BOARD DATE: 7 June 2016 DOCKET NUMBER: AR20150003127 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: 7 June 2016 DOCKET NUMBER: AR20150003127 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: 7 June 2016 DOCKET NUMBER: AR20150003127 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 request upgrade of his under other than honorable conditions discharge to honorable. 2. The applicant states, in effect: * when he was growing up, his mother had a friend who took him under his wing; he taught him a lot about life * the friend had served in the Army and was wounded while in Africa; the influence of this friend was such that he wanted to be like him, and he decided to join the Army, with the intent of making it a career * following basic combat training, he attended advanced individual training (AIT) for military occupational specialty (MOS) 440.00 (Sheet Metal Working Helper); he was able to do the work, but could not pass the tests * he was moved to the AIT for MOS 630.00 (Automotive Maintenance Helper), but as with the previous MOS, he was able to do the work but not pass the tests * he was then transferred and completed infantry training, after which he was reassigned to Korea * while he was in Korea, he accidently shot a fellow Soldier; following this incident he lost all interest in doing a good job, and he began to drink heavily * he was court-martialed and found guilty of accidently discharging a weapon such as to endanger human life; he was reduced in rank and fined $165 * after his court-martial, his fellow Soldiers shunned him; he left Korea and was reassigned to a unit at Fort Ord, CA * after his first week, he went on pass to Oakland, CA; he stayed gone for some time; he does not think he was sober for more than a few hours * he turned himself in and was sent back to Fort Ord; he went on pass again, returned once more to Oakland, and repeated his drinking and absence * after about 65 days, he was dropped from the company rolls for desertion * he turned himself in a second time, and was returned once more to Fort Ord; this time he was sent to the stockade * he was sentenced to 6 months; after 2 or 3 months, he was asked if he wanted to return to active duty; he replied he would, but only if he could serve overseas * because he had but a short time remaining in the service, a reassignment overseas was not possible * after his discharge, he hitchhiked around the country for a couple of years; he stayed in one location just long enough to earn the money needed to move to a new location * he went through numerous relationships, but it was always the same; his rough ways and drinking ensured they would not last * he continues to have regrets, and wishes things were different; sometimes he still wants to just up and leave, even though it would also mean leaving the one person he loves 3. The applicant defers his evidence to counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel, a Veterans Services Organization representative, requests upgrade of the applicant's discharge under other than honorable conditions to honorable. 2. Counsel states, in effect: a. The applicant joined the Regular Army voluntarily. His service was exceptional, as evidenced by high aptitude tests. Additionally, a review of his DA Form 24 (Service Record), Section 4 (Chronological Record of Military Service), shows ratings of "Excellent" and "Good." b. A tragic event occurred that ultimately resulted in his discharge. He described it as follows to counsel: On December 11, 1960, I was on guard duty and walking around the Mess Hall and POL (Petroleum, Oil, and Lubrication) Dump. Someone came in and I challenged him. He said, "You know who I am." I challenged him again. I had my weapon cocked and ready to shoot. I barely touched the trigger - I didn't mean to. I shot him. I don't remember much after that. I just went numb. Things seemed surreal. The Top Kick told them to give me a shot. They took me and put me at his desk. He had lost his company, he was one of the few that survived. He understood the shock. I remember on his desk there was a cut out that said “the hardest battle in life is the battle against yourself, may God grant you victory.” That stuck in my mind and I have used it in my life since. Everything besides that is a blur. c. The applicant suffers from post-traumatic stress disorder (PTSD), although no such diagnosis was available at the time of the incident. * research has now identified biochemical changes that occur when people are faced with death or serious injury * one can imagine the applicant felt grief and remorse following this accident, and what occurred weighed on him heavily * the hypothalamic-pituitary-adrenal axis is altered for individuals with PTSD * Department of Veterans Affairs (VA) research documents a link between PTSD and neurobehavioral changes; PTSD affects brain chemistry and has been linked to many adverse health outcomes d. The applicant described the ongoing fear of military conflict and terrorist threats when he was stationed in Korea. The Korean War ended in 1955, but hostilities have continued to the present day. The Secretary of Defense acknowledged the impact of PTSD for Service members in his memorandum dated 3 September 2014. e. Imagine the young applicant, alone on guard duty during a turbulent time. The First Republic in Korea had been overthrown, and this event created a lot of hostility toward American Soldiers. f. The traumatic incident experienced by the applicant meets Criterion A for PTSD, as outlined in the Diagnostic and Statistical Manual of Mental Disorders (DSM) [Criterion