SAMR-RB 20 July 2017 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for, AR20160005205 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 30 May 2017, in which the Board members unanimously recommended denial of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as general, under honorable conditions. I direct no further correction be made to the record of the individual concerned. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 20 November 2017. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: Encl Deputy Assistant Secretary of the Army (Review Boards) BOARD DATE: 30 May 2017 DOCKET NUMBER: AR20160005205 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: 30 May 2017 DOCKET NUMBER: AR20160005205 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR2002083626 on 5 June 2003. ____________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: 30 May 2017 DOCKET NUMBER: AR20160005205 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 under other than honorable conditions discharge. 2. The applicant states he was suffering from post-traumatic stress disorder (PTSD) after returning from Vietnam and he smoked a little marijuana. 3. The applicant provides his 1971 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a 2016 civilian medical summary. 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 AR2002083626 on 5 June 2003. 2. Based on the applicant’s claim that he had PTSD, his application is being reviewed under the 2014 Secretary of Defense's guidance to Military Boards for Correction of Military (BCMR)/Naval Records. 3. The applicant enlisted in the Regular Army on 29 August 1969 and he held military occupational specialty 64C (Motor Transport Operator). He served in Vietnam from 16 February to 30 December 1970. 4. Following his return from Vietnam, he was reassigned to the U.S. Army Combat Developments Command Experimentation Command at Fort Ord, CA. 5. His record shows he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for the below offenses. * 1 July 1971, wrongfully appropriating a military truck; his punishment consisted of a suspended reduction to E-3, forfeiture of pay, and extra duty and restriction * 8 July 1971, failing to go at the time prescribed to his appointed place of duty * 30 July 1971, twice failing to go at the time prescribed to his appointed place of duty; his punishment consisted of a reduction to E-1 and forfeiture of pay * 25 August 1971, failing to go at the time prescribed to his appointed place of duty 6. On 1 September 1971, the applicant underwent a psychological evaluation. The psychologist stated although the applicant had successfully completed his military obligation until his tour of duty in Vietnam, his behavior had been deteriorating ever since his return from Vietnam. While in Vietnam, he used drugs of all types including opium and heroin. Also, during that period of time his parents had been divorced. Thus, the drug usage was the only way he coped with his stress. Since his return from Vietnam, he has been stationed at Hunter Liggett Military Reservation (HLMR) and Fort Ord. During his 6 months stay at HLMR he had received four Articles 15. Also, he had been continuing his drug usage as the only means of adapting to the military environment. As a rehabilitative measure, he was sent to Fort Ord. By his receiving two additional Articles 15 and further use of drugs, he has shown that he is unable to cope with the rigors of the military. It was felt that he should be administratively discharged under character and behavior disorders as set forth by the provisions of Army Regulation (AR) 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability). 7. On 1 October 1971, the applicant's immediate commander notified him that he was initiating action to discharge him under the provisions of AR 635-212 for unfitness. The commander recommended an undesirable discharge and advised the applicant of his right to: * consult with consulting counsel * have his case considered by a board of officers * appear in person before a board of officers * submit statements in his own behalf * be represented by counsel * waive any of these rights * withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge 8. The applicant acknowledged that he had been advised by counsel of the basis for the contemplated separation action against him under the provisions of AR 635-212 for unfitness. He waived consideration of his case by a board of officers, personal appearance before a board of officers, and/or representation by counsel. He did not submit any statements in his own behalf. He further acknowledged that he might expect to encounter substantial prejudice in civilian life if a general or an under other than honorable conditions discharge was issued to him. 9. The immediate commander recommended him for discharge under the provisions of paragraph 6a, AR 635-212. The specific reason mentioned by the commander was the applicant's frequent and deliberate incidents of misconduct of a discreditable nature with both civilian and military authorities, including misappropriation, being drunk on duty (drug intoxication), shirking, and civil arrest for possession of marijuana on 15 February 1971. The commander indicated he was counseled on numerous occasions by several noncommissioned and commissioned officers. 10. On 7 October 1971, his intermediate commander recommended approval of the discharge. He stated the applicant accumulated seven (7) Articles 15 since 1 July 1971. Despite efforts to rehabilitate and counsel him, he insisted on continuing his misconduct. He had a reputation of drug usage and he freely admitted his arrest by San Jose civil authorities for drug possession. His lack of self-discipline and inability to respond to efforts toward motivation indicated he should not be retained in the Army. 11. On 14 October 1971, the senior commander echoed the same sentiments and recommended issuance of a Undesirable Discharge Certificate. He detailed the applicant's Article 15 history and opined that despite efforts to rehabilitate the applicant, he did not respond positively. 12. On 21 October 1971, the separation authority waived further rehabilitative requirements, approved the recommendation for discharge under the provisions of paragraph 6(a)(1) of AR 635-212, and directed he be furnished an under other than honorable conditions characterization of service. On 28 October 1971, the applicant was accordingly discharged. 13. His DD Form 214 shows he was discharged in accordance with AR 635-212 by reason of unfitness (Separation Program Number 28B). He completed 2 years, 1 month, and 26 days of net active service that was characterized as under other than honorable conditions. He also had 4 days of lost time. 14. There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations. 15. On 5 June 2003, in response to his contention that he was suffering from PTSD, the Board reviewed his discharge but found it appropriate and in accordance with law and regulation. The Board denied his request for an upgrade. 