BOARD DATE: 4 May 2017 DOCKET NUMBER: AR20160005695 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: 4 May 2017 DOCKET NUMBER: AR20160005695 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: 4 May 2017 DOCKET NUMBER: AR20160005695 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, in effect, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show an aggravated assault from which he incurred post-traumatic stress disorder (PTSD). 2. The applicant states, in effect, he was a patient staying in a medical barracks while stationed in Vietnam. He was shot by a fellow Soldier who was Caucasian in an unprovoked attack. He states he received a payment of $50,000 and a Purple Heart with no name inscribed on it. He asserts, for him, this is evidence of a cover-up. He states his DD Form 214 does not reflect what happened. He feels this attack should be acknowledged and included as part of his record. Because he was shot, he suffers from panic and anxiety attacks, PTSD, and has chronic pain in his back and stomach. 3. The applicant provides no additional documentary evidence. 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. The applicant's complete military records are not available for review. However, evidence that was included in an earlier ABCMR application, ABCMR Docket Number AR1999029018 dated 15 March 2000, provides a basis to address his request. This evidence consists of his DD Form 214, an extract from his DA Form 20 (Enlisted Qualification Record), and documents from the Department of Veterans Affairs (VA). 3. The applicant was inducted into the Army of the United States on 13 March 1967. 4. He served in Vietnam from on or about 28 August 1967 to on or about 28 January 1968. On or about 29 January 1968, he was a patient at a military hospital in Japan and was then moved to Martin Army Hospital, Fort Benning, GA, on or about 10 February 1968. 5. He was honorably released from active duty on 12 March 1969. His DD Form 214 shows he completed 2 years of net active creditable service. It is void of any indication he was shot by a fellow Soldier and does not show the Purple Heart. Among his awards is the Combat Infantryman Badge. His name is not on the Vietnam Casualty Roster as being wounded in action. 6. A VA Rating Decision, dated 12 March 1986, states, in effect, the applicant was shot by another Soldier while in Vietnam. A VA Rating Decision, dated 19 December 1997, essentially affirms the applicant had a disability rating of 70 percent for service-connected PTSD, and 10 percent for post-operative colectomy [a surgical procedure to remove part or all of the colon] following a gunshot wound to the abdomen. 7. ABCMR Docket Number AR1999029018, dated 15 March 2000, shows the applicant requested the Purple Heart based on being shot by a fellow Soldier. The Board denied his request. 8. On 2 December 2016, the Army Review Boards Agency (ARBA) psychiatrist provided an advisory opinion. a. The applicant entered the Regular Army on 13 March 1967 in military occupational specialty 71F (Postal Clerk). While on active duty, he served a tour in Vietnam. On 12 March 1969, he was honorably released from active duty, and transferred to the U.S. Army Reserve. He has applied to the ABCMR in the past, requesting that his DD Form 214 reflect a Purple Heart he claims he received while on active duty. His application was denied on 22 March 2000. He is reapplying to the ABCMR requesting his DD Form 214 reflect the fact he was shot by another Soldier, and again asserts he received a Purple Heart for this injury. b. The ARBA psychiatrist was asked to evaluate this case. Information provided by the applicant and the ABCMR was reviewed, and included his current application, VA Rating Decisions, and the applicant's available military medical records. The military electronic medical record (the Armed Forces Health Longitudinal Technology Application (AHLTA)) was not in use during the applicant's era of service. The applicant's military personnel records were not reviewed as they were [apparently] destroyed in the NPRC fire in 1973. c. The applicant stated in his application, while he was in Vietnam, and staying in a medical barracks, a fellow Soldier shot him in an unprovoked attack. He further reports he received payment because of this incident, along with a Purple Heart. He requests this information be added to his DD Form 214, asserting it should be a part of his record due to the resulting pain and anxiety he has experienced. d. His VA Rating Decision letter, dated 24 December 1997, indicates he was determined to have a 70 percent disability rating for service-connected PTSD. In total, the letter showed he had an overall 100 percent disability rating for service-connected behavioral health and physical conditions. e. A review of his military medical records reveals no documentation regarding PTSD symptoms or behaviors. One medical progress note, dated 1 January 1972, states the applicant reported insomnia and nervousness, secondary to working in the stockade. During this appointment, he requested transfer to a different work site. He was placed on a short-term trial of valium to help him sleep. There is no evidence in his medical records he failed medical retention standards in accordance with Army Regulation (AR) 40-501 (Standards of Medical Fitness). f. Based on the VA Rating letter, the applicant has a disability rating of 70 percent for service-connected PTSD. However, it is not clear when his PTSD began, as there is no documentation available to establish the presence of an in-service diagnosis. 