A, stressor - The person was exposed to: death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence by direct or indirect exposure, or by witnessing the event]. (1) People with PTSD also have a sense of a limited future. This was evidenced in the applicant's statement that a poor discharge would not affect his civilian life. (2) Those with PTSD have feelings of detachment or display the inability to have loving feelings. The applicant had marital difficulties that led to his long absence without leave (AWOL). (3) The applicant began to abuse alcohol, also consistent with behaviors associated with PTSD. g. The applicant affirms that he started having trouble after the incident. He states: "Things were in a blur after that date. I did my daily activities. I started drinking to medicate the symptoms and grief I felt. I was just numb. I didn't feel anything. A lot of times, to this day, I could care less about things." h. The court-martial document dated 2 February 1961 [referring to Special Court-Martial Order (SPCMO) Number 3, issued by Headquarters, 2nd Battle Group, 3rd Infantry (The Old Guard)] strongly suggests the applicant accidently discharged his weapon, and felt extreme sorrow and grief. i. The applicant's military record provides further indications of the distress he felt as a result of the incident. He was AWOL from 8 May 1961 to 10 July 1961. He states, after leaving Korea, he was assigned to a unit at Fort Ord, CA. While there, he went home to see his wife. When he got there, he found she was being unfaithful. His reaction was to go to the local bar. He became AWOL, but eventually turned himself in to military authority. j. After returning to military control, he was confined. He asked to be sent overseas. Instead, a court-martial sentenced him to 6 months at hard labor. As an indication he was being compliant with requirements, 3 months of his sentence were remitted. k. While the record states he wanted to be released from the Army, in reality he simply wanted to be sent overseas again. He believed a reassignment overseas would give him a better chance to be a good Soldier. l. While the applicant's behaviors were negative, it is worth noting they are consistent with the adult anti-social behaviors typically found in Veterans with PTSD. 3. Counsel provides * five letters of support * VA Form 21-0781 (Statement in Support of Claim for Service Connection for PTSD), dated 7 November 2013 * letter from the National Personnel Records Center, dated 16 April 2014 * eight pages extracted from personnel records * SPCMO Number 3, dated 2 February 1961 * SPCMO Number 456, dated 31 July 1961 * SPCMO Number 158, dated 225 October 1961 * Standard Form (SF) 88 (Report of Medical Examination), dated 17 October 1961 * SF 89 (Report of Medical History), dated 17 October 1961 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 27 October 1961 * Army Discharge Review Board (ADRB) documents, dated between July to October 1962 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 6 August 1959. Following initial training, he was awarded MOS 111.00 (Rifleman). He was assigned to a unit in Korea. 3. While in Korea, he was tried by a special court-martial. SPCMO Number 3, dated 2 February 1961, issued by Headquarters, 2nd Battle Group, 3rd Infantry (Old Guard), shows: a. One violation of Article 134 (General Article), Uniform Code of Military Justice (UCMJ), by wrongfully and willfully discharging a .30 caliber carbine rifle under circumstances as to endanger human life. b. Consistent with his plea, he was found guilty of a modified version of the charge, substituting "wrongfully and willfully" discharging the rifle "under such circumstances to endanger human life" with "through carelessness, discharged" a .30 caliber carbine rifle. c. The court adjudged the sentence on 30 January 1961, and it consisted of forfeiture of $55 per month for 3 months and reduction to private/E-1. d. The sentence was approved by the convening authority on 2 February 1961 4. He was reassigned to a unit at Fort Ord in or around April 1961. While at Fort Ord, he was tried by another special court-martial. SPCMO Number 456, dated 31 July 1961, issued by Headquarters, Special Troops, U.S. Army Garrison, shows: a. Two violations of Article 86 (AWOL), UCMJ: * AWOL from 8 May 1961 to 10 July 1961 - pled guilty, found guilty * AWOL from 15 July 1961 to 17 July 1961 - pled guilty, found guilty b. The sentence was adjudged on 27 July 1961, and consisted of confinement at hard labor for 6 months and a forfeiture of $55 per month for 6 months. c. The convening authority approved the sentence on 31 July 1961. 5. SPCMO Number 158, dated 25 October 1961, issued by Headquarters, Special Troops, U.S. Army Garrison, indicated the unexecuted portion of the sentence to confinement at hard labor was suspended for 3 months, at which time, unless sooner vacated, it would be remitted. 6. The applicant’s discharge packet is not available for review. However, his service record contains a DD Form 214. It reflects his discharge on 27 October 1961 was under other than honorable conditions. It also shows he: * completed 1 year, 9 months, and 7 days of total active service, with 168 days of lost time * was awarded or authorized the Marksman Marksmanship Qualification Badge with Rifle Bar * was separated under the provisions of Army Regulation 635-208 (Personnel Separations - Discharge - Unfitness); Separation Program Number 28B (Involved in Frequent Incidents of a Discreditable Nature with Civil or Military Authorities) 7. On 13 August 1962, he applied to the ADRB, requesting an upgrade of his discharge to general under honorable conditions. On 17 October 1962, the ADRB denied his request. 