IN THE CASE OF: BOARD DATE: 26 January 2016 DOCKET NUMBER: AR20150013942 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: 26 January 2016 DOCKET NUMBER: AR20150013942 BOARD DETERMINATION/RECOMMENDATION: 1. 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 showing the general, under honorable conditions, characterization of service he received under the Special Discharge Review Program was affirmed under uniform standards as required by Public Law 95-126. 2. The Board further determined that 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 the characterization of service 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: 26 January 2016 DOCKET NUMBER: AR20150013942 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, in effect, an upgrade of his characterization of service to honorable so he may be eligible for treatment for post-traumatic stress disorder (PTSD). He also requests to have an unspecified identification (ID) card changed from “mental” to “service connected – PTSD”. 2. The applicant states: a. He was drafted into the Army on 2 July 1968, and then on 8 July 1968, he volunteered when he was 18 years old. He completed airframe repairman school and was at the top of his class; however, he was refused work in this area because he was black, even though he had blue eyes and blond hair and could have passed for Caucasian. He had dreams of going to college but the Army had other plans. He was still a child and striving to become a productive citizen. b. Going to Vietnam was new to him. He had never seen anyone being killed, much less killed anyone, which was a terrible pill to swallow. He thought being an airframe repairman would be beneficial when he was discharged and entered civilian life. He found it hard to cope with the fact that he was fighting for all Americans, yet discrimination was ever present. To see a confederate flag being flown in a battle zone was a slap in the face. c. Often times, he had to get away to clear his mind of the horrors of Vietnam to save his sanity. He did not like the fact that he was treated like a second hand citizen. d. He often thought of what it would be like if he was killed and what would happen to his family. He still has nightmares, talks in his sleep, has night sweats, and still recalls events in Vietnam as if they were happening today. 3. The applicant provides: * high school diploma from the Jefferson County Schools of Alabama * DD Form 293 ( Application for the Review of Discharge from the Armed Forces of the United States) * General Discharge Certificate * self-authored statement with photographs * letter from his spouse * medical documents from the Department of Veterans Affairs (VA) Medical Center (VAMC), Birmingham, AL * letter from the VA Medical Center, dated 28 April 2015 * letter from the VA, dated 8 July 2015 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. With regard to the applicant's request for a correction to his ID card to read “service connected – PTSD” vice “medical,” the ABCMR operates under the procedures set forth in Army Regulation 15-185, in which a clear and concise action is requested under to purview of the ABCMR. Since he was not medically discharged from the Army, nor is he a retiree, it does not appear to be within the ABCMR's purview to make a determination. Therefore, no further action can be taken at this time. The ID card will not be discussed further in these proceedings. 3. On 2 July 1968, the applicant was inducted into the Army of the United States. On 8 July 1968, he was honorably discharged and immediately reenlisted on 9 July 1968 into the Regular Army. Upon completion of initial entry training he was awarded military occupational specialty 68G (Airframe Repairman). 4. A DA Form 20 (Enlisted Qualification Record) shows he served in U.S. Army Pacific (USARPAC) – Vietnam from 19 March 1969 to 18 March 1970. 5. DA Forms 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ) shows the applicant received the following nonjudicial punishment (NJP): * On 17 February 1970, for disrespect toward a superior commissioned officer * On 27 October 1970, for failing to obey a lawful order by a noncommissioned officer to get his hair cut 6. A DA Form 20B (Insert Sheet to DA Form 20) shows on 18 December 1970, the applicant was convicted at a special court-martial of being absent without leave (AWOL) from 3 November 1970 to 2 December 1970. He was sentenced to a reduction to private (PVT)/E-1, hard labor without confinement for 45 days, and a reprimand. 7. On 8 February 1971, the applicant received NJP for failure to go at the time prescribed to his appointed place of duty, to wit: work call formation. 8. A DD Form 458 (Charge Sheet) shows the applicant was pending a court-martial for being in an AWOL status from 23 February 1971 to 10 September 1971, approximately 6 months and 15 days. 9. On 15 September 1971, the applicant was afforded the opportunity to consult with legal counsel and submitted a voluntary request for discharge for the good of the service, under the provisions of Army Regulation 635-200 (Personnel Separation – Enlisted Personnel), chapter 10, in lieu of trail by court-martial. He was advised of his rights and indicated: * he understood the possible ramifications of an UD Certificate * that, as a result of such discharge he shall be deprived of many or all Army benefits * that he may be ineligible for many or all benefits administered by the VA * that he may be deprived of his rights and benefits as a veteran under both Federal and State law * that he may expect to encounter substantial prejudice in civilian life * he would not submit a statement on his own behalf 11. On 5 October 1971, the applicant’s commander preferred court-martial charges against him for being AWOL. 12. On 21 October 1971, the appropriate separation authority approved the applicant’s request in lieu of trial by court-martial, directed his reduction to pay grade E-1, and the issuance of an UD Certificate. 13. On 27 October 1971, the applicant was discharged. He was assigned separation program number 246 (for the good of the service) and received a UD Certificate His DD Form 214 shows he had 2 years, 7 months, and 29 days of creditable service with 240 days of lost time. 14. The applicant submitted a request to the Army Discharge Review Board (ADRB) requesting an upgrade to his UD; however, on 27 September 1973, they denied his request. 