IN THE CASE OF: BOARD DATE: 5 January 2017 DOCKET NUMBER: AR20150012495 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ___x____ ____x___ ___x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 5 January 2017 DOCKET NUMBER: AR20150012495 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. awarding him the Purple Heart for wounds received in action on 27 October 1952 and b. reissuing his DD Form 214 to show his character of service as under honorable conditions (General) and to show the Purple Heart among his authorized awards. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading his discharge to honorable. _____________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: 5 January 2017 DOCKET NUMBER: AR20150012495 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 that his dishonorable discharge (DD) be upgraded to an honorable discharge due to post-traumatic stress disorder (PTSD) and award of the Purple Heart (PH) for a wound he sustained in combat. 2. The applicant states: a. His period of service from 20 June 1951 through 7 April 1954 was honorable. b. On 27 October 1952, he was hit in the face with a mortar round during an enemy attack. As a result of his injuries, he had to stay in the hospital for approximately 4 months to heal. Many of the troops around him were killed during the attack, and the event was very traumatic for him. c. He was awarded a PH and physically rehabilitated, but his emotional/psychological injuries went untreated. It was not suggested until many years later that his undiagnosed PTSD may have been the cause of his DD. 3. He provides Department of Veterans Affairs (VA) correspondence, information from hospital admissions cards created by the Office of the Surgeon General (OTSG), and a list of names from the Korean Casualty File. 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's complete military records are not available. A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973. It is believed that some of his records were lost or destroyed in that fire. However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case. 3. The applicant’s reconstructed record shows that on 20 June 1951, he enlisted in the Regular Army (RA). After he completed training, he was awarded military occupational specialty 540.00 (Laborer). It appears he reenlisted on 8 April 1954. 4. The applicant's name appears in the Korean Casualty File and in data compiled by OTSG from hospital admission cards. These records show he sustained an injury in the North Korean sector on 27 October 1952 when he was wounded as a result of hostile action by a missile. He was hospitalized and later returned to duty. 5. The applicant’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was convicted by court-martial for desertion. The complete facts and circumstances surrounding his court-martial and discharge are not available for review with this case. His DD Form 214 shows he had 468 days of lost time. On 20 June 1957, he was discharge with a DD. Item 27 (Decoration, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 does not reflect award of the PH; however, item 29 (Wounds Received as a Result of Action with Enemy Forces (Wounds), shows “Mortar – Shrapnel Face – Korea – 27 Oct 52.” 6. The applicant provides a VA correspondence, dated 26 June 2015, which shows he has been awarded a service-connected disability rating for PTSD. 8. In processing this case, an advisory opinion was obtained from the Army Review Boards Agency (ARBA) psychiatrist. The advisory official stated: a. Based on the information currently available for review, the applicant’s contention that he had undiagnosed PTSD while in the Army appears to be credible. He suffered a horrific injury during combat and witnessed the death of many of his fellow Soldiers. b. Supporting his contention that he developed PTSD while in the military is the fact that he has been awarded a 30 percent disability rating for PTSD by the VA. c. It is the reviewing psychiatrist’s opinion that the applicant had a mitigating behavioral health condition 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. 9. The applicant was given a copy of the advisory opinion for an opportunity to respond. He did not respond. REFERENCES: 1. Army Regulation 635-204 (Personnel Separations - Dishonorable and Bad-Conduct Discharges), then in effect, set forth the basic authority for the separation of enlisted personnel. It stated that an enlisted person would be discharged with a DD pursuant only to an approved sentence of a general or special court-martial and the discharge would be accomplished only after the completion of the appellate process and affirmation of the court-martial findings and sentence. 2. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed. 3. Army Regulation 635-200 (Personnel Separations – General Provisions for Discharge and Release), in effect at the time, prescribed policy and procedures for enlisted separations. a. An HD is a separation with honor. It is conditioned upon proper military behavior, and proficient and industrious performance of duty, giving due regard to the rank or grade held and the capabilities of the individual concerned. (1) Notwithstanding the criteria listed below, when disqualifying entries are outweighed by subsequent honest and faithful service over a greater period of time or the nature of a conviction, in the opinion of the officer effecting discharge, is not too serious, and the remainder of the service has been honorable, an HD can be granted. (2) To receive an HD, the individual had to meet the following qualifications: • conduct ratings of at least "Good" • efficiency ratings of at least "Fair" • not convicted by a GCM • not convicted more than once by a SPCM b. 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 HD. 4. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR 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. 5. Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the PH is awarded for a wound sustained while in action against and enemy or as a result of hostile action. Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record. This regulation also provides that there are no time limitations for requests for award of the PH. 6. 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." 7. 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. 8. 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. 9. 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. 10. 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. 11. 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? 12. 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. DISCUSSION: 1. The evidence of record shows the applicant was given a DD due to a court-martial conviction. In the absence of evidence showing otherwise, it must be presumed that the discharge was executed accordance with the governing regulations in effect at the time. 2. The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed. In an advisory opinion, the ARBA psychiatrist concluded that his PTSD was a causative factor in the misconduct that led to his discharge. The ARBA psychiatrist found there was a nexus between the applicant's PTSD and the misconduct which led to his separation. 4. The applicant states he was awarded a PH due to a wound he received as a direct result of action against or by an organized enemy in Korea, on or about or about 27 October 1952. His DD Form 214 does not reflect this award, but his wound is listed in item 29 and is corroborated by other records. The evidence indicates he met the criteria for award of the PH. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012495 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012495 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2