BOARD DATE: 16 March 2017 DOCKET NUMBER: AR20160012492 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 BOARD DATE: 16 March 2017 DOCKET NUMBER: AR20160012492 BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. 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 for the period ending 30 October 1974 showing his service was characterized as general, under honorable conditions. __________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: 16 March 2017 DOCKET NUMBER: AR20160012492 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 under other than honorable conditions (UOTHC) discharge based on his record of service and a post-service diagnosis of post-traumatic stress disorder (PTSD). 2. The applicant states the Army Board for Correction of Military Records (ABCMR) administratively closed his request on 7 May 2014. Since then, he has obtained new and relevant evidence. a. He states he served honorably during his initial period of service from October 1969 to January 1971, this period of service included combat service in Vietnam. He was awarded the National Defense Service Medal, Vietnam Service Medal, and Combat Infantryman Badge. His second period of service from January 1971 to October 1974 was characterized as UOTHC. b. The new evidence shows he did not have adequate legal representation by his counsel. Thus, the court-martial he received was inappropriate, and the sentence was unfair and unjust. In addition, the new medical evidence shows he was suffering from chronic PTSD, which caused the misconduct that led to his discharge. 3. The applicant provides a self-authored statement, dated 21 June 2016 (summarized above), a psychological evaluation, and two medical records. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army (RA) on 8 October 1969 for a period of 3 years. He was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman). a. He accepted nonjudicial punishment (NJP) on three occasions for: * being absent from his place of duty on 30 January 1970 * failing to go at the time prescribed to his appointed place of duty on 1 April 1970 * being drunk and disorderly on 13 May 1970 b. He served in Vietnam from 2 July 1970 through 22 June 1971. 2. A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was honorably discharged on 7 January 1971 to reenlist in the RA. He had completed 1 year and 3 months of net active service that included 6 months and 5 days of foreign service. 3. The applicant reenlisted in the RA on 8 January 1971 for a period of 3 years and he was promoted to specialist four (E-4) on 9 January 1971. On 29 January, he was authorized 30 days leave. 4. A DD Form 261 (Report of Investigation – Line of Duty and Misconduct Status), dated 18 February 1971, shows that the applicant was hospitalized, on 30 January 1971, as a result of an overdose of heroin that he voluntarily took the prior evening (while still Vietnam). The approval authority determined the applicant's injury was: Not in line of duty – Due to own misconduct. 5. The applicant accepted NJP on five occasions for: * failing to go at the time prescribed to his appointed place of duty on – * 31 May 1971 and 1 June 1971 * 6 August 1971 * 8 November 1971 (he was reduced to private first class/pay grade E-3) * being absent from his unit without authority (AWOL) from 14 December 1971 to 17 January 1972 * being incapacitated for the proper performance of his duties on 15 February 1972 as a result of previous indulgence in intoxicating liquor 6. A DD Form 261, dated 11 January 1972, shows the applicant was injured, at 2030 hours on 15 November 1971, when he fell while intoxicated (under the influence of alcohol). The approval authority determined the applicant's injury was: Not in line of duty – Not due to own misconduct. (A 16 November 1971 entry on the Clinical Record, Doctor's Progress Notes, indicates, "…continue follow-up at MHCS [Mental Health Community Services] for adjustment problem the patient is having. He is currently being followed by MHCS personnel.") 7. Headquarters, Fort Carson and 4th Infantry Division (Mechanized), Fort Carson, CO, Special Court-Martial Order Number 18, dated 8 February 1974, shows the applicant was tried by a special court-martial. a. He pled guilty to and was found guilty of violation of the Uniform Code of Military Justice, Article 86 (two specifications) of being AWOL from his unit from 4 June to 28 November 1972 and from 2 January to 14 September 1973. b. On 30 November 1973, he was sentenced to a bad conduct discharge, confinement at hard labor for 5 months, a forfeiture of $150 pay for 5 months, and reduction to private (E-1). c. On 8 February 1974, the Special Court-Martial Convening Authority approved the sentence and ordered it executed, except for the part of the sentence extending to a bad conduct discharge and confinement at hard labor was suspended until 30 May 1974, at which time, unless the suspension was sooner vacated, the suspended part of the sentence would be remitted without further action. He also directed that the record of trial be forwarded to The Judge Advocate General of the Army for review by a Court of Military Review. (Note: The applicant had been arrested by civil authorities twice while AWOL (on 4 April 1973 for obstruction, impeding, and interfering with Federal Officers during a civil disorder and on 23 August 1973 for impeding Federal Officers during a civil disturbance and illegal use of a firearm during the commission of a felony.) 8. A DA Form 188 (Extract Copy of Morning Report) and DA Form 3835 (Notice of Unauthorized Absence from United States Army), both dated 5 August 1974, show the applicant departed AWOL on 12 July 1974 and he was dropped from the rolls of the organization on 2 August 1974. 9. A review of the applicant's military personnel records failed to reveal a copy of a charge sheet or a copy of his administrative separation packet. Records show he was discharged in abstentia. 