BOARD DATE: 19 October 2017 DOCKET NUMBER: AR20160015475 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: 19 October 2017 DOCKET NUMBER: AR20160015475 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: 19 October 2017 DOCKET NUMBER: AR20160015475 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 (undesirable) discharge to an honorable discharge. He also requests personal appearance before the Board. 2. The applicant states that he served in the U.S. Army from October 1966 until November 1972 and in Vietnam for about 2 years. He was honorably released from active duty in May 1969. A few months later, he reentered active duty. He was honorably discharged in July 1970 to reenlist. a. He states that he was wrongfully accused of communicating a threat and pulling a weapon on a fellow Soldier in the barracks. The commanding officer (with whom the applicant was having disagreements) convinced the Soldier to testify that the applicant had threatened him. He also states the commanding officer resented him because of the awards and decorations the applicant had received while serving in Vietnam. b. He states that he was diagnosed with post-traumatic stress disorder (PTSD) in 1997. He has since learned that PTSD may have been a factor in the type of discharge that he received. 3. The applicant provides a self-authored statement (summarized above) and his Department of Veterans Affairs (VA) medical records. 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 (RA) on 7 October 1966 for a period of 3 years and he: * was awarded military occupational specialty 43J (Textile Repairman) * was promoted to specialist four (SP4)/pay grade E-4 on 29 May 1968 * served in – * Germany for 9 months during 1967 * Vietnam from 19 April 1968 through 12 March 1969 * was awarded the – * Soldier's Medal for heroism (not involving combat with the enemy), on 26 October 1968, for twice entering a burning building to fight a fire, evacuating personnel from the building, and sustaining severe burns that required his medical evacuation * Purple Heart for wounds received in action on 12 January 1969 3. A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was honorably released from active duty on 13 May 1969 and transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his Reserve service obligation. He had completed 2 years, 7 months, and 7 days of net active service this period that included 1 year, 9 months, and 12 days of foreign service. It also shows he was awarded the Soldier's Medal, Purple Heart, National Defense Service Medal, Vietnam Service Medal, and Republic of Vietnam Campaign Medal. 4. The applicant enlisted and reentered the RA on 18 November 1969. 5. A DD Form 214 shows he was honorably discharged on 21 July 1970 to reenlistment in the RA. He had completed 8 months and 4 days of net active service this period. 6. He reenlisted in RA on 22 July 1970 for a period of 6 years and he: * served in Vietnam from 9 November 1970 through 9 March 1971 * was transferred to the Medical Holding Company, Womack Army Hospital, Fort Bragg, NC, on 9 March 1971 * was assigned 12th Company, 1st Battalion, The School Brigade, Fort Benning, GA, on 8 April 1971 7. He accepted nonjudicial punishment on four occasions for: * being derelict in the performance of his duties on 17 June 1971 * failing to go at the time prescribed to his appointed place of duty (on three separate occasions) – 23 June 1971, 29 July 1971, and 18 October 1971 8. He was reduced to private first class (PFC)/pay grade E-3 on 24 June 1971. 9. His DA Form 20 (Enlisted Qualification Record), in pertinent part, shows in item 44 (Time Lost) that he was: * Absent Without Leave (AWOL) – * 4 days (12 August 1971 – 15 August 1971) * 11 days (30 December 1971 – 9 January 1972) * 42 days (7 March 1972 – 17 April 1972) * 40 days (2 October 1972 – 10 November 1972) * Confined – * 19 days (19 April 1972 through 7 May 1972) * 30 days (5 June 1972 through 4 July 1972) 10. Headquarters, The School Brigade, U.S. Army Infantry School, Fort Benning, GA, Special Court-Martial (SPCM) Order Number 48, dated 17 May 1972, shows the applicant was tried by SPCM on 8 May 1972. He pled guilty to and was found guilty of violation of the Uniform Code of Military Justice (UCMJ), Article 86, of being absent without authority from his unit from 7 March 1972 to 18 April 1972. a. He was sentenced to be reduced to the grade of private (E-2), to be restricted to the limits of the company area for a period of 45 days, and to forfeit $80.00 per month for a period of 3 months. b. On 17 May 1972, the SPCM convening authority approved the sentence. 