BOARD DATE: 21 February 2017 DOCKET NUMBER: AR20150015879 BOARD VOTE: ____x_____ __x_____ ___x_____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 21 February 2017 DOCKET NUMBER: AR20150015879 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by re-issuing the applicant’s DD Form 214 to show his character of service as "General, Under Honorable Conditions" and restoring his rank/pay grade to private first class/E-3 with an effective date of rank of 15 August 1972. ____________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: 21 February 2017 DOCKET NUMBER: AR20150015879 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 (UOTHC) discharge. 2. The applicant states he was not reoriented on his return from Vietnam. He had nerve problems and could not sleep at night. 3. The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and multiple Department of Veterans Affairs (VA) medical documents. 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 21 May 1970. He was advanced to specialist four/pay grade E-4 on 19 October 1970 as shown on his DA Form 20 (Enlisted Qualification Record). He then served in Vietnam from 3 July 1971 to 6 April 1972. 3. He accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three separate occasions: * absent without leave (AWOL) from on or about 15 June to 28 June 1971 (prior to Vietnam service) * AWOL from on or about 10 May to 2 June 1972 (post-Vietnam service) * failing to go at the time prescribed to his appointed place of duty on 4 August 1972 (post-Vietnam service) – his punishment included reduction to the rank of private first class (PFC)/E-3 (suspended for 30 days) 4. On 15 August 1972, suspension of the applicant's reduction was vacated due to his apparent AWOL status as of 14 August 1972. He was reduced to PFC/E-3. 5. On 13 October 1972, charges were preferred against the applicant for being AWOL from on or about 14 August to on or about 7 October 1972. 6. On 18 October 1972, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. Following counseling, the applicant submitted a voluntary written request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service – in lieu of trial by court-martial. 7. In his request for discharge, he indicated he understood that if his request for discharge was accepted, he could receive an under other than honorable conditions characterization of service and be furnished an Undesirable Discharge Certificate. He acknowledged he understood that such a discharge could deprive him of many or all Army benefits, could make him ineligible for many or all benefits administered by the VA, and could deprive him of his rights and benefits as a veteran under both Federal and State laws. He also elected to submit a statement in his own behalf. He stated he wished to be discharged from the service because he was unable to sustain military life any longer. 8. His chain of command recommended approval of his request with issuance of an Undesirable Discharge Certificate. 9. On 3 November 1972, the separation authority approved the applicant's discharge request and directed his discharge under the provisions of Army Regulation 635-200, chapter 10, with an Undesirable Discharge Certificate and reduction to the lowest enlisted grade. 10. On 8 November 1972, the Army discharged him for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, in the rank/grade of PVT/E-1. His DD Form 214 indicates he completed 2 years, 4 months, and 12 days of total active service with 67 days of lost time. 11. On 17 January 1983, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge. 12. On 25 October 2016, a psychiatrist within the Army Review Boards Agency (ARBA) opined: a. There is no evidence of post-traumatic stress disorder (PTSD) or other behavioral health symptoms or diagnosis in the applicant’s available military records. A Mental Status Examination (FP OP 453) dated 11 October 1972, indicates he had no significant mental illness, was mentally responsible and could tell right from wrong. He was cleared to participate in any administrative proceedings deemed appropriate by his commander. The applicant met military medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness). b. The VA medical progress notes show he meets the Statistical Manual of Mental Disorders Fifth Revision (DSM-V) criteria for post-traumatic stress disorder (PTSD), chronic due to his combat experiences in Vietnam. The applicant was noted to have the following symptoms of PTSD: insomnia, intrusive thoughts, nightmares, avoidant behaviors, negative beliefs about self and others. Being involved in frequent mortar attacks was identified as his traumatic combat stressor. c. The lack of documentation of PTSD symptoms in the applicant’s military medical records does not necessarily indicate that the applicant did not have PTSD while in the military. It is not uncommon for PTSD symptoms to be overlooked. The applicant’s history of going AWOL within weeks of returning from Vietnam is consistent with the type of avoidant behaviors seen in PTSD. d. It appears the applicant developed PTSD from his combat experiences in Vietnam. As PTSD is often associated with avoidant behaviors, there is likely a nexus between the applicant's PTSD and his two incidents of AWOL which occurred after he returned from Vietnam. Therefore, the diagnosis of PTSD would be considered mitigating for these two episodes of AWOL. The diagnosis of PTSD would not be considered mitigating for the incident of AWOL which occurred prior to the applicant going to Vietnam (15 June - 28 June 1971) as this incident of AWOL precedes the applicant’s development of combat related PTSD. 13. ARBA forwarded a copy of the advisory opinion to the applicant to allow him the opportunity to provide comments. He did not respond. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of that regulation provides, in pertinent part, 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. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, at the time an undesirable discharge was normally considered appropriate. c. 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. d. 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. 2. PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster. The Diagnostic and 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 a 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-V 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 includes 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. 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 BCMs/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 with a characterization of service of under other than honorable conditions 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. 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 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 under other than honorable conditions 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 under other than honorable conditions. 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 confirms the applicant’s discharge proceedings were conducted in accordance with law and regulations in effect at the time. The characterization of his discharge was commensurate with the reason for discharge and his overall record of military service in accordance with the governing regulations in effect at the time. 2. The evidence of record shows the applicant served in Vietnam from 3 July 1971 to 6 April 1972. His disciplinary history post-Vietnam service shows he received one Article 15 for being AWOL from 10 May 1972 to on or about 2 June 1972. 3. The records further shows court-martial charges were preferred against him for being AWOL from 14 August 1972 to 7 October 1972. After consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial. 4. The applicant states he had nerve problems and could not sleep at night post-Vietnam service. His service record is void of sufficient documentation indicating he was diagnosed with PTSD or other behavioral health conditions while on active duty. The ARBA psychiatrist opined that the lack of documentation of PTSD symptoms in the applicant’s military records does not necessarily indicate that the applicant did not have PTSD while in the military. The psychiatrist noted that it is not uncommon for PTSD symptoms to be overlooked, while his history of going AWOL within weeks of returning from Vietnam is consistent with avoidant behaviors seen in PTSD. 5. Soldiers who suffer from PTSD or other mental health or behavioral health conditions and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible recharacterization of their overall service. /NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150015879 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150015879 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2