time of their discharge. It is also acknowledged that in some cases this undiagnosed condition of PTSD may have been a mitigating factor in the Soldiers' misconduct which served as a catalyst for their discharge. Research has also shown that misconduct stemming from PTSD is typically based upon a spur of the moment decision resulting from a temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues for an extended period of time. 8. On 3 September 2014 in view of the foregoing information, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicants' service. 9. BCM/NRs are not courts, nor are they investigative agencies. Therefore, the determinations will be based upon a thorough review of the available military records and the evidence provided by each applicant on a case-by-case basis. When determining if PTSD was the causative factor for an applicant's misconduct and whether an upgrade is warranted, the following factors must be carefully considered: * is it reasonable to determine that PTSD or PTSD-related conditions existed at the time of discharge? * does the applicant's record contain documentation of the occurrence of a traumatic event during the period of service? * does the applicant's military record contain documentation of a diagnosis of PTSD or PTSD-related symptoms? * did the applicant provide documentation of a diagnosis of PTSD or PTSD-related symptoms rendered by a competent mental health professional representing a civilian healthcare provider? * was the applicant's condition determined to have existed prior to military service? * was the applicant's condition determined to be incurred during or aggravated by military service? * do mitigating factors exist in the applicant's case? * did the applicant have a history of misconduct prior to the occurrence of the traumatic event? * was the applicant's misconduct premeditated? * how serious was the misconduct? 10. Although DOD acknowledges that some Soldiers who were administratively discharged UOTHC may have had an undiagnosed condition of PTSD at the time of their discharge, it is presumed that they were properly discharged based upon the evidence that was available at the time. Conditions documented in the records that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which PTSD or PTSD-related conditions may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the UOTHC characterization of service. BCM/NRs will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of UOTHC. Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. BCM/NRs will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. DISCUSSION: 1. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights. The type of discharge directed and the reason therefore were appropriate considering all the facts of the case. 2. At the time of the applicant's 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. 3. Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible re-characterization of their overall service. 4. The evidence of record clearly shows the applicant's misconduct began soon after his first permanent duty station and well before his assignment to Vietnam. His pattern of misconduct continued throughout his service, indicating that it was probably not the result of any particular set of circumstances or traumatic event. It is acknowledged the applicant is a recipient of the Purple Heart. While his conduct post wounding could be attributed to combat action and its potential behavioral health implications, the medical advisory opinion states there is no medical explanation for his misconduct prior to his wounding in action. 5. The Secretarial guidance clearly articulates that Boards must weigh possible causative factors for misconduct provided an applicant has a diagnosis of PTSD by a competent mental health professional representing a civilian healthcare provider. In this case, the applicant only provided his personal statement that based on his combat experiences, he has PTSD. As stated in the medical advisory opinion, without medical evidence from a civilian healthcare provider supporting his personal statement, there is insufficient mitigating evidence to show a potential undiagnosed behavioral health condition such as PTSD contributed to his repeated acts of misconduct. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004890 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004890 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2