BOARD DATE: 20 September 2016 DOCKET NUMBER: AR20150007229 BOARD VOTE: ___x______ ___x____ _x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 20 September 2016 DOCKET NUMBER: AR20150007229 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by re-issuing the former service member's DD Form 214 for the period ending 12 June 1974 with the characterization of service shown as general, under honorable conditions. ___________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: 20 September 2016 DOCKET NUMBER: AR20150007229 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 that the under other than honorable conditions discharge of her late husband, a former service member (FSM), be upgraded. 2. The applicant states the FSM received an honorable discharge for his service in Vietnam but he had problems after he came back from Vietnam. The FSM received the National Defense Service Medal and Vietnam Service Medal with two bronze service stars. She believes the record is unjust because of the FSM's honorable service in Vietnam and what he went through in Vietnam. She was told the FSM suffered from post-traumatic stress disorder (PTSD). 3. The applicant provides copies of: * three DA Forms 2627-1 (Record of Proceedings under Article 15, Uniform Code of Military Justice) * DA Form 458 (Charge Sheet) * two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) * DA Form 20 (Enlisted Qualification Record) * 4 April 2013 Department of Veterans Affairs Agent Orange Examination letter * 23 April 2013 VA medical treatment record * three letters of support * 15 September 2015 death certificate * 3 September 2014 Secretary of Defense Memorandum 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 FSM's service medical records are not available for review. 3. The FSM enlisted in the Regular Army on 13 April 1971, completed training, and was awarded military occupational specialty 36K (Wireman) with advancement to specialist four (pay grade E-4) on 6 November 1971. 4. He was assigned to duty as a wireman in Vietnam from 23 February 1972 through 6 June 1972. 5. On 3 August 1972, he was honorably discharged for immediate reenlistment, and he reenlisted the following day. 6. The FSM was reported as absent without leave (AWOL) during the following periods: * 6 November 1972 through 13 November 1972 * 5 February 1973 through 19 February 1973 * 2 April 1973 through 30 April 1973 * 1 October 1973 through 29 October 1973 * 30 October 1973 through 5 February 1974 * 5 March 1974 through 5 May 1974 * 6 May 1974 7. The FSM received nonjudicial punishment on: * 14 November 1972 for being AWOL from 6 November 1972 to 13 November 1972 * 9 May 1973, for being AWOL from 5 February 1973 to 20 February 1973 and from 2 April 1973 to 1 May 1973 * 1 June 1973, for failing to go to his place of duty at the time prescribed on 25 May 1973, 26 May 1973, 27 May 1973, and 28 May 1973 8. On or about 12 May 1974, court-martial charges were preferred against the FSM for being AWOL from 1 October 1973 to 5 February 1974 and from 5 March 1974 to 3 May 1974. 9. On 14 May 1974, after consulting with counsel and being advised of his rights and options, the FSM submitted a formal request for 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 acknowledged that he was guilty of the charges or lesser included charges and that, if the request was accepted, he could receive a discharge under other than honorable conditions and be furnished an Undesirable Discharge Certificate. He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received an undesirable discharge. 10. The discharge authority approved the request and directed the FSM be issued an Undesirable Discharge Certificate. 11. The FSM was discharged accordingly on 12 June 1974. He had 2 years, 6 months, and 8 days of total creditable service. His DD Form 214 lists his awards as the National Defense Service Medal, Vietnam Service Medal with two bronze service stars, and the Republic of Vietnam Campaign Medal with Device (1960). His service was characterized as under other than honorable conditions (a type of undesirable discharge). 12. The 4 April 2013 VA letter shows the FSM was recognized as suffering from an Agent Orange related condition, adult onset diabetes. 13. A 23 April 2013 VA medical treatment record lists the FSM's active problems as: * type II diabetes with neuropathy * benign hypertension * cardiovascular accident (stroke) * peripheral vascular disease * adjustment disorder with depressed mood * carcinoma of the lung * intrathoracic lymph nodes 14. The statements provided by family members describe the FSM as a changed man after Vietnam. He is described as having nightmares, being nervous, isolated, depressed; often crying. The statements indicate he drank a lot and was moody. 15. In the development of this case an advisory opinion was obtained from the Chief, Behavioral Health Division, Office of the Surgeon General. The advisory official states: a. The opinion is based solely on the information provided by the Board as the DOD electronic medical record (AHLTA) was not in use at the time of his service. b. Given that PTSD was not recognized as a diagnosis during the Vietnam era, it is unlikely that the FSM or anyone else recognized his symptoms as being related to combat. His misconduct appears to consist largely of failures to report and his record indicates 235 days of lost time due to AWOL. A statement prepared by defense counsel just prior to separation indicates the FSM "expressed a very strong desire to leave the Army... His only concern was with the length of time necessary to effect his separation." c. The only description of the FSM's symptoms is provided by family members. His brother observed that he was "always having nightmares, nervous, isolated," and, according to his wife, "He was nervous and often acted haunted." Both noted that he drank heavily and exhibited severe mood swings. This pattern of behavior is consistent with PTSD which may be considered a mitigating factor in the misconduct that led to his separation. 16. A copy of the advisory opinion was forwarded to the applicant for review and comment. She did not respond. REFERENCES: 1. The Secretary of Defense Memorandum for Secretaries of the Military Departments, dated 3 September 2014, provides supplemental guidance to Military Boards for Correction of Military/Naval Records considering discharge upgrade requests by veterans claiming post-traumatic stress disorder. It states: a. Recent attention has been focused upon the petitions of Vietnam veterans to Military Department Boards for Correction of Military/Naval Records (BCM/NR) for the purposes of upgrading their discharges based on claims of previously unrecognized Post Traumatic Stress Disorder (PTSD). In these cases, PTSD was not recognized as a diagnosis at the time of service and, in many cases, diagnoses were not made until decades after service was completed. To help ensure consistency across the Services, this memorandum provides supplemental policy guidance for BCM R/NRs on these applications. b. BCM/NRs will fully and carefully consider every petition based on PTSD brought by each veteran. This includes a comprehensive review of all materials