BOARD DATE: 22 June 2017 DOCKET NUMBER: AR20150017682 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 BOARD DATE: 22 June 2017 DOCKET NUMBER: AR20150017682 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: a. voiding his DD Form 214 for the period ending 18 June 1975 and b. issuing him a new DD Form 214 for the period ending 18 June 1975 showing his: * character of service as "general under honorable conditions" * grade, rate, or rank as "PV2" * pay grade as "E-2" * date of rank as "11 April 1974" 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading his character of service to fully 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. BOARD DATE: 22 June 2017 DOCKET NUMBER: AR20150017682 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 discharge under other than honorable conditions (UOTHC) to honorable. 2. The applicant, through his Congressional representative, states he is an Army veteran who served in Vietnam and was exposed to Agent Orange. He is currently being treated by the Department of Veterans Affairs (VA) for prostate cancer, but to date he does not receive any benefits for service connection. His current claim has been administratively denied. He was honorably discharged in 1970 and reenlisted. He was AWOL for 6 days and was issued an undesirable discharge in 1975 that is preventing receipt of veterans' benefits. He has appealed and is awaiting a hearing. He suffered from post-traumatic stress disorder (PTSD) at the time and still suffers to this day. 3. The applicant provides: * Consent for Release of Personal Records by Executive Agencies, dated 1 May 2015 * 3 pages of email from his Congressional representative's office * medical record progress note, dated 21 April 2015 * letter from VA Hospital, dated 30 April 2015 CONSIDERATION OF EVIDENCE: 1. Based on the applicant's claim that he suffers from PTSD, his application is being considered de novo under the 2014 Secretary of Defense's guidance to Military Boards for Correction of Military Records/Naval Records (BCM/NRs). 2. The applicant enlisted in the Regular Army on 19 November 1969. He held military occupational specialty 63F (Recovery Specialist). He was advanced to the rank/grade of private two (PV2)/E-2 effective 19 March 1970, to the rank/grade of private first class (PFC)/E-3 effective 1 June 1970, and to the rank/grade of specialist four (SP4)/E-4 effective 20 August 1970. 3. He was honorably discharged on 25 August 1970 for the purpose of immediate reenlistment. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for this period shows he completed 9 months and 7 days of active service. He was authorized or awarded the National Defense Service Medal, Marksman Marksmanship Qualification Badge with Rifle Bar, and Expert Marksmanship Qualification Badge with Hand Grenade Bar. 4. He reenlisted on 26 August 1970. 5. He served in Vietnam from 8 July 1971 to on or about 20 March 1972. While in Vietnam, he was assigned to the 536th Engineer Detachment (Port Construction). 6. Following his service in Vietnam, he was reassigned to Fort Hood, TX. While at Fort Hood, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on: * 20 June 1972, for being absent without leave (AWOL) – he was reduced to the rank/grade of PFC/E-3 * 16 October 1973, for being AWOL * 25 March 1974, for being absent from special duty on six different occasions and for being 2 hours late from special duty on one occasion – he was reduced to the rank/grade of PV2/E-2 effective 11 April 1974 7. On 18 July 1974, the applicant departed his unit at Fort Hood in an AWOL status. 8. On 5 June 1975, the applicant returned to military control and was reassigned to the U.S. Army Personnel Control Facility at Fort Leonard Wood, MO. 9. On 10 June 1975, court-martial charges were preferred against the applicant under the UCMJ for one specification of being AWOL for the period 18 July 1974 to 5 June 1975. 10. On 10 June 1975, the applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge UOTHC, and the procedures and rights available to him. 11. Following consultation with legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In his request for discharge: a. He acknowledged that he understood: * he was making the request of his own free will and had not been subjected to any coercion whatsoever by any person * he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a dishonorable discharge * he could be discharged UOTHC and furnished an Undesirable Discharge Certificate * he could be deprived of many or all Army benefits * he could be ineligible for many or all benefits administered by the Veterans Administration * he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he could expect to encounter substantial prejudice in civilian life because of an undesirable discharge b. He elected to submit a statement in his own behalf. In his statement, dated 10 June 1975, he alleged problems with his commander and his first sergeant as the reasons behind his AWOL charges. He states his commander and first sergeant continually tried to bust him and make him confess that he had used drugs. He stated he has never used drugs in any form and has never been busted for drugs by civilian or military authorities. He could no longer stand the harassment. He also alleged domestic problems as the reasons behind his request for discharge. 