BOARD DATE: 17 November 2016 DOCKET NUMBER: AR20150012940 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: 17 November 2016 DOCKET NUMBER: AR20150012940 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: 17 November 2016 DOCKET NUMBER: AR20150012940 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 under other than honorable conditions discharge to a general, under honorable conditions discharge. He also requests a personal hearing. 2. The applicant states his discharge should be upgraded because he served time in combat in Vietnam. When he returned from Vietnam, he had post-traumatic stress disorder (PTSD). At the time, he did not realize what was wrong with him. He could not think straight anymore. He was 19 years old when he returned from Vietnam. 3. The applicant provides six pages of a medical record and a statement 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. The applicant enlisted in the Regular Army on 1 August 1967 when he was 18 years, 3 months, and 27 days old and he held military occupational specialty (MOS) 36C (Wire Systems Installer). On 14 March 1968, he arrived in Vietnam. He was subsequently assigned to the 567th Transportation Company, 71st Transportation Battalion (BN), Vietnam. 3. He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows on: * 29 July 1968, for being derelict in the performance of his duties while on guard duty * 25 November 1968, for failing to go to his appointed place of duty at the prescribed time and for reporting to duty on another occasion in an incapacitating condition as a result of previous indulgence in intoxicating liquor 4. He departed Vietnam on 10 March 1969 and failed to report to his next duty station on the required date. On 28 April 1969, he was assigned to Headquarters and Headquarters Company (HHC), 58th Signal BN, Fort Lewis, WA. 5. On 15 May 1969, he received NJP under the provisions of Article 15, UCMJ, for being absent without leave (AWOL) from his assigned unit from 12 to 28 April 1969. 6. On 20 May 1969, he was assigned to Company B, 58th Signal BN. On 8 August 1969, he was reported as AWOL from his assigned unit. 7. In a letter to the BN commander, dated 11 August 1969, his immediate commander stated: a. The applicant was assigned to his unit from HHC after reporting to the BN in an AWOL status. The applicant had been living in Tacoma, WA, with a woman he said was his wife. He told the applicant to bring in a marriage certificate or he would move him into the barracks. He then married the woman. b. The applicant failed to make the 0730 formation on two occasions. He had his platoon sergeant go to his house and pick him up. He came in with his wife and said he had a child in the hospital and he needed to see about getting the child out of the hospital. He was informed that he (the commander) intended to administer him NJP under Article 15, UCMJ, but would allow him and his wife to go to Tacoma to see about the release of the child. He sent Staff Sergeant S with them because the applicant did not own a car. c. On 14 August 1969, his spouse called him and told him she was presently married to two men and asked his help in clearing it up. He told her he would be glad to help and for her and the applicant to meet him at his office the next day. She stated she would be arrested for bigamy and that she told the applicant of her marital status prior to their getting married. He thought the applicant may have felt all of his problems were coming to a head and he probably went AWOL to avoid facing his problems. 8. On 22 August 1969, the applicant was arrested by civil authorities in Canada for vagrancy and was incarcerated at the Prince Albert City Jail, Saskatchewan, Canada. He was subsequently tried and found not guilty. 9. On 5 September 1969, he was returned to military control and at 1030 that day he was returned to his assigned unit. On 5 September 1969, court-martial charges were preferred against him for one specification of being AWOL from 8 August to 5 September 1969. 10. At 1503 on 5 September 1969, he was reported as AWOL from his assigned unit and he was dropped from the rolls (DFR) as a deserter. 11. In a memorandum, dated 19 January 1970, the Commanding General, Fort Lewis, WA, was notified that a Federal Bureau of Investigation (FBI) report showed the applicant had been arrested by civil authorities in Tacoma, WA, and charged with grand larceny auto theft. He was incarcerated at Pierce County Jail, Tacoma. 12. The complete facts and circumstances surrounding the applicant's discharge processing are not known. However, Special Orders Number 117, dated 27 April 1970, issued by the U.S. Army Personnel Center, Fort Lewis, discharged him effective 27 April 1970 by reason of conviction by a civil court. These orders shows his permanent address as Pierce County Jail, Tacoma. 13. The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged under the provisions of Army Regulation (AR) 635-206 (Personnel Separations - Discharge - Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion)) for misconduct -conviction by a civil court (separation program number (SPN) 284), with an under other than honorable conditions characterization of service. He completed 2 years, 1 month, and 5 days of net active service and had 279 days (9 months and 9 days) of lost time due to being AWOL and/or in confinement. 14. There is no evidence in his available records that shows he was ever treated for or diagnosed with any mental or medical condition/disorder while serving on active duty. 15. There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 16. The applicant provides medical records that show he was seen on 24 October 2013 for a follow-up visit. a. In the review of systems under psychology, his health care provided noted, in part, he had no response symptoms worse with stress, no neck tightness with stress, no mood swings, no depression, no anxiety, no mania, no stressors, no sleep disturbances, no suicidal ideation, no paranoia, no hallucinations, no mental or physical abuse, and no eating disorders. b. In the assessments column the medical provider listed various medical conditions including PTSD not otherwise specified (NOS) and depression with anxiety. 