and evidence provided by the petitioner. Quite often, however, the records of Service members who served before PTSD was recognized, including those who served in the Vietnam theater, do not contain substantive information concerning medical conditions in either Service treatment records or personnel records. It has therefore been extremely difficult to document conditions that form a basis for mitigation in punitive, administrative, or other legal actions or to establish a nexus between PTSD and the misconduct underlying the Service member's discharge with a characterization of service of under other than honorable conditions. c. BCM/NRs are not courts, nor are they investigative agencies. To assist the BCM/NRs in the review of records and to ensure fidelity of the review protocol in these cases, the supplemental policy guidance which details medical considerations, mitigating factors, and procedures for review is provided (Attachment). This guidance is not intended to interfere with or impede the Boards' statutory independence to correct errors or remove injustices through the correction of military records. d. The attachment states: (1) Liberal consideration will be given in petitions for changes in characterization of service to Service treatment record entries which document one or more symptoms which meet the diagnostic criteria of Post-Traumatic Stress Disorder (PTSD) or related conditions. (2) Special consideration will be given to Department of Veterans Affairs (VA) determinations which document PTSD or PTSD-related conditions connected to military service. In cases where Service records or any document from the period of service substantiate the existence of one or more symptoms of what is now recognized as PTSD or a PTSD-related condition during the time of service, liberal consideration will be given to finding that PTSD existed at the time of service. (3) Liberal consideration will also be given in cases where civilian providers confer diagnoses of PTSD or PTSD-related conditions, when case records contain narratives that support symptomatology at the time of service, or when any other evidence which may reasonably indicate that PTSD or a PTSD-related disorder existed at the time of discharge which might have mitigated the misconduct that caused the under other than honorable conditions characterization of service. (4) This guidance is not applicable to cases involving pre-existing conditions which are determined not to have been incurred or aggravated while in military service. (5) 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. (6) 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. (7) 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. e. Procedurally: (1) Time limits to reconsider decisions will be liberally waived for applications covered by this guidance. (2) Cases covered by this guidance will receive timely consideration, consistent with statutory timeliness standards. (3) Boards for Correction of Military Records (BCMR's) may obtain advisory opinions from Department of Defense mental health care professionals or otherwise use Department of Defense mental health care professionals or physicians in their consideration of cases to advise them on assessing the presence of PTSD and its potentially mitigating effects relating to the misconduct that formed the basis for the under other than honorable characterization of service. (4) The outreach and messaging plan conditions executed by the Military Departments will include detailed information on the BCMR's guidelines and procedures for handling these cases. 2. The Diagnostic and Statistical Manual of Mental Disorders, fifth edition (DSM-V) sets forth the 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 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. (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 reexperienced 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. (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. (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). (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 (6) Sleep disturbance f. Criterion F, duration: Persistence of symptoms (in Criteria B, C, D, and E) for more than one month. g. Criterion G, functional significance: Significant symptom-related distress or functional impairment (e.g., social, occupational). h. Criterion H, exclusion: Disturbance is not due to medication, substance use, or other illness. 3. The DSM-V sets forth the diagnostic criteria for an adjustment disorder (AD) with depression, sometimes called reactive, or situational depression, and states AD occurs when an individual is unable to adjust to or cope with a particular stress or a major life event. Since people with this disorder normally have symptoms that depressed people do, such as general loss of interest, feelings of hopelessness and crying, this disorder is sometimes known as situational depression. Unlike major depression the disorder is caused by an outside stressor and generally resolves once the individual is able to adapt to the situation. The condition is different from anxiety disorder, which lacks the presence of a stressor, or post-traumatic stress disorder and acute stress disorder, which usually are associated with a more intense stressor. Some emotional signs of adjustment disorder are: * Sadness * Hopelessness * Lack of enjoyment * Crying spells * Nervousness * Anxiety * Worry * Desperation * Trouble sleeping * Difficulty concentrating * Feeling overwhelmed and thoughts of suicide * Reckless driving * Ignoring important tasks such as bills or homework * Avoiding family or friends 4. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. It provides the following: a. An honorable discharge (HD) is a separation with honor. The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty. b. A general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge. c. An under other than honorable conditions (UOTHC) discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier. d. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the FSM's separation the regulation provided for the issuance of an undesirable discharge. DISCUSSION: 1. The FSM's voluntary request for separation under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10, for the good of the service, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations. There is no indication that the request was made under coercion or duress. The FSM's misconduct constituted a significant departure from conduct expected of a Soldier. 2. The applicant has not provided and the record does not contain any evidence that the FSM was ever diagnosed or treated for PTSD and the VA records show the FSM was being treated for conditions including diabetes and an adjustment disorder with depression. 3. The advisory opinion from OTSG states the FSM's pattern of behavior is consistent with PTSD. The OTSG advisory official further opined that this may be considered a mitigating factor in the misconduct that led to the FSM's separation. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150007229 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150007229 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2