DEPARTMENT OF THE ARMY ARMY REVIEW BOARDS AGENCY 251 18TH STREET SOUTH, SUITE 385 ARLINGTON, VA 22202-3531 SAMR-RB 21 October 2016 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for 1 . Reference the attached Army Board for Correction of Military Records of Proceedings, dated 25 Aug 2016, in which the Board members unanimously recommended denial of the applicant's request 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant partial relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army records of the individual concerned be corrected by reissuing the applicant's DD Form 214 for the period ending 10 January 1967 to show the characterization of service as "General, Under Honorable Conditions." 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 21 February 2017. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: CF: ( ) OMPF BOARD DATE: 25 August 2016 DOCKET NUMBER: AR20150004822 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: 25 August 2016 DOCKET NUMBER: AR20150004822 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that 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: 25 August 2016 DOCKET NUMBER: AR20150004822 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, in effect, an upgrade of his clemency discharge (under other than honorable conditions (UOTHC) discharge) to a general discharge (GD) or correct his record to show he was medically retired. 2. The applicant states his previous ABCMR case, in which he requested an upgrade of his undesirable discharge (UD) to a GD or honorable discharge (HD), contains errors. 3. The applicant provides medical records from the Department of Veterans Affairs, DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), several letters of support, and documents pertaining to his post-service accomplishments. 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 24 September 1963. He was awarded military occupational specialty (MOS) 63A on 7 February 1964; however, on 19 November 1964, he was awarded primary MOS 11B and MOS 63A became his secondary MOS. The highest rank he attained while serving on active duty was specialist four/E-4. 3. His principle duties were a wheeled vehicle mechanic from 2 March to 15 June 1964, while assigned to Fort Campbell, KY. However, the available evidence does not show he was awarded this MOS. 4. His Enlisted Qualification Record (DA Form 20) shows he served in the Republic of Vietnam (RVN) from 8 July 1965 through 14 June 1966 and his principal duties were ammunition bearer and machine gunner. 5. His disciplinary record shows he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 18 July 1964 for conduct unbecoming a Soldier and on 4 June 1965 for failing to go to his appointed place of duty at the prescribed time. 6. His DA Form 20B (Insert Sheet to DA Form 20 (Enlisted Qualification Record)) shows he had three convictions by courts-martial on the following occasions: * 20 June 1964, for violating a general regulation and wrongfully appropriating a vehicle * 18 October 1964, for violating a general regulation and wrongfully appropriating money * 5 December 1966, for being absent without leave from on or about 14 August to 16 October 1966 7. His separation packet is not available for review; however, his DD Form 214 shows he was separated under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness. He was assigned a UOTHC character of service and Separation Program Number 28B (unfitness, frequent involvement in incidents of a discreditable nature with civil or military authorities). Item 25 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows he was awarded the Vietnam Service Medal, Parachutist Badge, National Defense Service Medal, Combat Infantryman Badge, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar. 8. He did not provide and his available records do not contain any evidence to show medical authorities found him unfit for military service or that he had a medical condition or conditions to raise substantial doubt as to his ability to continue to perform the duties of his office, grade, rank, or rating. Additionally, there is no evidence that he underwent a medical evaluation board or a physical evaluation board. 9. There is no evidence in the available records to show he applied to the Army Discharge Review Board for an upgrade of his discharge. 10. On 18 March 1976, the applicant was notified that he had received a Clemency Discharge pursuant to Presidential Proclamation (PP) Number 4313 of 16 September 1974. 11. The Board requested and the Office of The Surgeon General (OTSG) provided an advisory opinion on 11 July 2016 in the processing of this case. An OTSG official referenced the Diagnostic and Statistical Manual-5, Army Regulation 40-501 (Standards of Medical Fitness), with rapid revision, dated 4 August 2011, and Army Regulation 635-200, dated 6 September 2011. The opinion stated, in part: a. The applicant's first documented contact with Behavioral Health (BH) was at the VA in 2005 where he was diagnosed with depression in March (2005) and posttraumatic stress disorder (PTSD) in June (2005). From July through August 2005, he completed an eight-week residential PTSD program where he actively participated and was observed to have noticeably improved. During this time he talked about combat stressors and struggling with posttraumatic symptoms. b. In view of his combat experience in the infantry and his positive response to treatment, it is more likely than not that he met the criteria for PTSD at the time of separation. As to the question of whether this might have mitigated his misconduct, it is less likely as his first court-martial pre-dated his tour in Vietnam. 12. In response to the advisory opinion, the applicant stated, in part, that he accepted responsibility for his misconduct and still has remorse from his service in Vietnam. 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 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 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." 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 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. a. Criterion A – Stressor: The person was exposed to: death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence, as follows (one required): (1) direct exposure; (2) witnessing, in person; (3) indirectly, by learning that a close relative or close friend was exposed to trauma. If the event involved actual or threatened death, it must have been violent or accidental; or (4) repeated or extreme indirect exposure to aversive details of the event(s), usually in the course of professional duties (e.g., first responders collecting body parts, professionals repeatedly exposed to details of child abuse). This does not include indirect non-professional exposure through electronic media, television, movies, or pictures. b. Criterion B – Intrusion Symptoms: The traumatic event is persistently re-experienced in the following way(s) (one required): (1) recurrent, involuntary, and intrusive memories; (2) traumatic nightmares; (3) dissociative reactions (e.g., flashbacks) which may occur on a continuum from brief episodes to complete loss of consciousness; (4) intense or prolonged distress after exposure to traumatic reminders; or (5) marked physiologic reactivity after exposure to trauma-related stimuli. c. Criterion C – Avoidance: Persistent effortful avoidance of distressing trauma-related stimuli after the event (one required): (1) trauma-related thoughts or feelings or (2) trauma-related