BOARD DATE: 3 November 2016 DOCKET NUMBER: AR20150011367 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: 3 November 2016 DOCKET NUMBER: AR20150011367 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 to amend the decision of the ABCMR set forth in Docket Number AR20080018424, dated 24 March 2009. __________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: 3 November 2016 DOCKET NUMBER: AR20150011367 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 previous request for an upgrade of his under other than honorable conditions discharge to an honorable discharge or a general, under honorable conditions discharge. 2. The applicant states: a. He served in Vietnam in military occupational specialty (MOS) 13A (Field Artillery (FA) Basic) and was primarily assigned to the 2nd Battalion (BN), 320th FA Regiment, 101st Airborne Division; he served in Vietnam nearly 15 months. He was also assigned to the 1st BN, 319th FA. It should be noted that the 2nd BN, 320th FA participated in substantial and intense combat operations in Vietnam during his tenure with them. The BN performed valiantly in some of the heaviest fighting in Vietnam and typical of those battles was the attack on Battery B on 7 June 1966 by a BN of the North Vietnamese Army (NVA) near Tou Morong. After a long battle, the enemy broke through the perimeter and captured the number six howitzer. A counterattack led by the battery commander drove the enemy from the position only to lose the howitzer again to an enemy counterattack. After turning all five remaining guns towards the enemy, the battery shot direct fire for 5 minutes, prior to fierce hand-to-hand combat. After 6 hours, the enemy was finally driven from the perimeter. b. On 15 October 1967, NVA regulars attacked Battery A and seized three guns. During the enemy's attempt to seize a fourth gun, Staff Sergeant (SSG) WA climbed to an exposed parapet and issued commands to direct fire. Wounded by two enemy grenades, SSG WA propped himself on the parapet. When another grenade rolled into his gun pit, he grabbed the grenade only to have it explode in his hand. Although only partially conscious, he refused medical evacuation in order to lead his Soldiers. SSG WA was awarded the Congressional Medal of Honor for his bravery. Over the course of 7 years in Vietnam, the 2nd BN, 320th FA, earned the nickname Balls of the Eagle, 15 campaign streamers, two Valorous Unit Awards, and a Presidential Unit Citation. He not only knew SSG WA, he was in his platoon. He saw many of his friends and fellow Soldiers hurt and killed while he was in Vietnam. c. While serving in Vietnam, he was afflicted with a variety of medical conditions, including, but not limited to, white spots on his skin, malaria, food poisoning, dysentery, and jungle rot on his feet. In addition, based on his experiences in Vietnam, he began experiencing what is now described as post-traumatic stress disorder (PTSD). While it is true that he incurred a number of disciplinary issues during his military service, he believes these were in large part due to his battle with PTSD. It is not uncommon for Soldiers experiencing PTSD as a result of combat to act out and be the subject of the Uniform Code of Military Justice (UCMJ) or other adverse administrative actions. d. All of his disciplinary matters were relatively minor in nature. These included receiving an Article 15 on 3 September 1967 for using disrespectful language towards a superior noncommissioned officer (NCO). This incident involved him calling a corporal an "a--kissing mother f---ker" or words to that effect. He accepted that Article 15 and did not demand trial by court-martial. In addition, he waived his right to consult with counsel and to submit matters in mitigation. He did not appeal the result of this disciplinary action. He received another Article 15 on 13 November 1967 for possessing marijuana. He accepted that Article 15 and did not demand trial by court-martial. In addition, he waived his right to consult with counsel and to submit matters in mitigation. He did not appeal the result of this disciplinary action. e. He was convicted by a special court-martial in 1968 for what in large part amounted to disobeying orders; these orders were mostly related to his reporting for things such as mess duty and trash detail. In addition, it is true that he was convicted of an assaultive crime by civilian authorities in North Carolina (NC); this was an event where he was defending himself. He received notification of separation pursuant to Army Regulation (AR) 635-206 (Personnel Separations - Discharge - Misconduct - Fraudulent Entry, Conviction by Civil Court, Absent Without Leave (AWOL), Desertion), paragraph 33a. He waived his right to counsel, his right to submit statements/matters in mitigation, as well as his right to appeal. He subsequently received an Undesirable Discharge Certificate. f. With the exception of the civil conviction he received for assault, all of his military disciplinary matters were minor in nature. Moreover, all of these matters were related to PTSD that he was experiencing as a result of his combat service in Vietnam. After Vietnam, he slowly began to heal from what he now knows was PTSD. He was eventually able to obtain employment with General Motors and he worked there for nearly 30 years without incident. He is having a number of medical issues related to his exposure to Agent Orange and other illnesses and injuries he suffered while in Vietnam. 3. The applicant provides: * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * two pages of DA Form 20 (Enlisted Qualification Record) * 23 pages of Department of Veterans Affairs (VA) medical records, dated 26 October and 18 November 2015 * four letters from the VA, dated between 28 October and 23 November 2015 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 AR20080018424, on 24 March 2009. 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 (BCM)/Naval Records (NR). 