11. On 8 June 1972, court-martial charges were preferred against the applicant for violation of the UCMJ: * Article 134, four specifications, for – * on 3 June 1972, wrongfully communicating to a fellow Soldier a threat to kill another Soldier * on 3 June 1972, breaking restriction * on 4 June 1972, breaking restriction * on 5 June 1972, wrongfully having in his possession one (1) .38 caliber pistol with six (6) rounds of ammunition * Article 92, for, on 5 June 1972, violating a lawful general regulation by possessing a syringe 12. On 16 June 1972, the applicant consulted with legal counsel. He was informed of the charges against him for violating the UCMJ and that he was pending trial by court-martial. He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial. He declined the opportunity to consult further with counsel. a. He voluntarily requested discharge for the good of the service in lieu of trial by court-martial. By submitting his request for discharge he acknowledged that he was guilty of the charges against him or of a lesser included offenses therein contained, which also authorized the imposition of an Undesirable Discharge Certificate (UDC). The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge. b. He was advised that he might be: * deprived of many or all Army benefits * ineligible for many or all benefits administered by the VA * deprived of his rights and benefits as a veteran under both Federal and State laws c. He acknowledged he understood that, if his request for discharge was accepted, he might be discharged with a UDC. d. He was also advised that he could submit statements in his own behalf and he elected to submit a statement. e. The applicant and his counsel placed their signatures on the document. f. He provided a statement with a brief history of his military service. He stated that he could not stay in the stockade because he had a family to support (i.e., wife, child, grandmother, and three brothers). He added that he had seen a part of the Army that was not good, which he had not seen before. He added that he had recently been mistreated and felt he could not return to duty and function as a good Soldier. He concluded that (based on the reasons he provided) he did not believe he would be successful in the Army any longer. 13. The chain of command recommended approval of the applicant's request for discharge with a UDC. 14. On 19 July 1972, the separation authority approved the applicant's request for discharge, directed his reduction to the grade of private (E-1), and that he be issued a UDC. 15. The applicant's DD Form 214 shows he entered active duty this period on 22 July 1972 and he was discharged on 10 November 1972 under the provisions of (UP) Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), with Separation Program Number (SPN) 246 (for the good of the service in lieu of trial by court-martial) with an under conditions other than honorable character of service. He had completed 1 year, 10 months, and 28 days of net active service during this period and he had 144 days of lost time. 16. A further review of the applicant's military personnel records revealed: a. A handwritten entry indicating "Void" on "Copy 2 (Record Copy)" of the applicant's 10 November 1972 DD Form 214. b. A reissued 10 November 1972 DD Form 214 (issued on or about 23 June 1977), that revealed the following two copies and, in pertinent part: * Copy 2 – * item 9c (Authority and Reason) – * "AR 635-200, SPN 246" * "DOD [Department of Defense] DISCHARGE REVIEW PROGRAM (SPECIAL), SEPARATION PROGRAM DESIGNATOR CODE KCR" * item 9e (Character of Service): "HONORABLE" * item 9f (Type of Certificate Issued): "DD FORM 257A" [Honorable Discharge Certificate] * Copy 4 (VA Copy) – * item 9c, the entry, "--------------" * item 9e: "HONORABLE" * item 9f: "DD FORM 257A" * item 27 (Remarks) – * "UPGRADED UNDER THE DOD DISCHARGE REVIEW PROGRAM (SPECIAL)" * "DATE APPLIED FOR DISCHARGE UPGRADE: 17 MAY 1977" * "DATE DISCHARGE WAS UPGRADED: 23 JUNE 1977" * CHARACTER OF SERVICE PRIOR TO UPGRADE: UNDER OTHER THAN HONORABLE CONDITIONS" 17. On 15 June 1978, the Army Discharge Review Board (ADRB) reviewed the applicant's 10 November 1972 discharge UP Public Law (PL) 95-126, enacted 19 January 1977, and a determination was made that the characterization of service was warranted UP DoD Special Discharge Review Program (SDRP), dated 4 April 1977. 18. On 19 June 1978, the ADRB provided the applicant a copy of the case report and directive of the final determination of his case. He was also informed that the ADRB could not affirm his DoD-SDRP upgraded discharge under review standards required by PL 95-126. The letter served as unofficial notification of the ADRB's decision. 19. A DD Form 215 (Correction to DD Form 214), issued on 18 July 1978, shows item 27 (Remarks) of the applicant's 10 November 1972 DD Form 214 was corrected to add the following entry, "DISCHARGE REVIEWED UP PL 95-126 AND A DETERMINATION MADE THAT CHARACTERIZATION OF SERVICE WAS WARRANTED UP DOD SDRP, 4 APRIL 1977." 20. On 2 August 1978, The Adjutant General of the Army advised the applicant that the previous upgrading of his discharge had been re-reviewed by the ADRB as required by PL 95-126. As a result of the review, the ADRB determined the applicant did not qualify for upgrading under the new uniform standards for discharge review. Accordingly, the upgraded discharge under the "DoD Discharge Review Program (Special)" was not affirmed. He was also provided a copy of a DD Form 215 and advised that the DD Form 215 "in no way changes or modifies the upgraded discharge you previously received. However, because of a new law, you will not be able to use that discharge to qualify for benefits under the Veterans Administration." 