IN THE CASE OF: BOARD DATE: 12 July 2016 DOCKET NUMBER: AR20150011292 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: 12 July 2016 DOCKET NUMBER: AR20150011292 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: 12 July 2016 DOCKET NUMBER: AR20150011292 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 under other than honorable conditions (UOTHC) discharge. 2. The applicant states: a. He believes at the time of his discharge he suffered from and still suffers from post-traumatic stress disorder (PTSD). He was very young when all this happened and he did not understand all that was happening. He does know that there was racial tensions during that time and he was a victim of the racial tension. b. At the time of his service in Vietnam, there was a lot of racial unrest going on in the company and brigade areas and it had been prevalent for months. He and another Soldier (nicknamed Cooper) had words which caused them to fight; Cooper was white and he (the applicant) was of color. The fight was broken up by a captain (CPT) and they went back to hauling 155 and 105 projectiles and detonator cones to the firebases. c. When they got back to the company area, he (Cooper) chased him with a pocket knife until he (the applicant) found a board and hit him in the head with it and ran him off. That evening when he was asleep, he woke up to Cooper punching him in the face. He rolled off his cot, reached into his locker, and grabbed a 12-gauge shotgun that was broken. He did not have time to get it fixed and just wanted to scare Cooper off. d. His hootch was then surrounded and he was told to surrender. He said he would surrender to Sergeant (SGT) M, gave him the broken shotgun, and SGT M told the other staff sergeant (SSG) to take him to the orderly room. SGT M started to push him around, so he started fighting with him. When they got to the orderly room, the CPT sent them back to the company area and said he would decide what he was going to do the next day. e. That night, he got so drunk that he blacked out and does not remember falling into a creek on his way to the enlisted club to find Cooper. He was so drunk that Cooper beat him up very badly. He woke up on the floor of the CPT's office and the CPT charged him. He was given a UOTHC discharge and sent back to the United States. He feels his discharge was unreasonable as at the time he was so young and did not know what a UOTHC discharge meant. 3. The applicant provides 268 pages of various medical records/documents, dated between 7 January 2014 and 21 January 2015. 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 2 April 1970 when he was 19 years, 9 months, and 14 days old and he held military occupational specialty 64A10 (light vehicle driver). He was assigned to Company B, 2nd Battalion, 4th Brigade, Fort Ord, CA. 3. On 9 September 1970, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from his assigned unit from 4 to 7 September 1970. 4. On 5 November 1970, he was assigned to the 515th Transportation Company, 26th General Support Group (GSP), Vietnam. 5. He received NJP under the provisions of Article 15, UCMJ, as follows on: * 2 January 1971, for disobeying a lawful order by SSG HM to confine himself to his bed, latrine, mess hall, and shower as prescribed by a medical authority * 12 January 1971, for operating a 5-ton cargo truck in a reckless manner by driving in excess of 30 miles per hour (MPH) in a 30 MPH zone * 1 March 1971, for acting disrespectfully toward CPT JL by saying to him, "go get f--ked" or words to that effect 6. On 31 August 1971, court-martial charges were preferred against him for one specification each of: * committing an assault on Specialist Four (SP4) JH by pointing a shotgun at him on 23 August 1971 * unlawfully striking SGT WB on the chin with his closed fist on 23 August 1971 * unlawfully striking SP4 JH on the shoulder with closed fists on 29 August 1971 7. In a DA Form 2823 (Witness Statement), dated 1 September 1971, CPT WW stated, in part: a. On 23 August 1971, he was informed a fight was taking place in his company area. He was going toward the hootches when he observed rapid movement, heard shouting, and heard what sounded like a weapon being cocked or loaded. He found SP4 JH on the walkway outside the applicant's hootch facing the applicant and yelling something to the effect of, "Put that gun down and come out and fight." The applicant was in the doorway pointing a shotgun at SP4 JH saying something to the effect of, "I'll kill you." b. The applicant went into his hootch when he saw him (CPT WW) and was found lying on his bed with the shotgun leaning in the corner. He secured the shotgun and told him to go to the orderly room. The applicant stated SP4 JH also had a weapon so he went to investigate. He heard another loud noise and went to the hootch belonging to the maintenance section. There he found the applicant and SP4 P wrestling on a bed each holding onto a mechanic's pry bar. The applicant was uncontrollable, shouting obscenities, and directing threats against several people. When he finally calmed down, he lifted a piece of plywood that SGT WB was standing on to look for his sandals. The board shifted and the applicant dropped the board and struck SGT WB on the chin with a closed fist. 8. After being advised by legal counsel of the implications of such a request, the applicant requested a discharge for the good of the service under the provisions of Army Regulation (AR) 635-200 (Personnel Separations), chapter 10 - in lieu of trial by court-martial. In his request, he acknowledged that he understood if his request was accepted he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate. He also acknowledged that he understood he would be deprived of many or all Army benefits, that he may be ineligible for many or all Veterans Administration (VA) benefits, and that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge. 9. On 1 September 1971, his immediate commander recommended approval of the applicant's request with the issuance of an Undesirable Discharge Certificate. His commander stated the reasons for his recommendation were that: * the applicant had already received three previous Article 15s * he attended the Amnesty Program from 10 to 16 June 1971 and was suspected of being back on drugs * he was capable of doing harm to others or himself when he was excited or lost his temper * his record of misconduct and failure to respond to counseling indicated that trial by court-martial and retention on active duty would be of little or no benefit to the Army and may possibly cause further problems 10. On 28 September 1971 and 1 October 1971, respectively, his intermediate and senior commanders recommended of approval his request with the issuance of an Undesirable Discharge Certificate. 11. On 11 October 1971, the separation authority approved the applicant's request for discharge for the good of the service and directed the issuance of an Undesirable Discharge Certificate. On 19 October 1971, he was discharged accordingly. 12. The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged under the provisions of AR 635-200, chapter 10 - for the good of the service in lieu of trial by court-martial (separation program number (SPN) 246), with an UOTHC characterization of service, and an Undesirable Discharge Certificate. He completed 1 year, 6 months, and 18 days of net active service. 