3. The applicant enlisted in the Regular Army on 22 April 1966 and he held MOS 13A. On 22 June 1967 he arrived in Vietnam and was assigned to Battery A, 2nd BN, 320th FA. 4. He received nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ on: * 3 September 1967, for being disrespectful in language to a superior NCO * 13 November 1967, for wrongfully possessing marijuana 5. On 5 January 1968, he was convicted by a special court-martial as follows for: * two specifications of departing his appointed place of duty without the proper authority * two specifications of disobeying a lawful order from a superior NCO * one specification of being disrespectful in language to a superior NCO 6. He departed Vietnam on 6 September 1968 and on 24 October 1968 he was assigned to Headquarters and Headquarters Battery, 1st BN, 319th FA, Fort Bragg, NC. 7. On 8 November 1968, he was convicted by a summary court-martial for one specification of disobeying a lawful order. 8. On 13 November 1968, he was assigned to Battery A, 1st BN, 319th FA. He was subsequently arrested by civilian authorities for assault with a deadly weapon. 9. In December 1968, the Superior Court, Cumberland County, NC, found him guilty of assault with a deadly weapon. He was sentenced to 6 months confinement in the county jail and assigned to work under the supervision of the NC Department of Corrections. 10. On 22 January 1969, the applicant’s immediate commander notified him of his intent to initiate separation action against him under the provisions of AR 635-206, for unfitness - due to his conviction and sentence by a civil court. The commander informed him that if the separation action was approved he could receive an Undesirable Discharge Certificate. He was advised of his right to seek legal counsel, present his case before a board of officers, and submit statements in his own behalf. 11. On 29 January 1969, he acknowledged receipt of the commander's notification and that he understood that he could expect to encounter substantial prejudice in civilian life if he was issued a general discharge, under honorable conditions or an undesirable discharge, under other than honorable conditions. He waived all his rights and stated that he did not intend to appeal his civil conviction. 12. On 13 and 17 February 1969, respectively, his intermediate and senior commanders recommended approval of the separation action with the issuance of an Undesirable Discharge Certificate. 13. The applicant's record contains a Fort Bragg (FB) Form 1429 (Record of Time Lost), dated 4 March 1969, completed by the Assistant Adjutant General, that shows he had time lost from "6 December 1968 to Present" by reason of civil confinement. 14. On 20 March 1969, the separation authority approved the applicant's separation and directed the issuance of an Undesirable Discharge Certificate. On 1 May 1969, he was discharged accordingly. 15. His DD Form 214 shows he was discharged under the provisions of AR 635-206, for unfitness (Separation Program Number 284), by reason of conviction in civil court during his term of active service, with an under other than honorable conditions characterization of service. He completed 2 years, 8 months, and 13 days of net active service. Item 26a (Non-Pay Period - Time Lost) of his DD Form 214 shows he had 146 days (4 months and 26 days) of time lost from 6 December 1968 to 1 May 1969 due to being in civil confinement. 16. There is no evidence in his available records that show he was ever treated for, or diagnosed with, any mental or medical condition/disorder while serving on active duty. 17. On 10 August 1984, the Army Discharge Review Board (ADRB) denied his request for an upgrade of his discharge and determined his discharge was both proper and equitable. 18. On 24 March 2009, the ABCMR denied his request for an upgrade of his discharge to an honorable discharge. At that time, he stated he deserved an honorable discharge because he served in Vietnam and had 2 years, 8 months, and 13 days of good service. 19. The applicant provides: a. VA medical records, dated 23 November 2015, showing he was seen on 18 November 2015 at the PTSD Clinic for a consult. He stated he primarily sought the referral in order to determine and document whether he had PTSD so he could pursue having his under other than honorable conditions discharge upgraded to an honorable discharge. The assessment found he did not meet the criteria for PTSD at that time (emphasis added). He was diagnosed with major depressive disorder, recurrent, severe, with mood congruent psychotic features. b. A letter from a VA registered nurse, dated 23 November 2015, stating the letter was to clarify that he was seen by a nurse practitioner in psychiatry at the PTSD Clinic on 18 November 2015 and PTSD was not diagnosed/indicated at that point in time. However, this did not mean that he did not have PTSD at the time of his military discharge; PTSD could only be diagnosed if PTSD was present in current time. 20. In the processing of this case an advisory opinion was received on 22 September 2016 from a Clinical Psychiatrist, Army Review Boards Agency (ARBA). The advisory official stated: a. The applicant enlisted in the Army on 22 April 1966 in MOS 13A. He served in Vietnam from 22 June 1967 to 6 September 1968. His record reveals a disciplinary history that includes his acceptance of NJP punishment under the provisions of Article 15, UCMJ, on 3 September 1967 for being disrespectful in language to a superior NCO and on 13 November 1967 for wrongfully possessing marijuana. He also received a summary court-martial on 8 November 1968 for disobeying a lawful order. b. On 5 January 1968, he appeared before a special court-martial for three specifications of being AWOL (i.e. departing his appointed place of duty without the proper authority), three specifications of failure to obey a lawful order, and one specification of being disrespectful in language to a superior NCO officer. He was found guilty of all charges and specifications except for one specification for departing his appointed place of duty without the proper authority. On 3 December 1968, he was found guilty of assault with a deadly weapon by a civil court and sentenced to 6 months incarceration. As a result of the civil court conviction, he was discharged from the Army under the provisions of AR 635-206 with an Undesirable Discharge Certificate and an under other than honorable conditions