IN THE CASE OF: BOARD DATE: 22 September 2016 DOCKET NUMBER: AR20150008741 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 IN THE CASE OF: BOARD DATE: 22 September 2016 DOCKET NUMBER: AR20150008741 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 applicant's DD Form 214 for the period ending 1 February 1979 to show the characterization of service as "General, Under Honorable Conditions" and his rank/grade as SPC/E-4 with an effective date of 18 October 1978. _____________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. IN THE CASE OF: BOARD DATE: 22 September 2016 DOCKET NUMBER: AR20150008741 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 correction of his DD Form 214 (Report of Separation from Active Duty), ending 1 February 1979, by upgrading the character of service to honorable. 2. The applicant states, in effect: * he is a combat Veteran of the Vietnam War who has been awarded a service-connected disability for post-traumatic stress disorder (PTSD) by the Department of Veterans Affairs (VA) * for his period of service ending on 1 February 1979, he was given an under honorable conditions character of service [sic, his DD Form 214 shows under other than honorable conditions] * based on the memorandum for Secretaries of the Military Departments dated 3 September 2014, he asserts an injustice occurred * his first two periods of service (22 May 1967 to 21 May 1969 and 28 February 1974 to 27 June 1976, respectively) were fully honorable * it was after his return from Vietnam that problems began 3. The applicant provides: * VA Rating Decision, dated 5 May 2007 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) ending 21 May 1969 * DD Form 214 (Report of Separation from Active Duty) ending 27 June 1976 * DD Form 214 ending 1 February 1979 * Letter Orders Number 04-1097793, dated 18 April 1973 * DA Form 20 (Enlisted Qualification Record) * DA Form 2-1 (Personnel Qualification Record - Part II) * DD Form 47 (Record of Induction) * DA Form 3072-1 (Request for Waiver of Disqualification for Reenlistment in the Regular Army for Personnel Applying from Civilian Life), dated 9 November 1973, with indorsements * two DD Forms 4 (Enlistment Contract - Armed Forces of the U.S.), dated 28 February 1972 and 28 June 1976, respectively * DA Form 3286 (Statements for Enlistment), dated 28 June 1976 * DA Form 3286-85 (Statements for Reenlistment), dated 28 June 1976 * DA Form 3082 (Statement of Medical Condition), dated 1 February 1979 * memorandum, dated 1 February 1979, Subject: Reason for Separation * six DA Forms 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) * memorandum, dated 3 September 2014, Subject: Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming PTSD 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. Having had prior honorable enlisted service in the Army of the United States, the applicant enlisted in the Regular Army on 28 February 1974. 3. He was honorably discharged to permit immediate reenlistment on 27 June 1976. 4. His available service records show he accepted nonjudicial punishment under the provisions of Article 15, UCMJ, on five occasions: * 25 February 1977, while stationed in Germany, for wrongfully appropriating a military sedan * 18 May 1978, at Fort Hood, TX, for willfully disobeying two lawful orders from a superior noncommissioned officer (NCO) (a suspended forfeiture of $147 was vacated on 20 June 1978) * 12 August 1978, at Fort Hood, for using provoking speech towards a superior commissioned officer * 16 October 1978, at Fort Hood, for being absent without leave (AWOL) for about 2 hours; punishment included reduction to specialist four/E-4, imposed on 18 October 1978 (suspended punishment of a forfeiture of $299 per month for 2 months and 30 days of extra duty was vacated on 4 December 1978) * 27 December 1978, at Fort Hood, for three specifications of failing to go at the time prescribed to his appointed place of duty (FTR), and one specification of AWOL from 18 December 1978 to 20 December 1978 5. The applicant’s discharge packet is not available for review. However, his available service record includes Orders Number 18-265, dated 18 January 1979, issued by Headquarters, 2nd Armored Division that reduced him from SP4/E-4 to private (PV1)/E-1 effective 17 January 1979. The authority cited is Army Regulation (AR) 600-200 (Enlisted Personnel Management System), paragraph 7-64c (Approved for Discharge from Service Under Other than Honorable Conditions). Additionally, there is a DD Form 214 that reflects he was discharged on 1 February 1979 under other than honorable conditions. His DD Form 214 also shows: a. He completed 2 years, 6 months, and 3 days of net active service this period, with 4 years and 4 months of prior active service and 2 days of lost time. b. His rank/grade was PV1, with a date of rank of 17 January 1979. c. He was awarded or authorized: * Army Good Conduct Medal (2nd Award) * National Defense Service Medal * Vietnam Service Medal with four bronze service stars * Republic of Vietnam Campaign Medal with Device (1960) * Republic of Vietnam Gallantry Cross with Palm Unit Citation * Expert Marksmanship Qualification Badge with Rifle Bar d. The separation authority is AR 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-33b(1) (Patterns of Misconduct, Frequent Incidents of a Discreditable Nature with Civil or Military Authorities). 6. There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations. 7. The applicant provides a VA Rating Decision dated 5 May 2007 showing he was awarded a service-connected disability rating of 50 percent for PTSD. a. The rating decision notes he served as a combat engineer while in Vietnam and was exposed to enemy snipers, rocket and mortar fire, and land mines. b. While PTSD screening initially was negative, he was later diagnosed with prolonged PTSD along with alcohol dependence and cannabis use (both in remission). c. His affect and thought processes were normal, but cognitive and memory testing revealed some significant deficits. 