8. On 6 March 1963, he again applied to the ADRB and requested a personal appearance before the board for a review of his discharge. The record does not show the outcome of this request. 9. On 9 March 1981, he reapplied to the ADRB for a personal appearance and review of his discharge. He attended a hearing in San Francisco, CA with counsel and presented matters in his own behalf in the form of sworn testimony. After considering all evidence in the record, the applicant's exhibits and contentions, and the applicant's sworn testimony, the board concluded the applicant's separation was proper. 10. The applicant provides five letters of support, dated between 2013 and 2014. The letters are from friends and coworkers. One letter is from a former supervisor. All describe him in very positive terms as honest, hardworking, and personable. Where it is addressed, the letters indicated he no longer drinks alcohol. 11. On 27 March 2015, the Case Management Division, Army Review Boards Agency, requested the applicant support his assertion of having PTSD with medical documentation showing he has been diagnosed with this condition. He was given 90 days to provide a response The applicant has not provided a response. REFERENCES: 1. Army Regulation 635-208, in effect at the time, set forth the policy for the administrative separation of enlisted personnel for unfitness. Paragraph 3 of the regulation provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: * frequent incidents of a discreditable nature with civil or military authorities * sexual perversion * drug addiction * an established pattern of shirking; and/or * an established pattern showing dishonorable failure to pay just debts 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) provides policy and procedures for the separation of enlisted personnel. a. Paragraph 3-7a states that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. b. Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider 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. The Boards were to determine if it would be appropriate to upgrade the characterization of the applicant's service based on the revised PTSD criteria, detailed medical considerations, and mitigating factors. 4. BCM/NRs are not courts, nor are they investigative agencies. Therefore, the determinations should 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 was warranted, the following factors were to be carefully considered: * was it reasonable to determine that PTSD or PTSD-related conditions existed at the time of discharge? * did the applicant's record contain documentation of the occurrence of a traumatic event during the period of service? * did 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? * did 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? 5. Although 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 presumed that they were properly discharged based upon the evidence that was available at the time. a. Conditions documented in the record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which PTSD or PTSD-related conditions may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the under other than honorable conditions characterization of service. b. Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of under other than honorable conditions. Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. c. Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. 6. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. c. The ABCMR considers individual applications that are properly brought before it. The ABCMR may, in its discretion, hold a hearing or request additional supporting documentation or opinions. It states further, in paragraph 2-11, that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. The Board considered the applicant's request for a personal appearance; however, by regulation an applicant is not entitled to a hearing before the Board. The Director of the ABCMR, or a panel of the Board, can authorize a personal appearance. In this case, the evidence of record is sufficient to render a fair and equitable decision at this time. 2. Neither DoD nor the medical community recognized PTSD at the time of his discharge. Both have since come to a more thorough understanding of PTSD, and its potential to serve as a causative factor in a Soldier's behavior. While his self-described reactions, abuse of alcohol, and periods of AWOL might appear consistent with symptoms typically associated with PTSD, he provides no proof that a behavioral health provider credentialed to affirm a diagnosis of PTSD ever provided such a diagnosis and that his PTSD, thus diagnosed, resulted from the incident in question. 3. His service record contains a DD Form 214, but his discharge packet is not available for review. Based on the available evidence, the applicant's separation processing appears to have been accomplished in accordance with the applicable laws and regulations in effect at the time. Absent evidence to the contrary, the Board presumes administrative regularity. It is worth noting the ADRB reviewed his discharge on two separate occasions. On the most recent (1981), the applicant personally appeared before the ADRB with counsel. Each review by the ADRB determined his discharge was proper. There is no evidence of error or injustice in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150003127 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150003127 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2