BOARD DATE: 15 March 2018 DOCKET NUMBER: AR20170016767 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 reissuing his DD Form 214 to show the character of his service as general under honorable conditions. 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 upgrading his discharge to fully honorable. 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: 15 March 2018 DOCKET NUMBER: AR20170016767 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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: 15 March 2018 DOCKET NUMBER: AR20170016767 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 (UOTHC) to honorable due to severe post-traumatic stress disorder (PTSD). 2. The applicant states his discharge is unjust because he served honorably in combat in Vietnam. When he was told he was going back to Vietnam, he couldn't force himself to go. He had seen so much death and he barely made it back himself. He lost too many friends. He hasn't been able to work since he has been home. He did what was asked of him and more. 3. The applicant provides: * DD Form 214 (Report of Separation from Active Duty) * Department of Veterans Affairs (VA) Form 21-0960P-3 (Review PTSD Disability Benefits Questionnaire) 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 27 February 1970 for a period of 3 years. 3. He departed the continental United States en route to Vietnam on 26 July 1970. On 31 July 1970, he was assigned for duty as a scout observer to Troop A, 3d Squadron, 4th Cavalry Regiment, 25th Infantry Division. On 24 November 1970, he was reassigned for duty as an automatic rifleman to Troop C, 7th Squadron, 1st Cavalry Regiment. 4. On 16 November 1971, nonjudicial punishment was imposed against him for failing to go at the time prescribed to his appointed place of duty. 5. He was further reassigned for duty as an armor reconnaissance specialist to Troop F, 17th Cavalry Regiment, on 28 December 1971. He departed Vietnam on or about 25 February 1972. 6. On 2 March 1973, he was convicted by a special court-martial of being absent without leave (AWOL) for the following periods: * 6 March 1972 to 14 April 1972 * 15 May 1972 to 14 September 1972 * 13 November 1972 to 7 December 1972 7. He was sentenced to reduction to the rank/pay grade of private/E-1, forfeiture of $50.00 pay per month for 5 months, and confinement at hard labor for 50 days. On 28 March 1973, the court-martial convening authority approved the sentence, but suspended that portion of the sentence adjudging confinement at hard labor in excess of 10 days for 6 months or until the applicant's separation from the service, unless the suspension was sooner vacated. 8. On 21 November 1973, court-martial charges were preferred against him for being AWOL from on or about 4 June 1973 until on or about 16 November 1973. 9. On 27 November 1973, he underwent a separation physical examination and was found qualified for separation. Item 42 (Psychiatric) of his Standard Form 88 (Report of Medical Examination), dated 27 November 1973, shows he was rated normal. 10. He consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He indicated he understood he might be discharged UOTHC and given an undesirable discharge, he might be ineligible for many or all benefits administered by the VA, he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws. He acknowledged he might expect to encounter substantial prejudice in civilian life because of an undesirable discharge. He elected not to make a statement in his own behalf. 11. On 28 December 1973, the separation authority approved his voluntary request for discharge and directed the issuance of an Undesirable Discharge Certificate. 12. On 9 January 1974, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. He completed 2 years, 9 months, and 2 days of creditable active service and he accrued 408 days of lost time. His service was characterized as UOTHC. 13. There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 14. He provided a VA Form 21-0960P-3, dated 4 August 2017, showing he was diagnosed with severe, chronic PTSD by the examining psychiatrist. 15. An advisory opinion was rendered by the Army Review Boards Agency Psychiatrist, dated 14 December 2017, who states: a. There is no indication in the applicant's military records that he failed to meet military medical retention standards. b. His military records are void of documentation of any PTSD symptoms. This fact does not necessarily mean the applicant did not have PTSD while serving on active duty. In the era of the applicant's military service, PTSD symptoms were frequently not recognized. Oftentimes, in these cases, the presence of PTSD has to be inferred from behavioral indicators. Such is the case with this applicant. A review of the applicant's military records indicates that while he was deployed to Vietnam, he performed well as evidenced by his conduct and efficiency ratings (which ranged between "excellent" and "good") and his award of the Army Commendation Medal. After returning to the continental United States, however, his behavior and performance radically changed, with the applicant being AWOL multiple times in an effort to avoid military duty. Disillusionment with the military, as evidenced by his statement, and difficulty adjusting to garrison life after being in a war zone are commonly seen in Soldiers who are suffering from PTSD. This disillusionment and difficulty readjusting often results in Soldiers with PTSD being AWOL in an attempt to avoid reminders of their military traumas. Such appears to be the case with regard to this applicant. c. The applicant's military medical records do support a PTSD diagnosis at the time of his discharge. d. His medical records indicate he met medical retention standards. e. His diagnosis of PTSD is a mitigating factor in his misconduct. f. As PTSD is associated with avoidant behaviors, there is a nexus between the applicant's PTSD and his multiple offenses of AWOL. 16. A copy of this advisory opinion was provided to the applicant for comment and/or rebuttal. He did not respond. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel. a. 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. 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. c. 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. d. 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. 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. a. 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." b. 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. 3. 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 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 Soldiers' 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 a 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. 4. On 3 September 2014 in view of the foregoing information, 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 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 applicants' service. 5. 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? 6. 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 records 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. BCM/NRs 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. BCM/NRs 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. 7. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by veterans for modification of their discharges due, in whole or in part, to: mental health conditions, including PTSD, traumatic brain injury, sexual assault, or sexual harassment. Boards are to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on those conditions or experiences. The guidance further describes evidence sources and criteria and requires boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. DISCUSSION: 1. The applicant's record of service included one nonjudicial punishment for failing to go at the time prescribed to his appointed place of duty and one special court-martial conviction for three AWOL periods. Court-martial charges were additionally preferred against him for being AWOL from on or about 4 June 1973 until on or about 16 November 1973. 2. His voluntary request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations. He had an opportunity to submit a statement wherein he could have voiced his concerns; however, he elected not to do so. 3. The type of discharge directed and the reason for his discharge were appropriate in accordance with Army policies in effect at the time of his separation. 4. His diagnosis of PTSD by the VA in 2017 is acknowledged. 5. 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. 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. This Board is to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based, in whole or in part, on mental health conditions, including PTSD. 6. The Army Review Boards Agency Psychiatrist determined: a. The applicant's military medical records do support a PTSD diagnosis at the time of discharge. b. His diagnosis of PTSD is a mitigating factor in his misconduct. c. As PTSD is associated with avoidant behaviors, there is a nexus between the applicant's PTSD and his multiple offenses of AWOL. 7. 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. 8. 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 (cont) AR20170016767 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170016767 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2