SAMR-RB 23 November 2016 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings, AR20150011910 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 8 November 2016, in which the Board members unanimously recommended denial of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as "General, Under Honorable Conditions." 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 23 March 2017. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE.ARMY: Encl ---Deputy Assistant Secretary of the Army (Review Boards) CF: ( ) OMPF BOARD DATE: 8 November 2016 DOCKET NUMBER: AR20150011910 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: 8 November 2016 DOCKET NUMBER: AR20150011910 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. BOARD DATE: 8 November 2016 DOCKET NUMBER: AR20150011910 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 his under other than honorable conditions (UOTHC) discharge be upgraded to honorable. 2. The applicant states, in effect, his discharge was the result of youth, stress, duress, personal loss, war, and administrative mistakes. He apologizes for his conduct but believes the records of another Soldier (same name, different social security number (SSN)) were considered in the final disposition of his discharge. He has prostate cancer from exposure to Agent Orange while in Vietnam and the Department of Veterans Affairs (VA) denied his request for medical benefits in April 2015 because of the characterization of his service. 3. He further contends his problems began during his Vietnam tour. While in Vietnam his brother was killed and he had to return home to take care of the funeral arrangements. He returned to Vietnam and was given a compassionate reassignment but his stress and anger increased. He used drugs and alcohol to survive the day-to-day battle that he now knows as post-traumatic stress disorder (PTSD). He developed health issues after his discharge and continued to struggle with drugs and alcohol until he found God. Since being baptized he understands where his life went wrong and he has become an active member in his church and community. 4. The applicant provides: * a timeline of his military service * VA Form 21-4138 (Statement in Support of Claim) * two DA Forms 2627-1 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ) * five letters of support 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. On 14 March 1968, he was inducted into the Army of the United States and he was discharged on 19 March 1968 for the purpose of enlisting in the Regular Army. 3. He enlisted in the Regular Army on 20 March 1968. The highest grade held was specialist four (SP4)/E-4. During his period of service he was assigned to Vietnam from 16 December 1968 to 18 December 1969 as a canvas and webbing repairman. 4. The applicant’s record of misconduct includes: a. nonjudicial punishment (NJP) for failing to go to his appointed place of duty on 5 June 1968; b. NJP for failing to go to his appointed place of duty on 29 October 1968; c. NJP for speeding on 3 February 1969; d. NJP for absenting himself from his place of duty on 4 August 1969; e. NJP for assaulting a Soldier by striking him in the head with his fist on 12 August 1969 resulting in his reduction to private (PV2)/E-2 effective 23 August 1969; f. being barred from reenlistment on 10 November 1969; g. NJP for failing to go to reveille formation on 26 January 1970; h. NJP for failing to go to reveille formation on 4 March 1970; i. NJP for making a false witness statement in that he was assaulted by a band of GIs on 23 March 1970; and j. a Special Court-Martial (SPCM) on 1 December 1969 for selling, without authority, a .45 caliber pistol, military property valued at $53.70. 5. He underwent a psychiatric evaluation on 25 February 1970, which diagnosed him with dissocial behavior disorder and cleared him for administrative separation. The medical officer noted the applicant had been a “borderline” disciplinary problem for most of his active duty service and received seven to nine Article 15s and one court-martial. He also had at least 1 civil conviction prior to entry on active duty.” 6. On 26 March 1970, the applicant’s unit commander initiated separation action under the provisions of Army Regulation 635-212 for unfitness. The commander cited the reason for discharge as frequent acts of misconduct and being absent without leave (AWOL). 7. On 19 May 1970, the applicant consulted with legal counsel and he was advised of the basis for contemplated action to separate him for unfitness. He waived consideration of his case by a board of officers, waived a personal appearance before a board of officers, declined to submit statements in his own behalf. In addition, the applicant waived representation by counsel. He acknowledged that he understood he may expect to encounter substantial prejudice in civilian life in the event his chain of command issued him a general discharge under honorable conditions. He also understood that as the result of the issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life. 8. On 5 June 1970, the appropriate authority approved the separation action and directed issuance of an undesirable certificate and reduction to the lowest enlisted grade. 9. On 8 June 1970, he was discharged accordingly. He completed a total of 2 years, 2 months, and 15 days of creditable active service and incurred 8 days of lost time. 10. In connection with the processing of this case, an advisory opinion was received from the Office of The Surgeon General, Chief, Behavioral Health Division on 26 August 2016. This official determined that although there are no records from the VA or other support services that would indicated a degree of functional impairment characteristic of PTSD, the applicant provides the initial VA evaluation documenting the precipitating stressor and PTSD symptoms in all required clusters, but did not document impairment in social or occupational functions. Nevertheless, it is possible that combat-related symptoms contributed to the misconduct that led to his under other than honorable conditions discharge. 