16. The applicant's case was forwarded to the Army Review Boards Agency psychologist and medical advisor for review. As a result, the psychologist/ medical advisor rendered an advisory opinion on 7 December 2016. a. He was asked to provide an opinion to determine if medical condition(s) were not duly considered during separation processing. Specifically – * Do available records reasonably support PTSD, or other boardable behavioral health conditions, existed at the time of the applicant’s military service? * Did these conditions fail medical retention standards in accordance with AR 40-501 (Standards of Medical Fitness) warranting a separation through medical channels? * Is this condition or conditions a mitigating factor in the misconduct that resulted in his discharge from the military? * In accordance with Title 10, U.S. Code, Section 1177, was the required medical exam, which includes a behavioral health component, conducted prior to administrative separation? b. The sources of review included a limited review of Department of Veterans Affairs (VA) records through the Joint Legacy Viewer (JLV). The applicant supplied limited medical evidence with his application. The psychologist restated the applicant’s military history including awards. He received the Army Commendation Medal for meritorious service in Vietnam. His performance as a Soldier deteriorated after his tour in Vietnam, and, per a statement by Captain (CPT) JFB, he began to press to be administratively discharged. He had behavioral problems in his post-Vietnam unit: absence without leave, multiple failures to report for duty, being drunk on duty, and a civilian drug arrest and conviction for marijuana possession. c. The applicant does provide evidence with this application that he has PTSD in the form of a problem list from his primary care physician that includes anxiety, depression, insomnia, and PTSD as current problems. No information concerning the examination or examinations that led to these diagnoses is included. There is a record of a medical examination of 13 September 1971 in his files. In it, the physician noted the applicant described his health as good, adding that his health was “unchanged in the last two years.” The applicant at that time complained of “anxiety or depression” but denied having “frequent trouble sleeping” and having “frequent or terrifying nightmares.” d. His complaint of depression and anxiety was one of the few differences that distinguished this examination from his medical examination at the time of his enlistment. One crucial piece of evidence relating to mitigating the applicant’s misconduct is from a sworn statement by CPT JFB of 1 October 1971. CPT JFB swore the applicant told him he was seeking a discharge. According to CPT JFB, he did everything he could to persuade the applicant that it was folly to seek a discharge in the way he was seeking it; however, the applicant, according to CPT JFB, said he would do whatever he had to do to get discharged. CPT JFB explained to the applicant then asked, in CPT JFB's words, for “advice on how to go about misconducting himself without getting court-martialed or jailed.” The available evidence is that the applicant was engaged in a premeditated effort to obtain early release from the Army. Even if granted, there is inadequate evidence that the applicant had PTSD after returning from Vietnam, his sustained, plotted, goal-driven efforts to obtain an administrative discharge are not characteristic of PTSD, and would not mitigate misconduct if he did, as is being allowed for the sake of argument, to have PTSD at that time. The evidence does not sufficiently support that he had PTSD at the time of his service. e. In regard to the referral questions – * the applicant’s available records do not at the time of his discharge reasonably support him having had a boardable medical condition, as PTSD was not then recognized * he met the standards in AR 40-501 and AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) * he did not have a mitigating [behavioral health] condition for the offenses committed * his case material did include a medical examination that met Title 10, U.S. Code, section 1177 requirements * a review of the record found no mitigating behavioral-health conditions supporting a discharge upgrade f. In conclusion, the applicant met medical retention standards in accordance with chapter 3, AR 40-501, and following the provisions set forth in AR 635-40 that were applicable to the applicant’s era of service. A review of available documentation did not find evidence of a medical disability or conditions which would support a change to the character or reason for the discharge in this case. 17. The applicant was provided a copy of this advisory opinion to give him an opportunity to provide additional comments and/or a rebuttal. He did not respond. REFERENCES: 1. AR 635-212, in effect at the time, set forth the policy for administrative separation for unfitness. It provided 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 an honorable or a general discharge. 2. AR 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations) sets forth the basic policy for the separation of enlisted personnel. a. Paragraph 3-7a states 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 states 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. PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster. The American Psychiatric Association (APA) publishes the Diagnostic Statistical Manual (DSM) 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." 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 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. 6. 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, 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. 7. 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 under other than honorable conditions 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. 8. 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 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? 9. 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. 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 under other than honorable conditions 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 under other than honorable conditions. 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 applicant's records reveal an extensive history of misconduct that included multiple instances of nonjudicial punishment, a history of AWOL, and failure to respond constructively to rehabilitation efforts. He appears to have been provided counseling and/or multiple opportunities for rehabilitation by various members of his chain of command, but he failed to respond constructively. Accordingly, his chain of command initiated separation action against him by reason of unfitness. 2. The evidence of record shows his separation action was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would have jeopardized his rights. The discharge proceedings were conducted in accordance with applicable law and regulations at the time and the character of his service is commensurate with his overall record of military service. 3. As the medical review concluded, the applicant’s available records do not at the time of his discharge reasonably support him having had a boardable medical condition, as PTSD was not then recognized. The applicant met medical retention standards in effect at the time and the evidence did not show he had a mitigating behavioral health condition. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005205 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160005205 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2