13. His DA Form 20 (Enlisted Qualification Record) lists his race as Caucasian but does not delineate his ethnic group. 14. On 21 June 1977, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge to an honorable discharge and determined his discharge was both proper and equitable. 15. On 17 August 2006, the ABCMR denied the applicant's request that his discharge be changed to a medical discharge based on his diagnosis of lymphocytic leukemia. 16. The applicant provides partially blackened out progress notes, dated 7 January 2014, wherein it stated, in part: a. The applicant was 63 years old and an American Indian or Alaskan Native male. He was seen in December 2013 and referred to Mental Health Medication Management for a medication evaluation. He was with his sister and had not had any psychiatric services since 2010 when he got out of prison. He stated he now has depression and isolation, and did not want to be around anyone. He was not currently hearing voices. According to his sister, he was fighting legal issues about not registering as a sex offender and this had added to his reclusiveness. b. He was seeking to establish mental health care in the VA system and was primarily seeking medication management. He stated the last time he was on medication he had been on abilify, risperdone, and zoloft. He stated he had mood swings, could be aggressive, depressed, had sleepless nights, and had racing and confusing thoughts. In addition, while in prison he was treated for depression and hearing voices. c. He reported that he served in Vietnam, had a high amount of combat experience, and served as a "shadow walker" engaging in nighttime missions and killing the enemy at close-up range. He reported he had problems with nightmares, high startle reaction, anxiety, avoidance, and intrusive memories triggered by reminders such as helicopter sounds. A PTSD diagnosis was suggested. The clinical diagnosis was mood disorder, not otherwise specified (NOS) (emphasis added). 17. In the processing of this case, the Board requested and a clinical psychologist provided an advisory opinion on 6 April 2016. The advisory official stated, in part. a. The applicant's record of misconduct includes being AWOL in September 1970, disobeying a lawful order, driving a vehicle in a reckless manner, disrespecting a commissioned officer, assaulting a Soldier by pointing a shotgun at him, unlawfully striking a Soldier on the chin with a closed fist, and unlawfully striking a Soldier on the shoulder with a closed fist. b. Based on the information for review at this time, the applicant's record reasonably supports that depressive disorder and mood disorder (NOS), existed at the time of his military service. These behavioral health conditions may be considered mitigating factors in his misconduct except for assaulting a Soldier by pointing a shotgun at him, unlawfully striking a Soldier on the chin with a closed fist, and unlawfully striking a Soldier on the shoulder with a closed fist. 18. In a response to the advisory opinion, dated 20 April 2016, the applicant stated, in part: a. His excursion to firebase "Rock-A-Son," an island in the mouth of the delta that was covered with Agent Orange, is how he got leukemia. Then came firebase "Vandigriff" where every day between 4 and 7PM, they received incoming rocket artillery and mortar fire; they called it happy hour. He went AWOL in September 1970 because he was scared but he went back. He does not remember the incidents of disobeying a lawful order, driving a vehicle in a reckless manner, or disrespecting a commissioned officer. b. On 23 August 1971, he was sent back to the stand-down area at Camp Eagle. There was racial tension in the company area when he got there. He got into a hassle with a Caucasian he had known before; the man chased him with a knife and they fought. Later, he woke up with him (the man) punching him (the applicant) in the face. He got the man off him and chased him out of the hooch with a 12-gauge shotgun. SGT M talked him down and he surrendered. c. On 23 August 1971, the Soldier arresting him physically abused him and he defended himself. The commander let him stay in the company area under arrest. On 29 August 1971, he got drunk and fell in the creek. He was told he went to the enlisted club and got into a fight. He woke up in the commander's office soaking wet so he was sent to the stockade. d. He may not have remembered some of his infractions but remembering them was causing anxiety and panic attacks. He hoped this would satisfy what was needed for a diagnosis of PTSD. 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. Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. b. Paragraph 3-7a states that 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. c. Paragraph 3-7b states 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. 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. 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. From an 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 that he or she has been exposed to an event that is considered traumatic. 4. The DSM fifth revision (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. 5. 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 of time. 6. In view of the foregoing, on 3 September 2014 the Secretary of Defense directed the Service DRBs and Service 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 applicant's service. 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? 8. 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 UOTHC 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 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. Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causeal relationship of symptoms to the misconduct. DISCUSSION: 1. The evidence of record confirms the applicant was charged with the commission of serious offenses 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. 2. As such, he voluntarily requested a discharge to avoid trial by a court-martial. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The type of discharge directed and the characterization of his service were appropriate considering all the facts of the case. 3. While the applicant may have experienced some of the stressors that cause PTSD, he has not provided sufficient evidence that shows he has been diagnosed with PTSD. Regardless, while undiagnosed depressive disorder and mood disorder may have been mitigating factors in some of his misconduct, it does not excuse his assaulting a Soldier by pointing a shotgun at him, unlawfully striking a Soldier on the chin with a closed fist, and unlawfully striking a Soldier on the shoulder with a closed fist. 4. Notwithstanding the applicant's contention that his discharge should be upgraded because he was young at the time, records show he was almost 21 years of age at the time of his first offenses. However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service. 5. The evidence does not show that his service met the criteria for an honorable discharge or any other type of discharge other than the one he received. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011292 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011292 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2