15. On 10 November 1975, in a letter issued by the U.S. Department of Justice, Office of the Pardon Attorney, Washington, DC, the applicant received a full and unconditional pardon and clemency discharge to replace his less than honorable discharge. 16. On 19 December 1975, the applicant received a DD Form 215 (Correction to DD Form 214 (Report of Separation from Active Duty)) showing he was granted a clemency discharge pursuant to Presidential Proclamation Act 4313. 16. In a letter from the Office of the Adjutant General and the Adjutant General Center, Washington, DC, dated 21 June 1977, to the applicant, he was informed the his characterization of service was upgraded to general, under honorable conditions, under the Department of Defense Special Discharge Review Program (SDRP) enacted in April 1977. (This program directed that all less than fully honorable discharges issued between 4 August 1964 and 28 March 1973, be reviewed for possible upgrade to honorable or general for those individuals who had either completed a normal tour of duty in Southeast Asia, been wounded in action, 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.) 17. He was reissued a DD Form 214 with the characterization of service shown as under honorable conditions (general). 18. On 15 November 1978, the applicant was notified that the previous upgrading of his discharge had been re-reviewed by the ADRB as required by Public Law 95-126. As a result of this review the Board determined that his discharge did not qualify for upgrading under the new uniform standards for discharge; therefore, his discharge upgrade was not affirmed. The review did not change or modify his upgraded discharge, but because of the new law, he would be unable to use the upgraded discharge to qualify for benefits under the VA. 19. The applicant provided: a. Medical documentation from the VA Medical Center, Birmingham, AL., listing his issues of depression and chronic PTSD as well as other ailments. b. A letter by the VA psychiatrist, dated 28 April 2015, indicating the he has been diagnosed with PTSD secondary to his military service in Vietnam. The letter states that he witnessed traumas such as witnessing his friend getting killed and a helicopter containing his friends getting shot down. The applicant’s psychiatrist states he has been in treatment for his PTSD and depression since 2010 and reports that he has been treated with medications and psychotherapy; however, his prognosis is guarded and his symptoms have ben chronic and longstanding. His PTSD remains active and he regularly experiences symptoms of irritability, nightmares, night sweats, and intrusive recollections. c. A self- authored letter which tells his story of the horrific events that happened while he was in Vietnam, including racial discrimination and the extremely hostile and dangerous events that he witnessed as a minority. d. A letter from his spouse stating how much the applicant changed once he returned from Vietnam. She has been a nurse for over 40 years and has been married to the applicant for the past 46 years. In all that time, she has lived through all of his PTSD issues and problems. It has been a shame that he had to go through racist issues serving his country and experiencing all the awful events. The Army owes him the opportunity to right the wrong done to him by the Army. 20. An advisory opinion from the ARBA Staff Psychiatrist, dated 11 October 2016, recommends approval of the applicant’s request. It states, that there is no documentation of PTSD or other behavioral health symptoms or diagnosis in the applicant’s military records. However, the applicant suffered from undiagnosed PTSD while on active duty. Because PTSD can be associated with avoidant behaviors, there is a likely nexus between ahis PTSD and the offenses which resulted in his discharge from the Army for AWOL. His PTSD is considered mitigating for the offenses which led to his UOTHC discharge from the Army. 21. The advisory opinion was provided to the applicant for an opportunity to respond. He did not respond. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred. A discharge under other than honorable conditions is normally considered appropriate. b. Paragraph 1-9d provides an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. c. Paragraph 1-9e states 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. 2. 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." 3. 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. 4. 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 5. 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. 6. 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 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 (emphasis added). 7. 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? 8. 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's discharge proceedings for misconduct were conducted in accordance with law and regulations in effect at the time. The characterization of the applicant's service was commensurate with the reason for discharge and overall record of military service in accordance with the governing regulations in effect at the time. 2. His discharge was later upgraded under the SDRP, but the upgraded characterization of service was not affirmed under the review required by Public Law 95-126. This decision, in effect, precluded him from receiving benefits associated with a general or honorable discharge. This Board has the authority to recommend correction of a record to show that an upgrade under the SDRP was affirmed. 3. 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. 4. Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible re-characterization of their overall service. 5. Subsequent to these experiences, evidence shows the applicant was diagnosed with PTSD and depression by the VAMC, Birmingham, AL. 6. It was the opinion of the ARBA Staff Psychiatrist that the applicant had a mitigating Behavioral Health Condition (PTSD) for the offenses which led to his separation from the Army. PTSD symptoms can be associated with the use of illicit drugs and avoidant behaviors such as being AWOL. 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. 7. An honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance. 8. 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) AR20150013942 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013942 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2