BOARD DATE: 8 August 2017 DOCKET NUMBER: AR20160009065 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ____x____ ___x_____ ___x_____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 8 August 2017 DOCKET NUMBER: AR20160009065 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: * voiding his DD Form 214 for the period ending 15 June 1977 in the rank/grade of private/E-1 * issuing a new DD Form 214 for the period ending 15 June 1977 showing his character of service as "General under Honorable Conditions" and restoring his rank and pay grade to sergeant/E-5 with a date of rank of 1 May 1976 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to correcting his DD Form 214 for the period ending 15 June 1977 to show the character of his service as "Honorable." _____________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: 8 August 2017 DOCKET NUMBER: AR20160009065 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 discharge under other than honorable conditions to fully honorable. 2. The applicant states: a. He volunteered to join the Army. He was sent to Vietnam after completing initial entry training. In Vietnam, it seemed as though the only thing that was of any concern was the duty officer finding someone sleeping on guard duty. He felt isolated from the world because no one would talk to the new guy on the block. b. Looking for a little more to do, he volunteered to become a door gunner. He doesn't know if everyone understands what it felt like to have to pull a pilot or co-pilot out of their seats when wounded. He still can't forget how it felt when they reached out and grasped his hand for help. c. Doctors removed what was left of his kidney in Japan. He was put on light duty and restricted duty. After being released from the hospital, he was sent to Fort Eustis, VA. He ran a copying machine and drove a staff car. He didn't see any future in what he was doing so he eventually took a reassignment back to Vietnam. d. He was assigned to 7th Battalion, 8th Field Artillery Regiment. He repaired weapons and pulled guard duty. There, he had his first introduction to getting drunk to pass time; there was alcohol everywhere he went. One day, he felt a thud while he was traveling on a road and saw what appeared to be a child lying in the road; he was told to keep going. On another movement, he almost hit an ox cart with people in it. He never thought it would come back to haunt him. e. He was on his way to a new assignment when he saw one of his old commanders. His former commander told him that their base in Vietnam was overrun and he was trying not to feel any emotion when he was told the names of people he knew who may not have made it. f. His next assignment was at Fort Hood, TX. He stayed on base most of the time playing pool, watching television, and drinking. He didn't go downtown because bars and people were always trying to get his money. He remembers having a problem with drinking and driving off post. However, the police offered intoxicated people the opportunity to call their unit for a ride. He thinks he got away with drinking and driving because he was good at his job. g. He met a woman and got married. His drinking ending their marriage. He met another woman and remarried. He once again had family problems. He was assigned to Germany and he knew things were happening at home and he could not do anything about it. h. He tried counseling, but he went back to alcohol. He drank so much that he wanted to kill himself; he just couldn't take it anymore. He remembers going back to base and getting into a confrontation with someone and having about 15 military police beating him with clubs. He also remembers taking a drink of water the next day and passing out because he was still so intoxicated. i. He was court-martialed and sent to Fort Riley, KS, for retraining. He was granted an early release and was later assigned to Fort Lewis, WA, where he was assigned to run a supply room and was promoted to the rank of specialist five/E-5. j. About a year later, he received orders for an assignment to Korea. He knew in the back of his mind that bad things would start all over again. He remembers while in Korea that he asked his commander if he could take leave and his commander said no. His commander eventually let him go on leave and he went home. He tried to fix problems at home but his wife did what she wanted to do. He returned to Korea and went back to alcohol, knowing this time he might be released from the Army, which he was. k. He is now being treated for post-traumatic stress disorder (PTSD) by the Department of Veterans Affairs (VA). 3. The applicant provides a self-authored statement and letter from the Jesse Brown VA Medical Center, Chicago, IL, dated 30 August 2016. 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 enlisted in the Regular Army on 14 December 1967. He entered active duty, completed his initial entry training, and was awarded military occupational specialty (MOS) 63C (Track Vehicle Mechanic). 3. The applicant served two tours in Vietnam from on or about 16 May 1968 through on or about 11 March 1969 and from on or about 4 November 1969 through on or about 30 October 1970. During his second tour in Vietnam, he was promoted to specialist five/E-5 on 12 August 1970. 4. The applicant’s DA Form 2-1 (Personnel Qualification Record) shows he was promoted to staff sergeant/E-6 on 1 February 1973. 