IN THE CASE OF: BOARD DATE: 15 November 2016 DOCKET NUMBER: AR20150012302 BOARD VOTE: ___x_____ ___x___ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 15 November 2016 DOCKET NUMBER: AR20150012302 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the 7 February 1973 DD Form 214 to show: * Character of Service: "General, Under Honorable Conditions" * Grade, Rate or Rank: "PFC" * Pay Grade: "E-3" * Date of Rank: "23 October 1970" __________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: 15 November 2016 DOCKET NUMBER: AR20150012302 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 discharge under other than honorable conditions (UOTHC) to an honorable discharge or a general, under honorable conditions discharge. 2. The applicant states, in effect, his discharge was related to his mental health condition at the time. His request is submitted based on the Secretary of Defense memorandum, dated 3 September 2014, for Service Boards for Correction of Military/Naval Records when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with post-traumatic stress disorder (PTSD). a. He was 21 years of age when he entered active duty. He was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman), he completed airborne training, and he performed very well during that period. b. He was assigned overseas and served in the Republic of Vietnam (RVN) and experienced terror at a young age. During his tour of duty he was fighting for his life and seeing friends and comrades shot, maimed, and killed in horrendous ways. He states that he was awarded the Combat Infantryman Badge; however, the award does not describe the daily terror he felt or the trauma he experienced, which has affected his life ever since. c. He states he went absent without leave (AWOL) for a prolonged period, but it was not willful misconduct. He adds that he did not know what was causing his suffering and he did not know anything about PTSD while he was serving in the military. d. He states that he has been pursuing veterans' benefits through the Department of Veterans Affairs (VA). In November 2012, the Board of Veterans Appeals remanded his case, but the VA Regional Office (VARO) refused to evaluate him. His efforts to gather evidence and pursue his claim have been complicated because he does not have the financial means to stay in one place and he moves constantly. He presumes the VARO in Roanoke, VA, has his service medical records; however, they may have been transferred to the VARO in North Carolina where he now lives. e. The applicant requests personal appearance before the Board. 3. The applicant provides: * a self-authored letter, dated 23 July 2015 (summarized above) * letters from the VA and Virginia Department of Veterans Services * Clinical Alternatives, P.C., Diagnostic Assessment (Outpatient) * previous submissions to the Army Board of Correction for Military Records (ABCMR) COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests upgrade of the applicant's discharge UOTHC to an honorable discharge or a general, under honorable conditions discharge. 2. Counsel states, in effect, he defers to the applicant. 3. Counsel provides no additional documentary evidence. CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 30 March 1970 for a period of 3 years. He was awarded MOS 11B and he completed basic airborne training. He was promoted to private first class (PFC)/pay grade E-3 on 23 October 1970. 2. He was assigned overseas to Vietnam on 23 October 1970. He served as a rifleman (MOS 11B1O) while assigned to Headquarters and Headquarters Company/Company D, 3rd Battalion (Airmobile), 187th Infantry Regiment, during the period 10 November 1970 through 17 October 1971. 3. He was reassigned Company A, 3rd Battalion (Airborne), 325th Infantry Regiment, Fort Bragg, NC, on 2 December 1971. 4. On 14 March 1972, he accepted nonjudicial punishment for failing to obey a lawful general order by improperly parking his privately owned vehicle. 5. On 16 January 1973, court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ), Article 86, for being AWOL from 1 May 1972 to 15 January 1973. 6. On 26 January 1973, the applicant consulted with legal counsel. He was informed of the charges against him for violating the UCMJ and that he was pending trial by court-martial. He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial. a. He voluntarily requested discharge for the good of the service in lieu of trial by court-martial. The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge. b. He was advised that he might be: * deprived of many or all Army benefits * ineligible for many or all benefits administered by the Veterans Administration * deprived of his rights and benefits as a veteran under both Federal and State laws c. He acknowledged he understood that, if his request for discharge was accepted, he might be discharged with an Undesirable Discharge Certificate. d. He was also advised that he could submit statements in his own behalf. His statement shows: It's more [convenient] to my family and the Army. Also, I don't make enough money to support my family. My bills come [to] more than I make in the Army. I feel like it's no place for me. Although I thought it was, I just wasn't made for the Army at all. I don't understand the people whatsoever. I know I can't be rehabilitated at all. I have no desire of [sic] the Army. I really [tried] hard to adjust my life to the military, but I couldn't make it. My opinion about the Army is no good, because they have [their] own people they like. I [would] rather to work for my own living on the outside, because I feel that I can make my ends meet. I cannot do it in here. e. The applicant and his counsel placed their signatures on the document. 7. The chain of command recommended disapproval of the applicant's request for discharge. The company commander's recommendation shows that the applicant had good service, was capable of honorable service, and he should be afforded the opportunity to complete his service obligation honorably. 8. On 6 February 1973, the separation authority approved the applicant's request for discharge, reduced him to the lowest enlisted grade, and directed that his service be characterized as under other than honorable conditions. 9. The applicant's DD Form 214 (Armed Forces of the United States Report of Separation from Active Duty) shows he entered active duty this period on 30 March 1970 and he was discharged on 7 February 1973 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial, with a UOTHC character of service. He had completed 2 years, 1 month, and 20 days of net active service during this period. He had 258 days of time lost. His rank shows private/pay grade E-1. Among his awards listed on this form is the Combat Infantryman Badge. 10. By letter, dated 23 March 1982, the Army Discharge Review Board advised applicant he was properly discharged denying his request to upgrade his discharge. 