12. On 16 June 1975, the separation authority approved his request for discharge in lieu of trial by court-martial. The separation authority directed issuance of an undesirable discharge and his reduction to the lowest enlisted grade of private/E-1 if serving in a higher grade. 13. On 18 July 1975, the applicant was discharged for the good of the service under the provisions of Army Regulation 635-200, chapter 10. His service was characterized as UOTHC. He completed 4 years, 8 months, and 7 days of creditable active service and accrued 328 days of lost time. 14. Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 shows the entry "None." 15. On 9 August 1983, he petitioned the Army Discharge Review Board (ADRB) for an upgrade of his character of service. In support of his application, he stated PTSD had impaired his ability to serve in the military. On 7 September 1984, the ADRB denied his request. 16. On 21 December 1998, he applied to the ABCMR for a discharge upgrade. On 29 April 1999, the ABCMR denied his request. 17. He requested reconsideration by the ABCMR on two occasions, 26 September 2013 and 14 February 2014, respectively, but his requests were returned without action in accordance with the policy in effect at the time because he exceeded the 1-year time limit for reconsideration requests. 18. He contacted his Congressional representative and his representative wrote to the Army Review Boards Agency on 1 May 2015, indicating the applicant wished to have his earlier requests reconsidered. His representative mentioned the applicant suffered from PTSD. 19. On 11 December 2015, the Army Review Boards Agency Case Management Division requested the applicant provide medical documentation that supported his claim of PTSD. He did not respond. 20. On 18 May 2017, the Army Review Boards Agency Clinical Psychologist provided an advisory opinion wherein she stated: a. A VA Compensation and Pension Examination, dated 29 December 2016, indicated the applicant had diagnoses of PTSD and alcohol use disorder. b. Based on a thorough review of available medical records, there was evidence the applicant met the criteria for PTSD during his military service. Despite the lack of military medical records indicating a behavioral health diagnosis during his time in service, PTSD symptoms have negatively impacted his mood and functioning, resulting in use of alcohol and substances to self-medicate, past suicidal ideation, outpatient and inpatient psychiatric care, and use of psychiatric medications. Given that PTSD was not recognized as a diagnosis during the applicant's time in service, it is unlikely that he or anyone else recognized and attributed his periods of AWOL and failure to report to PTSD. c. The applicant's misconduct appears to be largely related to his experiences at war and the witnessing of traumatic events. In summary, given the applicant's impairment and need for continued supportive services, it is likely that his PTSD mitigated the misconduct that led to his adverse separation from the Army. 21. On 22 May 2017, a copy of the advisory opinion was forwarded to the applicant for review and comment. The applicant did not respond. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10, in effect at the time, provided that a member who had committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after the charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge UOTHC was normally considered appropriate. b. Paragraph 3-7a states 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. c. Paragraph  3-7b 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. d. Paragraph 3-7c states a discharge UOTHC is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial. When a Soldier is to be discharged UOTHC, the separation authority will direct an immediate reduction to the lowest enlisted grade. 2. On 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and 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 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. 3. 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? 4. Although 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 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 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 available evidence shows the applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. Discharges under this chapter are voluntary. Based upon a review of the evidence of record, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 2. 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. 3. The available evidence shows the VA diagnosed him with PTSD, apparently caused by his combat experiences in Vietnam. After evaluating all available documentation, the Army Review Boards Agency Clinical Psychiatrist opined the applicant had undiagnosed PTSD while serving on active duty and there was likely a nexus between the applicant's PTSD and the misconduct (his periods of AWOL) that led to his separation from the Army. 4. Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible recharacterization of their overall service. 5. A decision to grant relief by upgrading the character of his service to general under honorable conditions would also warrant restoration of his rank/grade to PV2/E-2 with an effective date of 11 April 1974 since his reduction to private/E-1 was directly tied to his discharge UOTHC. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017682 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150017682 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2