BOARD DATE: 17 August 2017 DOCKET NUMBER: AR20160014443 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: 17 August 2017 DOCKET NUMBER: AR20160014443 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: 17 August 2017 DOCKET NUMBER: AR20160014443 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 general, under honorable conditions discharge. 2. The applicant states that he was a good Soldier before deploying to Vietnam. After he returned to the United States his military performance level dropped. He received non-judicial punishment (NJP) on several occasions, he went absent without leave (AWOL), and he was discharged as a private (E-1). He states he developed post-traumatic stress disorder (PTSD) as a result of his service in Vietnam. He has not wanted to talk to anyone about his discharge and he has trouble dealing with authority. He adds that he believes he was acting out against the Army due to his PTSD and that his discharge should be upgraded to reflect his record of service prior to the onset of his PTSD. 3. The applicant provided no additional documentary evidence in support of his application. 4. On 27 December 2016, the Director, Case Management Division, Army Review Boards Agency (ARBA), notified the applicant that in order for the Army Board for Correction of Military Records (ABCMR) to consider his application, he must provide copies of the medical documents that support his mental health issues (PTSD). He provided a copy of his Department of Veterans Affairs (VA) disability rating. 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 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 DA Form 20 (Enlisted Qualification Record), in pertinent part, shows he was: * inducted into the U.S. Army on 23 January 1968 * awarded military occupational specialty 11C (Indirect Fire Crewman) * assigned to Vietnam on 4 August 1968 * promoted to specialist four (SP4)/pay grade E-4 on 11 November 1968 * injured/wounded, as follows – * punji stake wound (scrotum) – 14 November 1968 * fragment wounds (right side) – 20 February 1969 * hospitalized as a patient from 20 February to 21 March 1969 * medically evacuated to the United States on 22 March 1969 * assigned to Fort Lewis, WA, on 8 July 1969 * AWOL, effective 2 September 1969 3. A review of the applicant's military personnel records failed to reveal a charge sheet or an administrative separation packet. 4. Headquarters, U.S. Army Administration Center (USAAC), Fort Benjamin Harrison (FBH), IN, Special Orders Number 19, dated 28 January 1975, show the applicant was assigned to the Joint Clemency Processing Center (Provisional), FBH, IN; reduced to private (E-1); and reassigned to the Transfer and Separation Point, USAAC, FBH, IN, for separation with an undesirable discharge effective 28 January 1975 5. A DD Form 215 (Correction to DD Form 214, Report of Separation from Active Duty), dated 22 August 1975, shows a DD Form 1953A (Clemency Discharge Certificate) was issued to the applicant in recognition of satisfactory completion of alternate service pursuant to Presidential Proclamation Number 4313. 6. On 8 July 1976, The Adjutant General of the Army notified the applicant that, after reviewing the findings and conclusion of the Army Discharge Review Board, the Secretary of the Army directed the applicant's discharge be changed to under honorable conditions (general). 7. A DD Form 214 and DD Form 257A (General Discharge Certificate) show the applicant was discharged on 28 January 1975 under honorable conditions (general). He had completed 1 year, 7 months, and 10 days of net active service. It also shows he had 141 days lost before normal expiration of term of service (ETS) and 1,826 days lost after normal ETS. 8. In support of his application the applicant provided a VA, Washington, DC, letter, dated 25 January 2017, with an enclosure that shows the VA granted him a combined service-connected disability rating of 90 percent (%) with PTSD rated at 50% (effective 25 September 1990). 9. In the processing of this case, an advisory opinion was obtained from the medical staff, ARBA, dated 13 February 2017. a. The ARBA staff psychologist reviewed the applicant's military personnel records and service treatment records. b. A review of the Joint Legacy Viewer revealed the VA granted him a service-connected disability rating of 90 percent (%) with his PTSD rated at 50%. His VA problem list includes PTSD, major depressive disorder, sleep apnea, type 2 diabetes, and erectile dysfunction. c. He found the available medical records do not support the applicant had a boardable medical condition during the period of service under review. The applicant met mental health standards in Army Regulation (AR) 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), and following the provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation). d. He did not find a nexus between the applicant's misconduct and his mental health condition. He added that based on the available behavioral health evidence, there is mitigation for reasons of a psychiatric condition for the applicant's misconduct (i.e., the applicant appeared to have been depressed and likely was having PTSD symptoms). He concluded that the applicant's PTSD meets the criteria of the Secretary of Defense's liberal guidance policy for PTSD. e. The ARBA medical advisor opined the applicant's mental health conditions were not considered at the time of his discharge from the Army. He stated, "Accordingly, he meets the criteria of the Secretary of Defense Liberal Guidance Policy for PTSD." He concluded that the available documentation did provide evidence of mental health considerations sufficient to change the character of the discharge. 10. On 14 February 2017, the applicant was provided a copy of the advisory opinion in order 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 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. 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 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. 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 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. 8. Presidential Proclamation 4313, issued on 16 September 1974, provided for the issuance of a clemency discharge to certain former Soldiers, who voluntarily entered into and completed an alternate public work program specifically designated for former Soldiers who received a less than honorable discharge for AWOL-related incidents between August 1964 and March 1973. Under this proclamation, eligible deserters were given the opportunity to request discharge for the good of the service with the understanding that they would receive an undesirable discharge. Upon successful completion of the specified alternative service, the deserter was issued a clemency discharge. The clemency discharge did not affect the individual’s underlying discharge and did not entitle him to any VA benefits. Rather, it restored federal and, in most instances, state civil rights which may have been denied due to the less than honorable discharge. 9. AR 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10, in effect at the time, provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service. 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. DISCUSSION: 1. The applicant contends his general discharge should be upgraded to honorable because he developed PTSD as a result of his service in Vietnam. 2. The evidence of record shows the applicant served honorably from January 1968 through August 1969, which included service in Vietnam where he was wounded twice in action. a. He returned to the United States for medical treatment and subsequently went AWOL. b. He returned to military control after a period of more than 5 years of unauthorized absence. c. He was discharged under other than honorable conditions. About 7 months later his discharge was administratively changed to a clemency discharge in recognition of satisfactory completion of alternate service. d. Approximately 1 year later, the Secretary of the Army directed the applicant's discharge be changed to under honorable conditions (general). 3. The ARBA medical advisor found the available documentation provides evidence of mental health considerations sufficient to change the character of the discharge. He also found the applicant meets the criteria of the Secretary of Defense Liberal Guidance Policy for PTSD; however, that is not accurate. 4. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards and 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. a. This policy provides for upgrade of an under other than honorable conditions characterization of service consistent with the overall character of service during the period under review as mitigated by the (then) undiagnosed medical condition. An upgrade of the characterization of service to general, under honorable conditions offers the former Soldier eligibility for veterans' benefits. b. The applicant was not discharged under other than honorable conditions; he was administratively discharged under honorable conditions. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160014443 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160014443 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2