8. In an advisory opinion, dated 12 August 2016, the Chief, Behavioral Health (BH) Division, Health Care Delivery, Medical Command, Office of The Surgeon General (OTSG), rendered an advisory opinion. This OTSG official stated: a. On 5 May 2007, he was granted service-connection for PTSD (previously diagnosed as depression and anxiety), with a disability rating of 50 percent effective 14 May 2005. b. The applicant asserts he developed PTSD while in Vietnam. Although there are no BH records available from when he was on active duty, it is certainly plausible that his combat experience in Vietnam produced PTSD symptoms, and these symptoms might be considered a mitigating factor for the unspecified misconduct leading to his separation. 9. On 12 August 2016, the Case Management Division of the Army Review Boards Agency provided the applicant a copy of the advisory for his review and comment. The applicant did not respond. REFERENCES: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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 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. c. Chapter 14 (Separation for Misconduct), Section V (Other Acts or Patterns of Misconduct), states members are subject to separation under the provisions of this section for acts of misconduct and patterns of misconduct, to include frequent incidents of discreditable nature with civil or military authorities. An under other than honorable discharge is normally appropriate for a member separated under this provision. 2. PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster. a. The DSM is published by the American Psychiatric Association (APA), and it 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-III nosologic classification scheme. Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice. b. 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." 3. 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 he or she has been exposed to an event that is considered traumatic. a. Clinical experience with the PTSD diagnosis has shown 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. b. 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. 4. The Fifth Revision of DSM-5 was released in May 2013. This updated edition included 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 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 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. (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) * Irritable or aggressive behavior * Self-destructive or reckless behavior * Hypervigilance * Exaggerated startle response * Problems in concentration * 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 5. 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. a. This acknowledgement is the result of the extensive research conducted by the medical community, along with the relatively recent issuance of revised criteria regarding the causes, diagnosis, and treatment of PTSD. b. It is also recognized that, in some cases, this undiagnosed condition of PTSD may have been a mitigating factor in the misconduct that served as a catalyst for the Soldier's discharge. c. Of note, research has demonstrated that misconduct stemming from PTSD is typically based upon a spur of the moment decision resulting from temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues for extended periods. 6. In view of the foregoing, on 3 September 2014, the Secretary of Defense gave written guidance to Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs). The memorandum directed them to consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on requests for upgrades in the character of service for former service members who had a valid diagnosis of PTSD. 7. BCM/NRs are not courts, nor are they investigative agencies. Therefore, the determinations are 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? 8. Although 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. 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 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. c. PTSD is not a likely a 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. 9. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that 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. DISCUSSION: 1. The applicant requests upgrade of his character of service based upon a diagnosis by VA of service-connected PTSD. 2. The applicant’s record is void of the complete facts and circumstances that led to his discharge. However, his record contains a DD Form 214 that shows he was discharged on 1 February 1979 under the provisions of paragraph 14-33b(1), AR 635-200. a. It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Further, it is presumed that the applicant’s discharge accurately reflects his overall record of service. b. No evidence has been presented which would indicate the applicant was not properly and equitably discharged in accordance with the regulations in effect at the time, and that all requirements of law and regulations were not met or that the rights of the applicant were not fully protected throughout the separation process. Absent such evidence, regularity must be presumed in this case. 3. 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 suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible recharacterization of their overall service. 4. The applicant provides evidence showing the VA has diagnosed him as having prolonged PTSD, which he contends was the result of his combat experiences in Vietnam. The VA awarded him a service-connected disability rating of 50 percent. Additionally, an official from OTSG opined it was "certainly plausible" that PTSD contributed to the misconduct that led to his separation. a. His misconduct involving willful disobedience of orders and using provoking language appear consistent with the impulsivity often associated with PTSD. b. His AWOL offenses are reflective of the avoidance characteristic of PTSD. 5. The evidence suggests PTSD was a contributing factor in the misconduct that led to his under other than honorable discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150008741 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150008741 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2