11. On 23 June 2010, the advisory opinion was forwarded to the applicant for acknowledgement/rebuttal. No response was received. 12. He provides: a. a timeline with narrative explanation for his misconduct. He contends that he: * missed formation because he was too sick to be present * was speeding because the speedometer was broken * assaulted a Soldier because he called him a racial epithet * went AWOL only because installation curfews, roadblocks, and road side checks prevented him from travelling * was convicted by SPCM because he failed to make a full inventory of the items in the duffle bag he sold and he was unaware there was a weapon in the bag * failed to report to reveille because he had just returned from Vietnam * made a false statement because given the climate he was afraid of his chain of command and he wanted to protect the other individuals involved b. In his narrative he further contends the VA considered NJP documents dated 6 August 1969 and 15 August 1969 that belong to another Soldier. These documents were found in his military record; however, they are not referenced in his discharge packet or listed on the Article 15 Summary, dated 20 April 1970. c. VA Progress Notes for the period April – June 2016 which show the applicant was treated for PTSD/PTSD symptoms. d. Several character references which support upgrading the applicant’s discharge based on his work in the church, community service, reliability, and citizenship. 13. There is no evidence that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge. REFERENCES: 1. Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness. Soldiers who were involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. An Undesirable Discharge Certificate was normally considered appropriate. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provided that an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be 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. 3. 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." 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. Clinical experience with the PTSD diagnosis has shown, however, 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. 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. 5. 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. 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) (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. 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 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 Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (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 (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: * Reasonability to determine whether PTSD or PTSD-related conditions existed at the time of discharge * Availability in the applicant's record of documentation of the occurrence of a traumatic event during the period of service * Availability in the applicant's military record of documentation of a diagnosis of PTSD or PTSD-related symptoms * What documentation the applicant provided showing a diagnosis of PTSD or PTSD-related symptoms rendered by a competent mental health professional representing a civilian healthcare provider * When the applicant's condition was determined to have existed * Determination of the applicant's condition as having been incurred during or aggravated by military service * Mitigating factors that exist in the applicant's case * The applicant’s history of misconduct prior to the occurrence of any traumatic event * Premeditation of the applicant's misconduct * Seriousness of the applicant’s misconduct 9. 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 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 causal relationship of symptoms to the misconduct. 10. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) paragraph 2-9 provides that the Board 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. His discharge proceedings for unfitness were conducted in accordance with law and regulations in effect at the time. As such, the characterization of the applicant's discharge was commensurate with the reason for discharge and overall record of military service in accordance with the governing regulations in effect at the time. 2. At the time of his 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. 3. Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible re-characterization of their overall service. 4. A review of his record shows that he was subjected to the ordeals of war while serving in the RVN. His record shows that he served a tour of duty in Vietnam while performing the duties of a canvas and webbing repairman. 5. Subsequent to these experiences, a VA medical evaluation documents the precipitating stressor and PTSD symptoms in all required clusters but did not document impairment in social or occupation functioning. It is reasonable to believe the applicant's PTSD condition existed at the time of discharge. 6. He received eight Article 15's and a special court-martial conviction for what his commander considered habitual acts of misconduct, the majority of which occurred during his tour of duty in Vietnam. 7. An advisory official notes that it is possible that combat-related symptoms contributed to the misconduct that led to his under other than honorable conditions discharge. Accepting this opinion would support a recommendation to upgrade the characterization of the applicant's service to a general, under honorable conditions (which would also be a basis for restoring his rank/grade to PV2/E-2 with an effective date of 23 August 1969). 8. An 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 for Army personnel and an under honorable conditions character of service is appropriate for those Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The evidence does not appear to be sufficiently mitigating to support an upgrade of his discharge to fully honorable. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150011910 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150011910 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2