5. A DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 23 October 1974, shows the applicant received nonjudicial punishment (NJP) for: * violating Article 89; specifically, for disrespecting a commissioned officer on or about 19 October 1974 * violating Article 134; specifically, for being drunk and disorderly on or about 19 October 1974 6. Special Court-Martial Order Number 2 issued by Headquarters, 3rd Brigade, 8th Infantry Division, on 16 January 1975 shows the applicant was convicted of the following charges: a. Charge 1 – violating Article 128 of the UCMJ; specifically, for assaulting and holding a knife to his first sergeant's throat on or about 30 November 1974; b. Charge 2 – Violating Article 128 of the UCMJ; specifically, for striking a commissioned officer on or about 30 November 1974; c. Charge 4 – violating Article 134 of the UCMJ; specifically, for threatening to kill his first sergeant, company commander, and battalion commander on or about 30 November 1974; and d. Charge 5 – violating Article 128 of the UCMJ; specifically, for conducting himself in a drunk and disorderly manner on or about 30 November 1974. 7. The applicant was sentenced to reduction to the rank/grade of private/E-1; forfeiture of $229.00 pay per month for 3 months; and confinement at hard labor for 3 months. The sentence was adjudged on 13 January 1975. Only so much of the sentence as provided for reduction to private/E-1, confinement for 2 months at hard labor, and forfeiture of $229.00 per month for 2 months was approved and ordered executed. 8. The applicant continued to serve after confinement and achieved the rank/grade of sergeant/E-5 on 1 May 1976. 9. A DA Form 458 (Charge Sheet), dated 15 May 1977, shows court-martial charges were preferred against the applicant for the following: * violating Article 90 of the UCMJ; specifically, for striking a commissioned officer in the face on or about 14 May 1977 * violating Article 108 of the UCMJ; specifically, for destroying military property on or about 14 May 1977 10. He was confined and recommended for trial by general court-martial. 11. The applicant's brigade commander petitioned the general court-martial convening authority (GCMCA) on 19 May1977 for a special court-martial empowered to adjudge a bad conduct discharge (BCD). The brigade commander stated the applicant broke the lieutenant's nose; therefore, nothing less than a BCD was justified. 12. The GCMCA referred the applicant, on 28 May 1977, to trial by special court-martial empowered to adjudge a BCD. 13. The applicant consulted with legal counsel on 29 May 1977 and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge under other than honorable conditions, and the procedures and rights available to him. Subsequent to receiving this legal counsel, he voluntarily requested discharge in lieu of trial by court-martial, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. a. In his request for discharge, he indicated he understood that if his request for discharge was accepted, he may be discharged under other than honorable conditions. He indicated he had been advised of the possible effect of an under other than honorable conditions discharge and understood that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws. b. He was advised he may submit statements in his behalf. He did not submit any statements with his request for discharge in lieu of trial by court-martial. 14. The applicant's immediate commander and battalion commander recommended approval of his discharge request on 29 May 1977 for the good of the service and recommended the applicant receive an under other than honorable conditions characterization of service. Stating the gravity of the charged offense, the brigade commander recommended disapproval of the chapter 10 request. 15. The GCMCA approved the applicant's request for discharge on 3 June 1977 under the provisions of Army Regulation 635-200, chapter 10, and directed his reduction to the lowest enlisted grade and discharge under other than honorable conditions. 16. The applicant was discharged on 15 June 1977. His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, and his character of service was under other than honorable conditions. His rank and grade are shown as private/E-1 with a date of rank of 3 June 1977. His service in Vietnam is also recorded on this form. The applicant had no history of lost time. Among his authorized awards are the Army Commendation Medal, Army Good Conduct Medal, and Vietnam Service Medal with seven bronze service stars (shown as seven campaigns on his DD Form 214). 17. The applicant's records are void of any documentation that shows he suffered from or was treated for PTSD or PTSD-like symptoms during his period of service. 18. The applicant did not apply to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 19. The applicant provided a letter from the Jesse Brown VA Medical Center that states, in effect: a. He received a PTSD diagnosis on 4 November 2015 and was awarded a 30-percent service-connected rating. b. He presented a full-range of PTSD-related symptoms: nightmares, intrusive memories, images, and flashbacks of his Vietnam experiences. He reported feelings of guilt and grief about the loss of fellow Soldiers whom he saw die from injuries and avoids conversations related to his combat experiences. c. He reports remaining fearful of and avoids large crowds as a means of protecting himself from his impending fear of being harmed. He also reports severe and chronic sleep disturbances that leads to impairments in attention and concentration and he often awakens in a cold sweat with an increased heart rate. He has trouble controlling and managing his anger, is hypervigilant, easily agitated and aroused, and presents with pronounced startle response as well as a hypersensitivity to noises. d. He attempted to cope with his PTSD symptoms through the use of alcohol throughout his military career which resulted in his discharge. It is the medical provider's opinion that he was suffering from PTSD during his period of military service. 