characterization of service. c. On 23 May 1983, the applicant applied to the ADRB to have his discharge upgraded; the board denied relief. In 2009, he applied to the ABCMR for an upgrade of his discharge and the ABCMR denied the application on 24 March 2009. On 23 June 2015, he reapplied to the ABCMR for a discharge upgrade stating his misconduct was due to undiagnosed PTSD. d. The ARBA Clinical Psychiatrist was asked to determine if the applicant met the criteria for a diagnosis of PTSD at the time of his discharge from the Army. Documentation provided by the applicant and the ABCMR was reviewed. The applicant submitted his personal statement as well as a VA medical evaluation report. Military medical and personnel records were also reviewed. The electronic military medical record was not reviewed as this was not in existence during the applicant's time in service. e. Review of the VA medical evaluation report indicates that the applicant was not diagnosed with PTSD by the VA. It was felt by the VA reviewer that the applicant may have had PTSD at the time of his discharge from the military based on his acknowledgment of a past history of nightmares, anxiety attacks, guardedness, hypervigilance, increased startle response, and anger issues. However, at the time of his VA assessment the applicant no longer met the Diagnostic and Statistical Manual of Mental Disorders fifth revision (DSM-5) criteria for PTSD. f. Review of the applicant's military records confirms he was involved in combat in Vietnam. However, there is no documentation of any symptoms consistent with PTSD occurring during his military service. While drug use and misconduct can be associated with PTSD, these symptoms alone are not sufficient to make a diagnosis of PTSD. There is no indication in his military record that the applicant failed to meet medical retention standards in accordance with AR 40-501 (Standards of Medical Fitness), chapter 3, or the provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant’s era of service. g. Based on the information available for review at this time, there is insufficient evidence to determine if there is a nexus between PTSD or any other behavioral health condition and the misconduct that led to the applicant's discharge from the Army. 21. On 23 September 2016, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal; however, no response was received. REFERENCES: 1. AR 635-206, then in effect established policy and procedures for the elimination of enlisted personnel for misconduct by reason of conviction by civil authorities. It stated an individual would be considered for discharge when he had been convicted by civil authorities, or found guilty of an offense for which the maximum penalty under the UCMJ was confinement in excess of 1 year. The discharge would not be accomplished or submitted until the individual indicated in writing that he did not intend to appeal the conviction, or until the time in which an appeal may be made had expired, whichever was earlier. A discharge under other than honorable conditions was considered appropriate for a Soldier discharged under this regulation. 2. AR 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides 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. 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. Paragraph 3-7c states a discharge under other than honorable conditions is an administrative separation under conditions other than honorable. It may be issued for misconduct, in part, for fraudulent entry, civil conviction, security reasons, or in lieu of trial by court-martial. 3. PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster. 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. 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." 4. 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. 5. 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. 6. 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 Department of Defense (DOD) acknowledges that some Soldiers who were administratively discharged under other than honorable conditions (UOTHC) 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. 7. 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. 8. 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? * Do mitigating factors exist in the applicant's case? * How serious was the misconduct? 9. 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 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. 10. 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 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 demonstrated that he could not or would not meet acceptable standards required of enlisted personnel as evidenced by his record of multiple disciplinary infractions both during and after his service in Vietnam. He was subsequently tried and convicted in civil court for assault with a deadly weapon and was incarcerated on 6 December 1968. Accordingly, his immediate commander initiated separation action against him for unfitness - conviction by a civil court. 2. His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The reason for his discharge and the type of discharge directed were appropriate considering all the facts of the case. 3. Notwithstanding the applicant's contention that he suffered from PTSD during his active duty service, his record is void of any evidence that shows he was ever treated for or diagnosed with any mental condition/disorder or PTSD during his active duty service. In addition, he has not provided any evidence that shows he was ever diagnosed with PTSD since his discharge in 1969. The advisory official states there is insufficient evidence that shows PTSD or any other behavioral health condition contributed to the misconduct that led to his discharge. 4. Based on his record of misconduct, his service clearly does not meet the standards of acceptable conduct for Army personnel. This misconduct also rendered his service unsatisfactory and does not meet the criteria for an honorable discharge or a general, under honorable conditions 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) AR20150011367 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011367 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2