external reminders (e.g., people, places, conversations, activities, objects, or situations). d. Criterion D – Negative Alterations in Cognitions and Mood: Negative alterations in cognitions and mood that began or worsened after the traumatic event (two required): (1) inability to recall key features of the traumatic event (usually dissociative amnesia; not due to head injury, alcohol, or drugs); (2) persistent (and often distorted) negative beliefs and expectations about oneself or the world (e.g., "I am bad," "The world is completely dangerous"); (3) persistent distorted blame of self or others for causing the traumatic event or for resulting consequences; (4) persistent negative trauma-related emotions (e.g., fear, horror, anger, guilt, or shame); (5) markedly diminished interest in (pre-traumatic) significant activities, feeling alienated from others (e.g., detachment or estrangement); and (6) constricted affect, persistent inability to experience positive emotions. e. Criterion E – Alterations in Arousal and Reactivity: Trauma-related alterations in arousal and reactivity that began or worsened after the traumatic event (two required): (1) irritable or aggressive behavior; (2) self-destructive or reckless behavior; (3) hypervigilance; (4) exaggerated startle response; (5) problems in concentration; and (6) sleep disturbance. f. Criterion F – Duration: Persistence of symptoms (in Criteria B, C, D, and E) for more than 1 month; g. Criterion G – Functional Significance: Significant symptom-related distress or functional impairment (e.g., social, occupational); and h. Criterion H – Exclusion: Disturbance is not due to medication, substance use, or other illness. 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 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. 5. 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. 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 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. 8. Presidential Proclamation 4313, issued on 16 September 1974, provided for the issuance of a clemency discharge to members of the Armed Forces who were in an unauthorized absence status and certain former Soldiers who voluntarily entered into and completed an alternate restitution program specifically designed for former Soldiers who received a less than honorable discharge for AWOL-related incidents between August 1964 and March 1973. 9. Alternate service was to be performed under the supervision of the SSS. When the period of alternate service was completed satisfactorily, the SSS would notify the individual's former military service. The military services issued the actual clemency discharges. The clemency discharge is a neutral discharge, neither honorable nor less than honorable. The clemency discharge did not affect the underlying discharge and did not entitle the individual to benefits administered by the VA. Soldiers who were AWOL entered the program by returning to military control and accepting a discharge for the good of the service in lieu of trial by court-martial. 10. Army Regulation 635-212, in effect at the time, set forth the policy for administrative separation for unfitness. It 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. This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge. 11. Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), 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. 12. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, establishes the Physical Disability Evaluation System (PDES). This regulation sets forth policies, responsibilities, and procedures for the retention, retirement, or separation of a member who is determined to be unfit to perform the duties of his office, grade, rank or rating because of physical disability. a. Paragraph 2-1 states the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case considered, it is necessary to correlate the nature and degree of physical disability, which is present with the requirements of the duties, which the member reasonably may be expected to perform by virtue of his office, grade, rank, or rating. b. Paragraph 4-6 provides for medical boards, which are appointed by the commander of a Medical Treatment Facility for the purpose of assisting in the determination of medical fitness, mental competence, mental responsibility, and disposition of patients. c. Paragraph 4-7 states medical boards make a determination regarding the member's qualification for retention on the basis of criteria set forth in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness). d. Paragraph 4-8 states the medical board will recommend referral of members who do not meet medical retention standards to a PEB. A member being processed for nondisability separation will not be referred to a PEB unless he has a medical impairment or impairments, which raises substantial doubt as to his ability to continue to perform the duties of his office, grade, rank, or rating. e. Paragraph 4-13 states the voting members of a PEB will determine the findings and recommendations based on the following aspects of the case. The vote of the majority will be controlling. The board will determine whether the member is fit or unfit by reason of physical disability. If the PEB finds that a member is physically unfit for military service, the board must then determine whether the member is eligible for physical disability retirement or severance pay. 13. Title 10, USC, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. DISCUSSION: 1. The applicant's discharge for unfitness was conducted in accordance with the law and regulations in effect at the time. The characterization of his service was commensurate with the reason for discharge and his overall record of military service in accordance with the governing regulations in effect at the time. 2. 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. Soldiers who developed PTSD as a result of a traumatic wartime event and were subsequently separated solely for misconduct are candidates for consideration for the possible re-characterization of their overall service. 3. A review of the applicant's record shows that he was subjected to the ordeals of war while serving in the RVN. Subsequent to these experiences, medical evidence shows he was diagnosed with PTSD or PTSD-related symptoms by a competent mental health professional. 4. His record contains multiple instances of misconduct for which he was punished prior to and subsequent to his service in the Republic of Vietnam; however, an OTSG official found that, in view of his combat experience in the infantry and his positive response to treatment, it was more likely than not that he met the criteria for PTSD at the time of separation. 5. There is no way to determine if his PTSD condition was a causative factor in the misconduct leading to his UOTHC discharge. After carefully weighing that fact against the severity of his misconduct, there is sufficient mitigating evidence to warrant an upgrade of the characterization of service to a GD. 6. There is no evidence in his records, and he did not provide any evidence, which shows he suffered from any illness or an injury (at the time of his discharge) that rendered him unable to perform the duties required of his grade and military specialty, or any evidence that would have warranted his entry into the PDES. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150004822 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150004822 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2