IN THE CASE OF: BOARD DATE: 5 January 2017 DOCKET NUMBER: AR20150013086 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 IN THE CASE OF: BOARD DATE: 5 January 2017 DOCKET NUMBER: AR20150013086 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. IN THE CASE OF: BOARD DATE: 5 January 2017 DOCKET NUMBER: AR20150013086 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 an honorable discharge. 2. The applicant states he feels he did not do anything wrong while serving in the U.S. Army except going absent without leave (AWOL). He recounts his service history, to include a truck accident he was involved in in Vietnam that resulted in a fatality and his exposure to Agent Orange in Vietnam, and describes his current health problems (to include post-traumatic stress disorder (PTSD) and major depression) and the effects of his characterization of service on his eligibility for benefits. He also describes his efforts to have his discharge upgraded and indicates he is confused regarding the characterization of service he now has. 3. The applicant provides a self-authored statement. 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 28 October 1970, the applicant enlisted in the Regular Army. He completed initial entry training and was awarded military occupational specialty 64C (Motor Transport Operator). In January 1971, he was assigned to Fort Hood, Texas. 3. On 27 April 1971, the applicant accepted non-judicial punishment (NJP) for failing to go at the time prescribed to his appointed place of duty. His punishment included a reduction in rank and pay grade to private/E-1, which was suspended and later remitted without action. 4. On 13 July 1971, the applicant accepted NJP for being absent without leave (AWOL) from 22 June to 9 July 1971. 5. On 30 July 1971, after departing Fort Hood for duty in the Republic of Vietnam (RVN), the applicant accepted NJP for missing movement. 6. The applicant arrived in the RVN on or about 3 August 1971. He was assigned to the U.S. Army Support Command for duty as a heavy vehicle driver. 7. On 4 August 1971, the applicant was advanced to private first class. On 18 August 1971, he was advanced to specialist four. 8. On 15 September 1971, the applicant was reassigned to Camp Zama, Japan, for medical treatment as a result of an apparent vehicle accident. He was further evacuated on or about 27 September 1971, to the Medical Holding Company, Madigan General Hospital, Tacoma, Washington. 9. On or about 19 October 1971, the applicant was assigned to Company B, U.S. Army Training Center, Infantry, Fort Lewis, Washington, for duty as a motor transport operator. 10. On 20 October 1971, the applicant accepted NJP for being AWOL on 18 and 19 October 1971. 11. On 23 March 1972, the applicant was convicted by a summary court-martial for being AWOL from 30 December 1971 to 3 March 1972. He was sentenced to confinement at hard labor for 10 days, a forfeiture of $80.00, and a reduction in rank to private/E-1. On 3 April 1972, the applicant's sentence was approved and ordered to be executed, but the execution of that portion of his sentence that provided for confinement at hard labor was suspended. Because the suspension of confinement at hard labor was vacated on 10 April 1972, he was placed in confinement. 12. On or about 18 April 1972, the applicant was released from confinement and sent back to his unit. On or about 19 April to 25 May 1972 (approximately 37 days), he again went AWOL. Charges were subsequently preferred against the applicant for this offense. 13. On 8 June 1972, the applicant voluntarily requested to be discharged under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in lieu of trial by court-martial. a. He acknowledged that he had been afforded an opportunity to consult with appointed counsel who fully advised him of his rights. b. He acknowledged he had not been subjected to coercion and understood that if his request for discharge was accepted, he could be discharged under other than honorable conditions and furnished a DD Form 258A (Undesirable Discharge Certificate). c. He acknowledged his understanding that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he may be deprived of his rights and benefits as a veteran under both Federal and State law. d. Additionally, he acknowledged he understood he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge. 14. On 14 June 1972, the separation authority approved the applicant's request for discharge and directed that he be issued a DD Form 258A. On 20 June 1972, the applicant was discharged accordingly. His DD Form 214, as issued at the time, indicates he was administratively separated in lieu of court-martial. His characterization of service was under other than honorable conditions. 15. In a letter, dated 3 February 1976, the Army Discharge Review Board (ADRB) informed the applicant that his request for a change in the type and nature of his discharge had been denied. 16. An Office of the Secretary of the Army (OSA) Form 172 (ADRB Brief, Statement of Findings, Conclusions and Reasons; and Case Report and Directive), dated 12 December 1977, indicates that the applicant's discharge was upgraded to a general discharge (GD), under honorable conditions under the Department of Defense (DOD) Special Discharge Review Program (SDRP). 17. In a letter, dated 16 June 1978, the President, ADRB, informed the applicant that the ADRB could not affirm his DOD SDRP upgraded discharge under review standards required by Public Law 95-126. He was advised that this action did not change the discharge that he then had, but may impact his ability to acquire VA benefits. 18. In a letter, dated 1 August 1978, the Adjutant General, U.S. Army, notified the applicant that the previous upgrade of his discharge had been re-reviewed by the ADRB as required by Public Law 95-126. As a result of this review, the ADRB determined that he did not qualify for an upgrade under the new uniform standards for discharge review, and that his DOD SDRP upgraded discharge was not affirmed. He was also informed that due to the new law he would not be able to use his upgraded discharge under the DOD SDRP to qualify for VA benefits. 