9. On 2 December 2016, the Case Management Division, ARBA, provided the applicant with a copy of the advisory opinion for review and comment. On 15 December 2016, via email, he responded, essentially stating: * he believes the shooting was racially motivated; the incident occurred on the night of the Tet Offensive [launched on 30 January 1968, it was one of the largest military campaigns executed by North Vietnamese forces] * a white Soldier came into the barracks with a .38 caliber non-military pistol with the intent to shoot a black Soldier; when the applicant asked him to put away the gun, the Soldier shot the applicant * it is his sincere belief the government is trying to cover this up * he indicated he wanted his records to show this incident, the compensation he received, and a Purple Heart with his name inscribed * he believes this would help his children and other family members better understand why he has PTSD, and the resulting disassociation from family members * he asks, rhetorically, if the situation were reversed, would not the Board members feel the same, and desire the same outcome? REFERENCES: 1. AR 635-5 (Personnel Separations – Separation Documents), in effect at the time, prescribed policies and procedures for the preparation of the DD Form 214. It states the purpose of the DD Form 214 is to provide the individual with documentary evidence of military service. The regulation details the required entries for the DD Form 214, to include identification data, exact dates of service, character of service, and awards and decorations. It does not state that the DD Form 214 will also include details of specific events or incidents that may have occurred during the term of active service (i.e. being wounded, whether due to assault or the result of combat action). 2. On 3 September 2014, the Secretary of Defense gave written guidance to Service Discharge Review Boards (DRB) and Service Board for Correction of Military Records (BCMR)/Naval Records (NR). This memorandum directed them to consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on requests for upgrades in the character of service for former service members who had a valid diagnosis of PTSD. 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. a. 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. b. 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 Diagnostic and Statistical Manual of Mental Disorders, Fifth Revision (DSM-5) was released in May 2013. a. 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. b. 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. AR 195-10 (Criminal Investigation Activities), in effect at the time, prescribed responsibilities, mission, objectives, and policies pertaining to the Army Criminal Investigation Program. Chapter 3 (Criminal Investigation Activities) showed the types of offenses investigated by the U.S. Army Criminal Investigation Command (CID). It stated CID investigated offenses for which the maximum punishment, as listed in the Table of Maximum Punishments, Manual for Courts-Martial (MCM), Uniform Code of Military Justice (UCMJ), included confinement at hard labor for 1 year or more. 6. The MCM in effect at the time included a Table of Maximum Punishments. The maximum punishment for assault with a dangerous weapon likely to produce death or grievous bodily harm (Article 128 (Assault), UCMJ) included confinement for 3 years. When the charge involved intentionally inflicting grievous bodily harm with a weapon, the maximum period of confinement was 5 years. 7. AR 195-2 (Criminal Investigation Activities), currently in effect, establishes policies for criminal investigation activities. Paragraph 4-4 contains guidance for individual requests for access to CID Reports of Investigation (ROI) and military police reports. It states, requests for copies of investigative reports should be sent to the Director, U.S. Army Crime Records Center (USACRC), ATTN: CICR-FP, 27130 Telegraph Road, Quantico, VA 22134. 8. AR 640-10 (Military Personnel Records Jacket, U.S. Army), in effect at the time, outlined policies and procedures for filing documents in personnel records. It does not indicate reports regarding criminal incidents, to include military police reports and CID ROI, are required to be filed in the personnel record. DISCUSSION: 1. The applicant requests correction of his DD Form 214 to show a fellow Soldier shot him while he was in Vietnam. By regulation, the DD Form 214 is not intended to reflect this type of information. 2. The gravity of this offense would likely have required investigation by CID. The applicant can submit a request to the Director, USACRC, to obtain a copy of any investigation that may have been conducted. 3. With regard to the applicant's diagnosis of PTSD, it is reasonable to presume being shot by a fellow Soldier would have serious and traumatic consequences. While the evaluation by the ARBA psychiatrist affirms the VA diagnosed the applicant with service-connected PTSD at some point after his separation from military service, the available evidence does not show the applicant failed medical retention standards while on active duty. Additionally, the lack of documentation to establish in-service symptoms of PTSD results in the inability to validate when, precisely, his PTSD began. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005695 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160005695 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2