SAMR-RB 22 November 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, AR20150006429 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 15 September 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 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 a DD Form 214 showing his 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 22 March 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: Encl ' Deputy Assistant Secretary of the Army (Review Boards) CF: ( ) OMPF BOARD DATE: 15 September 2016 DOCKET NUMBER: AR20150006429 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: 15 September 2016 DOCKET NUMBER: AR20150006429 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 to amend the decision of the ABCMR set forth in Docket Number AC98-09872, on 4 November 1998. ____________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: 15 September 2016 DOCKET NUMBER: AR20150006429 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 reconsideration of his earlier request for an upgrade of his undesirable discharge. He also requests a personal hearing. 2. As a new issue, he requests reimbursement for money that was not paid during his service from 1951 to 1954. 3. The applicant states: * when he returned home from combat in 1953, the military lost his pay records and to date, he still has not been paid * while he was waiting to be paid, he was involved in a minor joyriding incident and he was sent to jail for 6 months * while he was in jail, he suffered post-traumatic stress disorder (PTSD) symptoms * he was told to sign some papers to get out of jail; he did so without representation or discussion as to the ramifications of requesting an undesirable discharge * since his discharge in 1954, his character has been impeccable and with honor; thus, he is requesting an honorable discharge * he accepted 6 months of punishment and subsequent discharge; he was not advised of the medical ramifications and continued to plead his case for treatment of PTSD with the Department of Veterans Affairs (VA) * he requests a change to his characterization so he may move his PTSD claim forward * his discharge currently reads dishonorable; he received an undesirable discharge and wants to know why it reads dishonorable * he makes his request per the Secretary of Defense's memorandum regarding PTSD * he served his country with honor and his military record should reflect such honor * he should be reimbursed the combat pay for his service and the excuse of "lost records" is not good enough 4. The applicant provides: * May 2014 statement from a psychiatrist * September 2013 statement from a psychiatrist * February 2015 statement from his brother * March 2015 statement from a friend * April 2015 statement from a service organization representative * Photograph * DOD Supplemental Guidance memorandum * April 2015 Statement from a lawyer * February 2015 statement from a pastor COUNSELS' REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests reconsideration of the applicant's earlier request for an upgrade of his undesirable discharge. 2. Counsel states: a. His firm conducted a records review in concern of the applicant and this legal opinion supports his request for reconsideration of a previous discharge review application. It is counsel's view that medical documentation demonstrates that the applicant does indeed suffer from service-connected PTSD as a result of his service in the Korean War. For that reason, he should qualify for reconsideration under revised guidelines promulgated by the Secretary of Defense. b. On 16 October 1954, the applicant received an undesirable discharge. He is presently unemployed. He has been given a PTSD diagnosis by a psychiatrist at the UCLA Neuropsychiatric Institute and Hospital. He is also providing, with assistance, letters of good character and post-service accomplishments. c. The revised September 2014 guidance from the Secretary of Defense acknowledges the pernicious effect of PTSD on the quality of life for combat veterans. It also acknowledges the challenges that veterans and this Board encounter in establishing a nexus between the PTSD and misconduct that led to discharge. He (counsel) is mindful that in creating a 15-year statute of limitations under 10 U.S.C. 1553, Congress expressly wanted this Board to liberally upgrade discharges. Other boards have expressly written that the 15-year window was established to allow time for establishing oneself in the community and for making substantial, documented life style changes and community contributions. d. It is counsel's view that the applicant has spent over 6 decades living with PTSD at great degradation to his quality of life. Regardless of the circumstances that led to his discharge, he has made amends and demonstrated that his undesirable discharge is not representative of his character as a human being. In the interest of equity, the Board should upgrade his discharge to an appropriate characterization. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records, which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC98-09872, on 4 November 1998. 2. Based on the applicant’s claim that he has PTSD, his application is being reviewed under the 2014 Secretary of Defense's guidance to Military Boards for Correction of Military (BCMR)/Naval Records (NR). 3. The applicant's complete military records are not available to the Board for review. A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973. It is believed that his records were lost or destroyed in that fire. However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case. 4. His DD Form 214 (Report of Separation from the Armed Forces of the United States) shows he enlisted in the Regular Army for 3 years on 13 June 1951. This form also shows that at the time of separation his most significant assignment was with Company K, 223rd Infantry Regiment. 