19. In the processing of this case, a staff medical advisory opinion was obtained. The physician stated the following: a. The applicant served in the Army from 28 October 1970 to 20 June 1972 as a 62B20 (Construction Equipment Repairer). He received an under other than honorable conditions discharge in accordance with Army Regulation 635-200. On 12 December 1977, the applicant’s discharge was upgraded to under Honorable Conditions by the Department of Defense Special Discharged Review Program; however, a second review by the Discharge Review Board, as required by Public Law 95-126, denied the previous upgraded discharges. Based on Public Law 95-126, enacted in October 1977, VA benefits were denied to any former service member who had been AWOL for more than 180 consecutive days or who had been classified as a deserter or conscientious objector. Therefore, although he was in the process of undergoing medical treatment at the VA Hospital in San Diego, his discharge upgrade was not affirmed and he was no longer entitled to VA benefits. b. On 30 July 2015, the applicant requested the ABCMR upgrade his discharge claiming his undesirable discharge was related to his mental health. He served in the RVN from 3 August to 27 September 1971, and was medically evacuated due to being injured in a vehicle accident. The applicant contends that subsequent to returning from the RVN, he went AWOL 5 times to avoid seeing the North Vietnamese Army and Vietcong around Fort Lewis and everything else that reminded him of the Vietnam War. He contends that he developed PTSD following the death of a friend who was killed in a truck accident; seeing women and children burned, bombed, shot, and killed; and experiencing the loss of fellow Soldiers. This case was previously denied after the Board determined his discharge was proper and equitable and voted to deny relief. c. Military records indicate the applicant’s early separation from the Army was based on a misconduct including a total of 113 days of lost time resulting in four NJPs, a summary court-martial, and a lengthy period of AWOL (30 December 1971 to 3 March 1972). Military records dated 8 June 1972 indicate he requested an administrative discharge in lieu of trial by court-martial. He acknowledged understanding he could be discharged under other than honorable conditions which could deprive him of both Army and VA benefits. In a self-statement, he expressed his desire to be discharged from the Army for the betterment of himself and the Army. He further stated that the Army had destroyed him mentally and physically, that he could never do what he wanted to do, and that the Army prevented him from doing what he thought was best for him. d. A military physical examination dated 13 June 1972 found the applicant to be medically and psychiatrically cleared for separation. A VA progress note dated 24 February 1998 indicates he was diagnosed with PTSD, treated with medication, and assigned to a treatment clinic. His record is void of further supporting medical information or documentation regarding the nature or severity of PTSD symptoms or continued receipt of behavioral health services. e. The Army Review Boards Agency (ARBA) Clinical Psychologist was asked to determine if there is a nexus between the information/diagnoses contained in the documentation provided and the misconduct that resulted in the applicant's discharge. Based on a thorough review of available medical records, there is no evidence that the applicant met criteria for a mental health condition during his military service. The applicant’s record is void of the specific facts and circumstances concerning events that could have contributed to PTSD or another mental health service-connected diagnosis leading to his discharge from the Army. This observation does not negate his post-service diagnosis of PTSD from the VA; however, the VA conducts evaluations based on different standards and regulations. Furthermore, the applicant accepted NJP for four occasions of AWOL that occurred prior to deployment in the RVN. He was medically and psychiatrically cleared prior to separation from the Army and in his voluntarily requested discharge in lieu of a court martial, he acknowledged his understanding of the implications involved in receiving an undesirable discharge. Overall, there is no evidence that his post-service diagnosis of PTSD mitigated his misconduct. 20. On 2 November 2016, a copy of the staff medical advisory was sent to the applicant for his information and opportunity to respond. No response was received. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. At the time, an undesirable discharge was normally considered appropriate; however, if warranted, the discharge authority may direct an honorable or general discharge. b. 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. c. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. 2. On 4 April 1977, the DOD directed the military services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973. This program, known as the DOD SDRP, required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge. Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge and a record of good citizenship since the time of discharge, would also be considered upon application by the individual. 3. On 8 October 1977, Public Law 95-126 was enacted. This legislation denied VA benefits to any former service member who had been AWOL for more than 180 consecutive days or who had been classified as a deserter or a conscientious objector. The DOD was required to establish historically consistent, uniform standards for discharge reviews. Reconsideration using these uniform standards was required for all discharges previously upgraded under the DOD SDRP and certain other programs. Individuals whose SDRP upgrades were not affirmed upon review under these historically consistent uniform standards were not entitled to VA benefits, unless they had been entitled to such benefits before their SDRP review. 4. 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." 5. 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. 6. 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. 7. 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. 8. 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. 9. 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? 10. 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 applicant contends that his general discharge under the DOD SDRP should be upgraded to an honorable discharge because he feels he did not do anything wrong while serving in the U.S. Army. 2. The available evidence shows that the applicant served in the RVN for about 1 month prior to being medically evacuated due to injuries received in a motor vehicle accident. 3. The available evidence further shows the applicant accepted multiple NJPs and was convicted by a summary court-martial for being AWOL. He requested discharge in lieu of court-martial for yet another period of AWOL. The evidence shows his rights were fully protected during his separation processing. The applicant's discharge was later upgraded under the provisions of the DOD SDRP, but the upgrade was not affirmed upon further review required by law. 4. A clinical psychologist reviewed the applicant’s personnel and medical records for the purpose of determining if there is a nexus between his post-service diagnosis of PTSD and his misconduct while on active duty. After a thorough review of the available medical records, the psychologist found no evidence to support a conclusion that the applicant met the criteria for a mental health condition during his military service. The psychologist noted the applicant’s record is void of the specific facts and circumstances concerning events that could have contributed to PTSD or another mental health service-connected diagnosis leading to his discharge from the Army. The psychologist further noted that this observation does not negate his diagnosis from the VA, which conducts evaluations based on a different set of standards and regulations. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013086 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013086 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2