17. The applicant also provides a statement of support, undated, wherein his daughter stated, in part: a. The year the applicant served in Vietnam he went through many hardships, killed countless enemy soldiers, and was only 18 years old when he went overseas. He returned from Vietnam with PTSD and it was hard growing up with a father who had PTSD and was not being treated by the Department of Veterans Affairs (VA) for PTSD. b. He started drinking as soon as he returned from Vietnam to help deal with the memories and continued to drink until 2010 when he almost died from drinking. While in Vietnam, he accomplished his duties as a Soldier. Whether or not he went AWOL, he deserved his medical benefits because he needed a therapist for PTSD and needed medical care for other medical conditions. 18. In the processing of this case an advisory opinion was received on 3 October 2016 from a Clinical Psychologist, Army Review Boards Agency (ARBA). The advisory official stated: a. The applicant served on active duty from 1 August 1967 to 27 April 1970 in MOS 36C and served in Vietnam from 14 March 1968 to 10 March 1969. He received an under other than honorable conditions discharge in accordance with AR 635-206, SPN 284, for misconduct - due to a civil conviction. b. On 1 July 2015, the applicant requested the ABCMR upgrade his discharge based on PTSD, claiming his discharge was related to his mental health. The applicant contends after serving in Vietnam he had PTSD, did not realize what was wrong, and could not think straight anymore. c. Military records indicated the applicant was AWOL on three occasions; 12 to 27 April 1969, 8 August to 4 September 1969, and 5 September 1969 to 27 April 1970. During his military service, there were other behavioral concerns including being derelict in his duties, arriving to work intoxicated, and issues related to marital/family stressors. d. A medical report, dated 24 October 2013, indicated a diagnosis of PTSD and the use of alprazolam for depression and anxiety. However, the record provided had no further supporting medical information or documentation regarding the nature or severity of the applicant's behavioral health symptoms. e. The ARBA Clinical Psychologist was asked to determine if the applicant's military separation was due to a diagnosis of PTSD or another boardable behavioral health condition. This opinion is based on the information provided by the Board as the Department of Defense (DOD) electronic medical record (AHLTA} was not in use at the time of his service. f. Based on a thorough review of available medical records, there is no evidence that the applicant met the criteria for PTSD during his military service (emphasis added). The applicant's record is void of the specific facts and circumstances concerning events that could have contributed to a PTSD service-connected discharge from the Army. Given the absence of documentation regarding the nature or severity of the applicant's symptoms or other service documents indicating exposure to trauma and its impact on functioning, an advisory opinion about the applicant meeting DSM-5 criteria for PTSD or any other mental health condition, and whether or not these diagnoses mitigated his misconduct could not be rendered. 19. On 3 October 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 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 Discharge Review Boards (DRBs) and Service Military Boards for Correction of Military (BCM)/Naval Records (NR) 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. 11. AR 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record; recommend a hearing when appropriate in the interest of justice; or deny applications when the alleged error or injustice is not adequately supported by the evidence and when a hearing is not deemed proper. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully 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 is sufficient to render a fair and equitable decision at this time. 2. 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. Although the specific facts and circumstances surrounding his discharge processing are not known, it appears he was arrested and incarcerated on 28 November 1969 for grand larceny and was subsequently tried and convicted in civil court for this crime. Accordingly, he was discharged on 27 April 1970 for misconduct - conviction by a civil court with an under other than honorable conditions characterization of service. At the time of his discharge, he was serving time in the county jail and had over 9 months of lost time due to being AWOL and/or in confinement. 3. In the absence of evidence to the contrary, it is presumed that 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 are appropriate considering all the facts of the case. 4. Notwithstanding the applicant's contention that he may have suffered from PTSD after he returned from Vietnam, 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, while he provides documentation that shows he was assessed for PTSD in 2013, as stated by the advisory official, there is insufficient evidence that shows PTSD or any other behavioral health condition contributed to the misconduct that led to his discharge. 5. Records show the applicant was almost 20 years of age at the time of his offenses. However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service. 6. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012940 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012940 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2