10. Headquarters, 9th Infantry Division, Fort Lewis, WA, Special Orders Number 303, dated 30 October 1974, discharged the applicant from the U.S. Army with an UOTHC Discharge Certificate, effective 30 October 1974. 11. The applicant's DD Form 214 (Report of Separation from Active Duty) shows he entered active duty this period on 8 January 1971 and he was discharged on 30 October 1974 under the provisions of (UP) Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial with an UOTHC characterization of service. He had completed 1 year, 11 months, and 13 days of net active service this period. It also shows in: * item 21 (Time Lost): 683 Days * item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) – * National Defense Service Medal * Vietnam Service Medal * Combat Infantryman Badge * Army Commendation Medal * Air Medal * Republic of Vietnam Campaign Medal with Device (1960) * 2 Overseas Bars * Republic of Vietnam Gallantry Cross with Palm Unit Citation * Sharpshooter Marksmanship Qualification Badge with Rifle (M-14 and M-16) Bar 12. On 18 November 1999, the ABCMR denied the applicant's request for upgrade of his discharge. 13. On 16 November 2000, in response to his application to the Army Discharge Review Board (ADRB), the applicant was informed that the ADRB was unable to process his application because the statutory requirements under the appeal option prohibits processing of applications past 15 years from the date of discharge or release from active duty. 14. In support of his application the applicant provides the following documents: a. A Psychological Evaluation, dated 24 July 2007, that shows Doctor Leslie A. F____, PhD, Clinical Psychologist, diagnosed the applicant with PTSD, chronic; major depressive disorder, recurrent, moderate; alcohol dependence, in full sustained remission; and cannabis abuse. b. Department of Veterans Affairs (VA) medical records (2 pages), dated 25 February 2009 and 17 April 2009, that shows he was diagnosed with PTSD, chronic. c. Additional information pertaining to the results of a review of the available medical records by a medical professional is provided in paragraph 15, below. 15. In the processing of this case, an advisory opinion was obtained from the medical staff, Army Review Boards Agency (ARBA), dated 12 December 2016. a. The ARBA staff psychiatrist's review was based on the information provided by the ABCMR and the applicant (in his application with enclosures), along with military personnel records, civilian and VA medical records, and the ABCMR's previous consideration of his request. Military medical records were not available for review. The Department of Defense (DOD) electronic medical record (AHLTA) was not reviewed as it was not in use during the applicant's time in service. b. The staff psychiatrist's review of the applicant's military personnel records revealed his long history of heavy drinking, an overdose on heroin, and NJP for his acts of indiscipline. It was noted that his drinking appeared to increase substantially during and after his deployment to Vietnam. (1) In November 1971, he was diagnosed with alcoholism and he had problems with repeatedly being AWOL. In November 1973, he was convicted by special court-martial and he was subsequently discharged UOTHC. (2) There is no documentation in the available military records of the applicant ever being referred for treatment of his alcohol use disorder. His military records are void of documentation of PTSD symptoms. There is no indication that the applicant failed to meet medical retention standards in accordance with AR 40-501 (Standards of Medical Fitness), chapter 3, and following the provisions of AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant's era of service. c. The staff psychiatrist noted the psychological evaluation, conducted on 24 July 2007, shows the applicant was diagnosed with PTSD, chronic; major depressive disorder, recurrent, moderate; alcohol dependence, in full sustained remission; and cannabis abuse (by history). It also shows he suffers from the following PTSD symptoms: intrusive recollections, disturbing dreams, increased arousal as manifested by irritability, increased anger, impaired sleep, impaired concentration and poor memory, increased startle reaction, depressed mood, and problems with authority figures. d. The staff psychiatrist also noted that two 2009 VA medical records show the applicant was diagnosed with PTSD, chronic; chronic obstructive pulmonary disease; diabetes mellitus II; tuberculosis; asthma; hypertension; hyperlipidemia; and alcohol dependence in long-term remission. e. The advisory official opined that the lack of documentation of PTSD symptoms in the applicant's military records does not necessarily indicate he did not have PTSD. In the era of the applicant's military service, PTSD was not a recognized diagnosis and PTSD symptoms were frequently not identified as such. Oftentimes, in these cases, the presence of PTSD has to be inferred from behavior indicators. Such is the case with this applicant. (1) While the applicant's records show he exhibited problem drinking behavior prior to deploying to Vietnam, these problem drinking behaviors escalated greatly during and after his deployment to Vietnam. She added, "Additionally, the applicant is noted to have overdosed on heroin while in Vietnam, a drug he admitted he had never used before." (2) It is likely that the applicant's worsening substance abuse problems were due to his undiagnosed PTSD. Soldiers suffering from PTSD often try to self-medicate their PTSD symptoms with alcohol and drugs. Moreover, the applicant's undiagnosed PTSD likely played an instrumental role in his frequent incidents of failing to report to his appointed place of duty and being AWOL. Soldiers with PTSD often engage in avoidance behaviors such as these in an attempt to avoid triggering their traumatic experiences. Such is the likely case with this applicant. f. The advisory official concluded, "Based on the information available at this time, there is sufficient evidence to conclude that the applicant had undiagnosed PTSD while on active duty. Because PTSD can be associated with avoidant behaviors such as being AWOL, there is likely a nexus between the applicant's PTSD and the misconduct which led to his UOTHC discharge from the Army." 16. On 15 December 2016, the applicant was provided a copy of the ARBA advisory opinion to allow him the opportunity (30 days) to submit comments or a rebuttal. A response was not received from the applicant. REFERENCES: 1. PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster. The Diagnostic and Statistical Manual of Mental Disorders (DSM) is published by the American Psychiatric Association (APA) 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." 