5. The facts and circumstances surrounding his discharge are not available for review with this case. However, his DD Form 214 shows he was discharged in the rank/grade of private/E-1 on 16 October 1954 under the provisions of Army Regulation (AR) 615-368 (Enlisted Men - Discharge - Unfitness (Undesirable Habits or Traits of Character) with an undesirable discharge. He was assigned Separation Program Number (SPN) 78 (unfitness). It also shows: * he completed 2 years, 11 months, and 4 days of total net active service, of which, 1 year, 7 months, and 13 days was foreign service * he had 153 days of lost time under section 6(a), Appendix 2b, of the Manual for Courts-Martial * he was not awarded or authorized any awards or decorations 6. On 17 October 1980, the Army Discharge Review Board (ADRB) reviewed his discharge processing but found it proper. The ADRB denied his request for an upgrade of his discharge. 7. On 4 November 1998, the ABCMR also reviewed his discharge processing but found insufficient evidence of an error or an injustice. The ABCMR denied his request for an upgrade of his discharge. 8. He provides: a. Two statements, dated September 2013 and May 2014 from a psychiatrist at the PTSD Clinic, UCLA Neuropsychiatric Institute and Hospitals, Los Angeles, CA. He states that the applicant has been a patient of his in treatment for PTSD since June 2013. Based on clinical interviews and the results of standardized PTSD instruments, he continues to re-experience traumatic events from the Korean War, with concomitant hyperarousal and severe social avoidance. His exposure to combat is confirmed by his receipt of the Combat Infantryman Badge. His symptoms remain chronic and severe including intrusive memories of combat, nightmares almost every night, difficulty falling and staying asleep, generalized anxiety and panic attacks once or twice per week, irritability and impulsive rage, poor concentration and memory, hypervigilance, exaggerated startle, attempts to avoid thinking or talking about the trauma as well as events or locations reminiscent of the trauma, restricted affect and feelings of estrangement and foreshortened future. b. Statement, dated 15 February 2015, from a pastor who states he confirms the applicant's character. He has faithfully attended and supported their church of 18 years. c. A statement, dated 24 February 2015, from his brother. He states that he is a retired U.S. Army Medic. He served from 1949 to 1953, during the Korean War. He was stationed at Camp Stoneman. His brother, the applicant, served in the U.S. Army as a point man during the Korean War. He served on the front lines in the "Punch Bowl" and was in the field all the time. This is why the paymaster could not locate him or keep up with him. His brother is now disabled with PTSD. He also is the sole caregiver to his son who is also disabled. He is a good brother, a loving father, and wonderful person. d. A statement, dated 19 March 2015, from a friend who states the applicant is a friend and fellow Christian brother in the Lord. He has known him for about 18 years now and can testify to this person as being a man who loves his children and has a love for people. He is and has been a person committed to making the most out of his life as well as to those around him. He has seen his times of joy and his times of sorrow, but he has remained faithful in all he does. He has been a blessing to him and others; always ready to encourage and help those in need. He realizes that he does this despite being in need himself. He carries the values with honor in accordance to his Christian Faith. He firmly believes that the applicant's life has changed when he accepted the Christ into his life. He continues to instill those values not only into his life but into the lives of his family and friends. He can testify to his character as one who projects joy, peace, love and a strong willed determination to make a difference. d. A statement, dated 2 April 2015, from a service organization representative who states that he holds the position of Chapter Adjutant with his service organization. He was asked by the applicant to submit this letter as to his character as well as comment on former Secretary of Defense's September 2014 memo to the military regarding "older" claims for PTSD. Over the years, he has gotten to know the applicant well and feels that he is known for his open and candid honesty, as well as a person of good temper and character who supports many of their events. Regarding his Korea military combat duty, he has reviewed his issue and the DOD memorandum but no actual military records since they seemed to have been destroyed in the earlier July 1973 warehouse fire. Even so, his issue falls under DOD recent guidance for special consideration in light of this new information regarding PTSD developing day by day. 9. The Board requested the Office of The Surgeon General (OTSG) review his records in an effort to determine if there was a relationship between his claimed PTSD and his misconduct. The official stated: a. He provides documentation from a VA psychiatrist, dated 12 May 2014, confirming a diagnosis of PTSD and delineating chronic and severe symptoms that have rendered him permanently disabled and unemployable. An Initial Psychiatric Evaluation conducted on13 November 2012 at Windstone Behavioral Health (BH) refers to the applicant having been diagnosed with PTSD in July 2010 by the VA and prescribed Zoloft. b. Despite his diagnosis of PTSD by the VA, there is no documentation that, at the time of his separation, a BH condition was a mitigating factor in the offenses that led to his undesirable discharge. With regard to eligibility for a PTSD discharge, no documentation is provided to suggest that, at the time of separation, his functioning was impaired to the degree that he would have fallen below retention standards as indicated by a profile or other duty limitations. 