IN THE CASE OF: BOARD DATE: 4 October 2016 DOCKET NUMBER: AR20150008771 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 IN THE CASE OF: BOARD DATE: 4 October 2016 DOCKET NUMBER: AR20150008771 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ___________x______________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. IN THE CASE OF: BOARD DATE: 4 October 2016 DOCKET NUMBER: AR20150008771 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 an upgrade of his 1972 under other than honorable conditions discharge to an honorable discharge based on post-traumatic stress disorder (PTSD). 2. The applicant states he suffered from PTSD upon returning from Vietnam. He served in Vietnam from 28 August 1970 to 28 August 1971; he was there for 1 year out of his nearly 1 year and nearly 9 months of total service. He was given an early out. While in Vietnam, he was a helicopter door gunner and received the Bronze Star Medal, Combat Infantryman Badge, and other awards. At the time, PTSD was not recognized as a legitimate medical diagnosis. When he returned, he was suffering from PTSD. Like many veterans, his condition was not diagnosed until much later. For a long time he denied he had a problem. Upon his return from Vietnam, his first sergeant was disrespectful toward him and questioned how he got his medals. This upset him to the point where he went absent without leave (AWOL). He believes his PTSD was a major factor in his lapse of judgment. He has not been in trouble post-service. 3. The applicant provides: * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * separation packet with the charge sheet * DA Form 20 (Enlisted Qualification Record) * Article 15 * 2010 consultation sheet * 2010 psychiatric note * Department of Defense (DOD) supplemental guidance concerning discharge upgrades for 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. The applicant was inducted into the Army of the United States on 17 March 1970. He held military occupational specialty 11B (Light Weapons Infantryman). 3. On 13 August 1970, he departed the Overseas Replacement Station, Oakland, CA, in an AWOL status. He returned to military control on 20 August 1970. 4. On 25 August 1970, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 13 to 20 August 1970. His punishment consisted of a reduction to E-1 and a forfeiture of pay. 5. He served in Vietnam from 28 August 1970 to 28 August 1971. He was assigned to the 132nd Aviation Company, 16th Aviation Group, 23rd Infantry Division. 6. Following completion of his Vietnam tour, he was reassigned to Company B, 20th Engineer Battalion, Fort Campbell, KY. 7. On 1 November 1971, he departed his unit in an AWOL status and on 1 December 1971, he was dropped from the rolls as a deserter. He ultimately returned to military control on 19 April 1972. 8. On 4 May 1972, court-martial charges were preferred against the applicant for one specification of AWOL from 1 November 1971 to 19 April 1972. 9. On 20 May 1972, the applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial and of the maximum permissible punishment authorized under the UCMJ, of the possible effects of an undesirable discharge, and of the procedures and rights available to him. Subsequent to this counseling, the applicant requested discharge for the good of the service under the provisions of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), in lieu of trial by court-martial. He also stated that he understood that he could receive an under other than honorable conditions discharge and as a result be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits administered by the Veterans Administration (VA) or by the State or Federal government. 10. With his request, he submitted a personal statement. He stated: * he had 24 days to his expiration of term of service (ETS) with a 4-month drop; his AWOL was unintentional and he was financially supporting his parents * upon reporting to Fort Campbell, he learned that his fiancé of 4 years was pregnant and he did not know what to do except try to get out of the service and marry her * he asked his company commander for a 6-month drop but his commander said he could not do it unless he was going to school * before joining the military, he was a truck driver and he was able to pull trips on the weekends; it became easier and easier to not return to duty * he had served in Vietnam and was shot down twice * he received multiple awards and was pending a Silver Star and promotion to E-5 * because of his personal situation, he wanted to get out; he understood he could get an undesirable discharge and pleaded for a general discharge 11. His immediate and intermediate commanders recommended approval of the discharge action with the issuance of a general discharge. 12. On 30 May 1972, the separation authority approved the applicant's request for discharge, and directed he receive an under honorable conditions (general) discharge. On 6 June 1972 he was discharged accordingly. His DD Form 214 shows he was discharged in accordance with chapter 10 of AR 635-200 with a general discharge. He completed 1 year, 8 months, and 25 days of active service, of which 144 days was lost time prior to his ETS and 33 days after his ETS. Among his awards are the Bronze Star Medal, Combat Infantryman Badge and Aircraft Crewman Badge. Though not recorded on his DD Form 214, he was awarded the Air Medal (16th Award) by General Orders Number 9422, issued by Headquarters, 23rd Infantry Division on 24 August 1971. 13. The Board requested, and the Office of The Surgeon General (OTSG) reviewed the medical document he provided and rendered an advisory opinion on 16 August 2016 in his case. The OTSG official stated: a. OTSG was asked to "review the applicant's petition and the allied papers, respond to the issues raised by the applicant with competence or expertise, and finally, prepare an advisory opinion analyzing the applicant's issues and the Board's questions, with a reasoned recommendation as to the recommended adjudication." This opinion is based solely on the information provided by the Board as the DOD electronic medical record was not in use at that time. b. The applicant asserts he was suffering from PTSD when he returned from Vietnam and went AWOL. He explains to a VA behavioral health (BH) provider that he stayed in Vietnam for 2 extra months in exchange for a 6-month early out. When he returned to Fort Campbell to out-process, he cleared the company and battalion but his first sergeant refused to out-process him. The applicant put his paperwork on the first sergeant's desk, went home and returned to civilian work. c. During his initial visit to the VA on 16 July 2010, he was diagnosed with PTSD. In January 2011, anxiety disorder not otherwise specified was added to his diagnoses. Records suggest that he was followed by the VA for medication management only. There is mention of prior outpatient BH treatment at the Vet Center. d. There is no indication in the record that he met the criteria for PTSD at the time of his separation or that his AWOL was connected to PTSD or any other BH condition. He clearly states that he believed he had made an agreement in Vietnam that would allow him to separate 6 months early which he did without all the necessary approvals. 14. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal and/or any additional information. He did not respond. REFERENCES: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of VA, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the Service. b. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member'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. 2. 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 it provides standard criteria and common language for the classification of mental disorders. 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. 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 diagnosis of PTSD is of recent origin, the idea that catastrophes and tragedies can result in persistent emotional and psychological symptoms is common. 3. The DSM-5 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 assesses functioning; and the eighth criterion clarifies symptoms as not attributable to a substance or co-occurring medical condition. 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 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 also acknowledged that in some cases this undiagnosed condition of PTSD may have been a mitigating factor in the Soldier's 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 temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues for an extended period. 5. In view of the foregoing, on 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and 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. 6. Although the 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. 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. 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? DISCUSSION: 1. The applicant served on active duty from 17 March 1970 to 6 June 1972 to include a 1-year combat tour in Vietnam. He left Vietnam enroute to Fort Campbell. He then left his unit in an AWOL status on 1 November 1971 and remained AWOL until he returned to military control on 16 March 1972. 2. Following his return, he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of AR 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. The applicant voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. It appears the separation authority took into consideration the applicant’s combat service in Vietnam as a door gunner and his war-time awards when he directed issuance of a general, under honorable conditions discharge. 3. The advisory official found no evidence in the record that he met the criteria for PTSD at the time of his separation or that his AWOL was connected to PTSD or any other BH condition. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150008771 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150008771 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2