2. 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. 3. The DSM Fifth Revision (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, along with 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. 4. 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 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 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. 5. In view of the foregoing, on 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards 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 applicant's service. 6. 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? 7. 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 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 UOTHC 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 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. 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. 8. Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that the Board is not empowered to set aside a conviction. Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. 9. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. a. 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 UOTHC is normally considered appropriate. b. Chapter 3, paragraph 3-7a, provides that 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. Chapter 3, paragraph 3-7b, provides that 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. 10. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant contends that his discharge should be upgraded based on a post-service diagnosis of PTSD and that his court-martial was inappropriate, unfair, and unjust because of inadequate legal representation. 2. Records show the applicant enlisted in the RA on 8 October 1969. a. He received NJP on three occasions for twice being absent from his place of duty and once for being drunk and disorderly. b. He was then assigned overseas and began serving in Vietnam on 2 July 1970. c. A DD Form 214 documents his honorable service from 8 October 1969 through 7 January 1971. 3. He reenlisted in the RA on 8 January 1971. a. He was hospitalized as result of an overdose of heroin. b. He received NJP for being absent from his place of duty on two occasions. c. He completed his tour of duty and redeployed to the continental United States on 22 June 1971. (1) He received NJP on four occasions, including being AWOL for a prolonged period of service (i.e., more than one month) and being incapacitated for the proper performance of his duties as a result of indulgence in intoxicating liquor. (2) The applicant was tried by special court-martial. He pled guilty to, and was found guilty of, the charge (with two specifications) of being AWOL (i.e., from 4 June 1972 to 28 November 1972 and from 2 January 1973 to 14 September 1973). (a) His sentence included reduction to private (E-1), forfeiture of $150.00 per month for 5 months, a bad conduct discharge, and to be confined at hard labor for 5 months. The Special Court-Martial Convening Authority approved the sentence and ordered it executed, except for the part of the sentence extending to a bad conduct discharge and confinement at hard labor was suspended until 30 May 1974. (b) The applicant's contention that he had inadequate legal representation is noted; however, the issue was a matter the applicant could/should have presented in the trial review/appeal process. (It is noted the applicant went AWOL prior to the completion of a review of the record of trial by a Court of Military Review.) (c) The applicant's trial by special court-martial was warranted by the gravity of the offenses for which he was charged. In the absence of evidence to the contrary, it is concluded that conviction and sentencing were effected in accordance with applicable law and regulations and the applicant's rights were protected throughout the court-martial process. d. The applicant went AWOL on 12 July 1974 and he was discharged in abstentia UP AR 635-200, chapter 10, with an UOTHC discharge on 30 October 1974. 4. There is no evidence of record to show the applicant had a medical condition that was found to be medically unfitting during the period of service under review. a. In 2007, the applicant was diagnosed with PTSD, chronic; major depressive disorder, recurrent, moderate; alcohol dependence, in full sustained remission; and cannabis abuse. b. The ARBA staff psychiatrist opined that the lack of documentation of PTSD symptoms in the applicant's military records does not necessarily indicate he did not have PTSD. She concluded that there is sufficient evidence to conclude that the applicant had undiagnosed PTSD while on active duty and that there is likely a nexus between the applicant's PTSD and the misconduct which led to his UOTHC discharge. c. The ARBA staff psychiatrist confirmed the applicant met medical retention standards that were applicable to the applicant's era of service. 5. 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. 6. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160012492 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160012492 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2