10. The applicant responded on 29 August 2016. He stated: a. He disputes the letter from OTSG because he had no contact with the OTSG. No one from that office has ever called or requested any information from him, nor questioned him on his combat experiences and, then being placed in a cage for the accusation of "joy riding on base." As such, he asks it not be considered in his case and reserve the right to dispute that report. b. Additionally, and on the issue of PTSD, it is well known in case law, both civilian and military, that symptoms of PTSD do not manifest themselves once someone leaves the service, but some years later as in my case, and verified by his VA doctor, of which his reports are attached to his earlier request. c. He saw no mention in the letter regarding "back pay" that he never received after serving in Korea, as well as several other issues, He presumes that is a separate issue and will be considered down the road. REFERENCES: 1. AR 615-368, in effect at the time, set forth the basic authority for the separation of enlisted personnel by reason of unfitness. a. That regulation provided for the discharge of individuals who had demonstrated their unfitness by giving evidence of habits and traits of character manifested by misconduct. Unfitness included habits and traits of character manifested by antisocial or amoral trend, chronic alcoholism, criminalism, drug addiction, pathological lying, homosexuality, sexual perversion, or misconduct. An undesirable discharge was normally considered appropriate. b. A board of officers would recommend that the individual either be discharged because of unfitness or unsuitability, or retained in the service. The regulation stated that discharge, if recommended, would be for unfitness, except that discharge because of unsuitability (under AR 615-369 (Enlisted Personnel - Discharge - Inaptitude or Unsuitability)), without referral to another board, might be recommended in borderline cases if military circumstances and the character of service rendered by the individual during his current period of service so warranted. As examples, such circumstances would apply where the cause of unfitness had been minor, relative to the length of efficient service or where there had been a definite effort at self-control; or where an individual had, during his current period of service, distinguished himself by an act of heroism, which in itself reflected great credit on the individual and the military service. 2. AR 635-200, currently in effect, governs the separation of enlisted personnel. a. Paragraph 3-7a states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier'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. 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. PTSD, an anxiety disorder, was not recognized as a psychiatric disorder until 1980 with the publishing of the Diagnostic and Statistical Manual of Mental Disorders (DSM) III. The condition is described in the current DSM-III-R, pages 247 through 251. While psychiatrists have only categorized PTSD as a distinct diagnosis since 1980, it has, as early as the Civil War, been described in psychological literature, variously labeled as shell shock, Soldier's heart, effect syndrome, combat fatigue, and traumatic neurosis. Although the current label of PTSD is of rather recent acceptance, the idea that catastrophes and tragedies can result in persistent emotional and psychological symptoms is common even among the lay public. 4. In view of the foregoing, 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 the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. 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 the 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 under other than honorable conditions characterization of service. Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of under other than honorable conditions. Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. 7. AR 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. a. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. 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. b. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. c. The commanders of Army Staff agencies and commands will furnish advisory opinions on matters within their areas of expertise upon request of the ABCMR and in a timely manner. 8. Title 31 U. S. Code (USC), section 3702, also known as the Barring Act, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U. S. Code, is relieving the government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove. A change to this statue is not within the purview of this Board. DISCUSSION AND CONCLUSIONS: 1. 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 sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. With respect to alleged entitlement to unpaid pay and allowances, irrespective of the Barring Act, a service member claiming additional pay and allowances previously accrued but not paid, has the burden of proving that he/she was not paid the pay and allowances claimed. The claim is disallowed where the government records necessary to either justify or refute it have been destroyed or become unavailable due to lapse of time, and there is no other documentation available from any source to establish the liability of the United States. The applicant has not provided any evidence related to payment/non-payment of pay. 3. The complete facts and circumstances surrounding his discharge are not available for review with this case. However, his DD Form 214 shows he was discharged on 16 October 1954 under the provisions of AR 615-368 with an undesirable discharge. 4. In the absence of evidence to the contrary, it appears the applicant exhibited misconduct that led his chain of command to believe he was unfit for service and recommend his separation. It is presumed his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights. It is also presumed the separation authority appropriately directed the issuance of an undesirable discharge based on his overall record of service during the period under review. 5. OTSG's advisory opinion relies on the evidence provided by the applicant. After all, the applicant has the burden of proof. There is no requirement for OTSG to contact the applicant or ask about his combat experience. Furthermore, it is at the discretion of the Board – not the applicant – to adopt the advisory opinion recommendation in whole or in part, or reject the recommendation based on the Board's analysis of the facts in this case. 6. In the absence of the specific reason that led to his ultimate discharge, there is insufficient evidence to draw a connection between any behavioral health he may have encountered at the time and the misconduct that led to his discharge. 7. The available evidence indicates the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel. His misconduct rendered his service unsatisfactory. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150006429 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150006429 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2