21. In support of his application the applicant provides copies of his VA medical records that show, in pertinent part, diagnoses of depression and PTSD. 22. In the processing of this case, an advisory opinion was obtained from the medical staff of the Army Review Boards Agency (ARBA), dated 27 April 2017. a. The ARBA staff psychiatrist reviewed the applicant's military personnel records, available service treatment records, and documentation provided by the applicant, including his VA medical records. b. She found that the applicant was diagnosed with depression and PTSD by the VA, and that he is actively engaged in treatment for the conditions. The VA granted him a rating of 70 percent for service-connected PTSD. c. The medical advisor found no evidence in the applicant's military medical records that indicates he failed to meet medical standards in accordance with (IAW) AR 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement). d. She noted the lack of documentation of PTSD symptoms does not necessarily indicate that the applicant did not have PTSD while in the military. She elaborated on the applicant's radical change in behavior (i.e., going from an outstanding Soldier who served in Vietnam to a poor performing Soldier who developed a drug problem and attempted suicide). She stated that this type of change in behavior is not uncommon in Soldiers suffering from PTSD. She opines that it is more likely than not that the applicant suffered from undiagnosed PTSD while on active duty. She stated, "Because PTSD can be associated with avoidant behaviors, there is a likely nexus between the applicant's PTSD and the offenses of being AWOL and breaking restriction. Because PTSD is associated with the use of substances to self-medicate symptoms, there is likely a nexus between the applicant's PTSD and the offense of possessing a hypodermic syringe. PTSD is considered mitigation for these offenses. PTSD, however, is not mitigating for the offenses of possessing a pistol or threatening to kill a Soldier." 23. On 27 April 2017, 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 under other than honorable conditions (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. AR 635-40 sets forth policies, responsibilities, and procedures in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Separation by reason of disability requires processing through the disability evaluation system. 9. AR 635-200 sets forth the basic authority for the separation of enlisted Soldiers. 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 UP this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. A UDC 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. 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. Paragraph 2-11 states that applicants do not have a right to a hearing before the ABCMR. The Director of the ABCMR or the chair of an ABCMR panel may grant a formal hearing whenever justice requires. DISCUSSION: 1. The applicant contends that his discharge should be upgraded based on a diagnosis of PTSD. 2. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is considered sufficient to render a fair and equitable decision at this time. 3. Records show the applicant served honorably on active duty during the period 7 October 1966 through 13 May 1969, which included service in Vietnam. He then had a period of honorable active duty from 18 November 1969 through 21 July 1970. He reenlisted in the RA on 22 July 1970 and he served in Vietnam from 9 November 1970 through 9 March 1971. 4. The evidence of record shows the applicant's record of misconduct began after he reenlisted, served in Vietnam, and was reassigned to Fort Benning, GA. 5. On 16 June 1972, the applicant requested discharge in lieu of trial by court-martial. On 10 November 1972, he accepted a UDC with a characterization of service of UOTHC. 6. The ADRB reviewed (and re-reviewed) his discharge under the DoD SDRP and PL 95-126, affirmed the type of discharge and the characterization of service, and issued him a DD Form 215 confirming the outcome of the review. 7. The evidence of record shows he experienced wartime events during the period of service under review. 8. At the time of the applicant's discharge, PTSD was largely unrecognized by the medical community and DoD. However, both the medical community and DoD now have a more thorough understanding of PTSD and its potential to serve as a causative factor in a Soldier's misconduct when the condition is not diagnosed and treated in a timely fashion. 9. Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible recharacterization of their overall service. a. The applicant has been diagnosed with service-connected PTSD. b. On 26 April 2017, the ARBA staff psychiatrist opined that the applicant's drug use and subsequent PTSD diagnosis are strong indicators that he was experiencing PTSD symptoms at the time of his separation. Thus, the symptoms could mitigate some of his misconduct (i.e., breaking restriction, AWOL, and possession of a hypodermic syringe), which led to his separation from the Army. However, PTSD is not mitigating for his offenses of possessing a pistol or threatening to kill a Soldier. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160015475 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160015475 13 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2