IN THE CASE OF: BOARD DATE: 19 May 2016 DOCKET NUMBER: AR20150012010 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ____X____ ___X_____ ___X_____ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 19 May 2016 DOCKET NUMBER: AR20150012010 BOARD DETERMINATION/RECOMMENDATION: 1. Notwithstanding the staff DISCUSSION in Enclosure 2, the Board did not see any error or injustice in this case. The medical advisory opinion notes that the probable presence of post-traumatic stress disorder should not be considered a mitigating factor in the applicant’s wrongful transfer and sale of marijuana. This misconduct warranted the characterization of service he received. 2. Therefore, the Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice and that 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: 19 May 2016 DOCKET NUMBER: AR20150012010 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 discharge be upgraded to an honorable discharge. 2. The applicant states at the time he received the administrative discharge, he was suffering from undiagnosed post-traumatic stress disorder (PTSD) as a result of combat duty in the Republic of Vietnam. 3. The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period 24 October 1967 to 9 June 1970, his DD Form 214 (Report of Separation from Active Duty) for the period 10 June 1970 to 14 November 1974, and two letters from the Department of Veterans Affairs (VA). 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 24 October 1967. 3. His DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam from 3 June to 22 October 1968. His DD Form 20 also shows he was wounded in action on two separate occasions and he was transferred in a patient status to a medical facility in Japan on 23 October 1968. 4. He was promoted to the rank grade of specialist five/E-5 on 15 January 1970. 5. On 9 June 1970, he was honorably discharged for the purpose of immediate reenlistment. On 10 June 1970, he reenlisted for a period of 6 years. 6. On 12 August 1971, he accepted nonjudicial punishment (NJP) for failing to report at the time prescribed to his appointed place of duty. 7. On 10 November 1971, he was found guilty by a special court-martial of: * one specification of wrongful use of marijuana * three specifications of wrongful transfer of marijuana * one specification of wrongful sale of marijuana 8. As a result of a court-martial conviction, he was reduced to the rank/grade of private (PVT)/E-1. 9. On 18 August 1972, he accepted NJP for failing to go at the time prescribed to his appointed place of duty. 10. His DA Form 20 shows he was promoted to the rank/grade of specialist four (SP4)/E-4 on 15 September 1972. 11. His record shows he was absent without leave (AWOL) during the periods: 20 to 30 June 1974, 1 July to 12 August 1974, and 29 August to 23 September 1974. 12. On 24 September 1974, court-martial charges were preferred against him for the above AWOL offenses. 13. On 17 October 1974, he consulted with legal counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In doing so, he admitted guilt to the offense charged and he acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the VA if an undesirable discharge was issued. 14. On 25 October 1974, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service and directed his reduction to the lowest enlisted grade and the issuance of an undesirable discharge. 15. On 14 November 1974, he was discharged accordingly. His DD Form 214 shows he was discharged in the rank and grade of PVT/E-1 after completing 6 years, 10 months, and 2 days of active military service. It also shows he accrued 81 days of lost time. 16. The Army Discharge Review Board denied his request for a discharge upgrade on 31 August 1988. 17. He provided two letters from the VA showing he is receiving service-connected disability compensation for PTSD. 18. During the processing of this case, a medical advisory opinion was obtained from the Army Review Boards Agency (ARBA) Clinical Psychologist. The advisory opinion states: a. Based on the information available at this time, the applicant's record reasonably supports the existence of PTSD at the time of his military service. This behavioral health condition may be considered a mitigating factor for his misconduct, with the exception of wrongfully transferring and selling marijuana. b. In accordance with Title 10, U.S. Code, Section 1177 (Members diagnosed with or reasonably asserting PTSD or traumatic brain injury: medical examination required before administrative separation), the requirement for a behavioral health exam prior to separation from service was not applicable in the applicant's case because he was discharged prior to this provision of the U.S. Code signed into law (28 October 2009). 19. The medical advisory opinion was provided to the applicant to afford him the opportunity to respond to its contents; however, no response was received within the period of time allowed. REFERENCES: 1. Army Regulation 635-200 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. 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 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 an individual who was discharged for the good of the service. However, if warranted, the discharge authority may direct an honorable or general under honorable conditions discharge. 2. 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. 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. 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. 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 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. 5. In view of the foregoing, on 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records 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. DISCUSSION: 1. The evidence shows the applicant's separation from service under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial, was administratively correct and in conformance with applicable law and regulations in effect at the time. There is no indication the applicant’s request was made under coercion or duress. Additionally, the characterization of his service was commensurate with the reasons for discharge and overall record of military service. 2. At the time of the applicant's discharge, PTSD was largely unrecognized by the medical community and DOD. However, both the medical community and DOD now have a more thorough understanding of PTSD and its potential to serve as a causative factor in a Soldier's misconduct when the condition is not diagnosed and treated in a timely fashion. 3. Soldiers who suffered from PTSD, who were separated solely for misconduct subsequent to a traumatic event, warrant careful consideration for the possible re-characterization of their overall service. 4. The applicant's records show he was wounded in action on two separate occasions during his service in Vietnam and that he was medically evacuated due to his injuries. 5. The ARBA Clinical Psychologist opined that PTSD existed at the time of the applicant's military service and this behavioral health condition may have been a mitigating factor for his misconduct, with the exception of wrongfully transferring and selling marijuana. 6. Based on the circumstances surrounding the applicant's administrative discharge, it is reasonable to believe that PTSD was a causative factor in the misconduct that led to his discharge (except transferring and selling marijuana). After carefully weighing that fact against the severity of his misconduct, there is sufficient mitigating evidence to warrant upgrading the characterization of his service to under honorable conditions and restoring his rank/grade to SPC/E-4. 7. However, in weighing the same above factors, and based on the seriousness of his acts of misconduct commenced; specifically, transferring and selling marijuana, his overall record of service during his second period of service does not rise to a fully honorable characterization of service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012010 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012010 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2