20. In the processing of this case, an advisory opinion was obtained on 8 December 2016 from an Army Review Boards Agency (ARBA) Clinical Psychiatrist. The advisory official noted and opined: a. A review of the applicant's military records indicates his records are void of documentation of PTSD symptoms. There is no indication he failed to meet military medical retention standards in accordance with chapter 3, Army Regulation 40-501 (Standards of Medical Fitness), and following the provisions set forth in Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant's era of service. b. The lack of documentation of PTSD symptoms in his military records does not necessarily indicate he did not have PTSD. In the era of his military service, PTSD symptoms were frequently not recognized. Oftentimes in these cases, the presence of PTSD has to be inferred from behavioral indicators, such as in the case of the applicant. c. A review of his file indicates his problems with alcohol and misconduct began after he returned from his second tour of duty in Vietnam. All of his incidents of misconduct occurred when he was intoxicated. His record also indicates that when he was not drinking, that he was an excellent Soldier. His use of alcohol to avoid dealing with PTSD symptoms is consistent with the self-medication one commonly sees in PTSD. d. There is sufficient evidence to conclude that he had undiagnosed PTSD or related symptoms while on active duty. Because PTSD can be associated with self-medicating behaviors such as alcohol abuse, there is likely a nexus between his misconduct which led to his discharge from the Army and PSTD symptoms (alcohol abuse). 21. The applicant was provided a copy of this advisory opinion on 13 December 2016, to provide him an opportunity to comment and/or submit a rebuttal. He did not respond. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-14 stated that when a member was to be discharged under other than honorable conditions, the convening authority would direct an immediate reduction to the lowest enlisted grade. b. 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. c. 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. d. Paragraph 3-7c states a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial. When a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade. e. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. 2. 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. 3. 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. 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 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 of time. 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 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? 9. Although 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. a. 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. b. 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. c. 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 request for an upgrade of his discharge under other than honorable conditions was carefully considered. He contends that undiagnosed PTSD was a mitigating factor to the misconduct that led to his discharge. 2. The evidence of record shows the applicant served two tours in Vietnam, with the latest tour ending on 30 October 1970. He had no record of indiscipline until he received NJP in October 1974. He subsequently had several more instances of misconduct in 1974 that lead to a special court-martial and confinement in 1975. 3. After serving 2 months in confinement, the applicant continued serving on active duty and achieved the rank of sergeant/E-5. However, in 1977, he was charged with the commission of multiple violent offenses that were punishable under the UCMJ with a punitive discharge. After consulting with counsel, he elected discharge under the provisions of Army Regulation 635-200, chapter 10. Discharges under this regulatory provision are voluntary requests for discharge in lieu of trial by court-martial. By requesting the chapter 10 discharge, he admitted he was guilty of the charged offenses. 4. The applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial was administratively correct and in conformance with applicable laws and regulations. There is no indication his request was made under coercion or duress. His discharge accurately reflects his overall record of service. The characterization of service he received was commensurate with the reason for his discharge. 5. The applicant contends his undiagnosed PTSD and marital problems caused him to self-medicate with alcohol, which led to his misconduct. The evidence of record shows he was intoxicated during each incident of misconduct for which he was charged. 6. There is no evidence within the applicant's records that shows he reported or was treated for alcohol or PTSD-like symptoms during his period of service. However, he did provide VA documentation that discussed his mental state and his diagnosis of PTSD. In addition, an ARBA advisory opinion concluded that there is sufficient evidence to support the applicant’s contention that his misconduct was due to PTSD related to his combat experiences during two periods of service in Vietnam. Thus, the ARBA medical advisor discovered a nexus between the applicant’s misconduct and his mental health, opining that a review of available documentation did discover evidence of a mental health condition that is sufficient to warrant considering a change to the characterization of his service. a. An honorable discharge is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel. 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. 7. As the applicant was administratively reduced to the lowest enlisted grade on the basis of his discharge under other than honorable conditions, if the Board favorably considers his request for a discharge upgrade, it would be appropriate to reinstate his rank to sergeant/pay grade E-5 with a date of rank of 1 May 1976. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016310 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160009065 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2