11. On 28 February 2002, the ABCMR denied the applicant's discharge upgrade request in Docket Number AR2001063773. 12. In support of his application the applicant provided, in pertinent part, a copy of a Clinical Alternatives, Primary Clinic, Diagnostic Assessment (Outpatient), which is summarized (below) by the Army Review Boards Agency (ARBA) staff psychiatrist. 13. In the processing of this case, an advisory opinion was obtained from the ARBA staff psychiatrist on 5 October 2016. It noted that she was asked to review the case and determine if the applicant had PTSD or any other boardable behavioral health condition at the time of his discharge from the Army. a. The staff psychiatrist's review considered information provided by the applicant, including a psychological assessment (Clinical Alternatives, P.C. – Diagnostic Assessment). She noted the Department of Defense (DoD) electronic medical record was not in use at the time of the applicant's time in service. In addition, there were no military medical records available for review. b. She states: In his application, the applicant states he developed PTSD while serving in Vietnam. He describes multiple combat related traumas – he saw his fellow servicemembers blown up, he was constantly under small arms fire and mortar attack, he saw young children killed during combat. As a result of his experiences in Vietnam, the applicant states he could no longer be around people because he was afraid he would hurt them. As a result of his combat experiences, he developed problems with insomnia, flashbacks, nightmares, anger dyscontrol, irritability, increased startle reflex, hypervigilance and suicidal ideation. He reports he began drinking alcohol and using drugs as a way to cope with these symptoms. As a result of these symptoms, he eventually ended up divorced from his wife. He was found guilty of cocaine and firearm possession and was sentenced to 10 years in prison. He currently lives in a boarding home for men on a very limited budget. He states he is currently sober." c. Results of his psychological assessment, dated 6 September 2013, confirms that the applicant has PTSD secondary to combat experiences in Vietnam." d. The ARBA staff psychiatrist added: It is clear, from the information currently available for review, that the applicant had PTSD at the time of his discharge from the Army. Moreover, he continues to suffer from active PTSD as a result of his combat experiences in Vietnam…the applicant has a mitigating Behavioral Health condition (PTSD) for the offenses which led to his separation from the Army. PTSD can be associated with avoidant behaviors such as being absent without leave. The available documentation supports the existence of a nexus between the applicant's PTSD and the misconduct which led to his separation from the military. 14. On 6 October 2016, the applicant was provided a copy of the ARBA advisory opinion to allow him the opportunity to submit comments or a rebuttal. 15. On 13 October 2016, applicant's counsel stated he and the applicant had reviewed the advisory opinion. They have no objection and believe it accurately reflects the applicant's mental health at the time of his discharge and his current mental health. They asked that the ABCMR proceed with its review and decision. REFERENCES: 1. 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." 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 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. 4. As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis, and treatment of PTSD the DoD acknowledges that some Soldiers who were administratively discharged 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. 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 (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. 6. 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? 7. Although 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 causal relationship of symptoms to the misconduct. 8. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 10 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 Veterans Administration 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. b. Chapter 3, 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. c. Chapter 3, 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. d. When a Soldier is discharged UOTHC, the separation authority will direct an immediate reduction to the lowest enlisted grade. 9. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-11 states that applicants do not have a right to a hearing before the ABCMR. The Director of the ABCMR or the chair of an ABCMR panel may grant a formal hearing whenever justice requires. DISCUSSION: 1. The applicant's request for a personal appearance hearing was considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is considered sufficient to render a fair and equitable decision at this time. 2. The applicant contends that his undiagnosed condition of PTSD contributed to his AWOL. 3. Records show the applicant served honorably on active duty from 30 March 1970 through 13 March 1972. During that period he completed training, was promoted to PFC (E-3), and he completed a tour of duty in Vietnam where he was awarded the Combat Infantryman Badge. 4. The evidence of record shows the applicant's record of indiscipline began after he completed his tour of duty in Vietnam. He was reassigned to Fort Bragg, NC, and his act of indiscipline resulted in court-martial charges being preferred for being AWOL from 2 May 1972 through 14 January 1973, totaling 258 days. 5. The applicant requested and accepted an undesirable discharge certificate with a characterization of UOTHC. It is noted that his chain of command recognized the applicant's previous good service and that he was capable of honorable service. 6. The applicant's available military service records show he experienced a traumatic event during the period (direct combat action). 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. 7. Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible recharacterization of their overall service. The evidence shows: a. On 6 September 2013, a doctor of psychology confirmed that the applicant has PTSD secondary to combat experiences in Vietnam. b. On 5 October 2016, the ARBA staff psychiatrist opined that the applicant has a mitigating behavioral health condition (PTSD) for the offenses which led to his separation from the Army. c. In view of the foregoing, it is reasonable to believe the applicant's PTSD condition existed during his period of service that is under review and that the condition (avoidance criterion) was a causative factor in the misconduct that led to his discharge. 8. If the Board favorably considers upgrading the applicant’s discharge, it would also be appropriate to restore his rank. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012302 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012302 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2