BOARD DATE: 1 June 2017 DOCKET NUMBER: AR20160001101 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: 1 June 2017 DOCKET NUMBER: AR20160001101 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: * voiding the applicant’s 8 January 1974 DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * issuing a new DD Form 214 for the period ending 8 January 1974 to show * Character of Service: "General, Under Honorable Conditions" * Grade, Rate or Rank: "PV2" * Pay Grade: "E-2" * Date of Rank: "13 July 1973" * issuing him a General Discharge Certificate with his reinstated rank ______________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: 1 June 2017 DOCKET NUMBER: AR20160001101 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 character of service from under other than honorable conditions (UOTHC) to under honorable conditions (general). 2. He states he regrets the events that led to his discharge. He adds: a. The first time he went absent without leave (AWOL) was due to family issues. He had a newborn baby and he did not have any leave available, but felt he needed to be at home. Once he got everything taken care of, he turned himself in at Fort Knox, KY and accepted his punishment. He was court-martialed, reduced from specialist four (SP4)/E-4, and a forfeiture of $150.00 per month for 3 months. Shortly thereafter, he was reassigned to Fort Riley, KS. The unit never received the court-martial punishment and he continued to be paid as a SP4 and the forfeiture was never taken out of his pay even though he tried to explain the situation to the unit. Eventually the unit found the mistake and he was informed that he had to pay all the money back and would only receive $25.00 a month until his expiration term of service (ETS). As result of this action, he was unable to support his wife and baby. Therefore, he went AWOL again to find a job and support his family. b. He has been employed in the community for 30 years at Chrysler and he is now retired. While at Chrysler, he was elected Stilled Trade Union Steward, 1st shift, for 6 years. He was also the alternate committee member for skilled trades for 6 years. He adds he has not been in any trouble with the law. He states he currently has type II diabetes, neuropathy, and has four stents in his heart. Additionally, he is being treated for post-traumatic stress disorder (PTSD) and he is receiving medical treatment in the community. 3. He provides: * self-authored statement * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * Charter Township of Clinton Police Department letter with fingerprints, dated 10 December 2014 * U.S. Department of Justice, Federal Bureau of Investigation documents, dated 17 June 2015 * six supporting statements * Progress Notes, dated 29 July, 12 August, 9 September, 30 September, and 30 October 2015 * Department of Veterans Affairs (VA) Form 21-0781 (Statement in Support of Claim for Service Connection for PTSD), dated 8 February 2016 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 21 September 1970 the applicant enlisted in the Regular Army (RA). He was trained in and awarded military occupational specialty 05B (Radio Operator). 3. His DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam from 24 April to 25 August 1971. 4. On 4 April 1973, a special court-martial convicted him of being AWOL from on or about 28 November 1972 until on or about 12 March 1973. He was sentenced to hard labor without confinement for 1 month, a forfeiture of $150.00 pay per month for 3 months, and a reduction from SP4/E-4 to private (PV1)/E-1. 5. On 12 April 1973 his sentence was approved and ordered executed by the court-martial authority. 6. On 26 April 1973 he was awarded MOS 51A (Construction and Utilities Worker) and MOS 05B was withdrawn. 7. On 13 July 1973 he was promoted to PV2/E-2. 8. On 7 December 1973 charges were preferred against him for being AWOL from 5 September 1973 to 28 November 1973. 9. On 7 December 1973 he consulted with counsel and he voluntarily requested discharge under the provisions of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial. a. In his request for discharge, he indicated he had been advised of the implications attached to his request and understood that if his request was accepted, his service could be characterized as under other than honorable conditions and he could be furnished an undesirable discharge. b. He acknowledged he understood he might encounter substantial prejudice in civilian life and he might be ineligible for many or all State, Federal, and/or Army benefits if he received an undesirable discharge. He elected to submit a statement in his behalf. c. In his statement he said he believed he should be discharged from the Army for the good of the service because he felt he had done the best he could for 32 months. He explained he was an E-4, went AWOL due to financial problems, and was subsequently reduced to E-1. He stated he tried to get the forfeiture prorated, but was denied. He said he had $180.00 a month in bills and could not live on nothing. Therefore, it would be in the Army's best interest to let him out of the Army. 10. On 26 December 1973, the separation authority approved the applicant’s discharge under the provisions of AR 635-200, chapter 10 and directed the issuance of an undesirable discharge. He further directed that the applicant be reduced to the grade of PVT/E-1. 11. The applicant was discharged on 8 January 1974 under the provisions of chapter 10, AR 635-200, with service characterized as UOTHC. His DD Form 214 shows he completed 2 years, 9 months, and 10 days of net active service this period with 105 days of lost time from 28 November 1972 to 12 March 1973 and 84 days of lost time subsequent to his normal ETS from 5 September 1973 to 27 November 1973. It also shows his rank as private (PV1)/E-1 with an effective date of pay grade listed as 26 December 1973. 12. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 13. The applicant provides: a. Supporting statements that speak highly of the applicant's trustworthiness and dedication. Two of the statements submitted by fellow Vietnam veterans said the applicant served honorably in Vietnam, but experienced problems after returning home. The Mayor said he has known the applicant for over 35 years and as a retired lieutenant for the Macomb County Sheriff's Office, he is a very good judge of character. He maintains that although the applicant did not do the right thing during his military service, his loyalty to his family is a trait that many people fail at miserably. Several authors state the applicant has always been the type of person to lend a helping hand to family and friends. b. A letter and document from the Clinton Police Department and the Federal Bureau of Investigation confirm that there are no arrest incidents involving the applicant. 14. On 14 November 2016, the ABCMR obtained an advisory from a Clinical Psychiatrist, Army Review Boards Agency (ARBA). She reiterates the applicant's court-martial charges that led to his request for discharge under the provisions of AR 635-200 chapter 10 and his subsequent UOTHC discharge. She states: a. A review of the Psychiatric Evaluation performed by a neuropsychiatrist, dated 29 July 2015, indicates that the applicant has been diagnosed with PTSD due to his experiences in Vietnam and social anxiety disorder. The applicant’s PTSD symptoms are identified as follows: recurrent dreams, flashbacks, avoidance behaviors, irritability, anger, impaired sleep, impaired concentration, increased distress at reminders of the trauma and feelings of detachment from others. In his VA Statement in Support of Claim, the applicant identifies the following traumatic events occurring while he was in Vietnam: 1) While posted in a hilltop radio retransmission site, he was subjected to daily fire from the enemy as they attempted to destroy his communication site; 2) While he was on guard duty, he came under attack and the fuel point was blown up by the enemy; and 3) The unit cook died from a heroin overdose and "no one seemed to care." b. A review of his military records indicates that these records are void of documentation of PTSD symptoms. There is no indication in his military records that the applicant failed to meet military medical retention standards in accordance with AR 40-501 (Standards of Medical Fitness), chapter 3 and following the provisions set forth in AR 635-40 (Personnel Separation Physical Evaluation for Retention, Retirement, or Separation), in effect at the time. c. The lack of documentation of PTSD symptoms in the applicant’s military records does not necessarily indicate he did not have in-service PTSD. During the applicant’s military service, PTSD symptoms were frequently not recognized. In such cases, the presence of PTSD has to be inferred from behavioral indicators. Such is the case with this applicant. In his 27 October 1972, Enlisted Efficiency Report, the applicant received a very positive evaluation from his supervisor. In the evaluation the supervisor stated, "The service member [applicant] was a great asset… He was placed in charge of the radio section and performed excellently in this capacity. His ready willingness to accomplish the tasks assigned to him reflects definite potential for solid leadership capabilities." d. The applicant successfully completed his tour of duty in Vietnam only to go AWOL once he returned to the United States. This pattern of performing well followed by suddenly going AWOL is not uncommon in Soldiers suffering from PTSD. It reflects the avoidance behavior often seen in this condition. The fact that the applicant continues to be treated for PTSD indicates that the applicant’s PTSD continues to be ongoing. e. In conclusion, based on the information available at this time, there is sufficient evidence to conclude that the applicant had undiagnosed PTSD while on active duty. Since PTSD can be associated with avoidant behaviors, there is likely a nexus between his PTSD and the misconduct which led to his UOTHC discharge from the Army. 15. On 16 November 2016, the advisory opinion was forwarded to the applicant for his acknowledgement and/or response. No response was received. REFERENCES: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of the version in effect at the time provided that a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good of the service in lieu of a trial. The regulation required that there have been no element of coercion involved in the submission of such a request and the applicant was provided an opportunity to consult with counsel. The Soldier was required to sign the request indicating he understood that he could receive service characterized as UOTHC, the adverse nature of such a discharge, and the possible consequences thereof. The regulation required that the request be forwarded through channels to the general court-martial convening authority. An undesirable discharge would normally be furnished an individual who was discharged for the good of the service. b. 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. 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 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. 6. 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. 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 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 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 evidence of record shows the applicant enlisted in the RA on 21 September 1970 and performed duties as a radio operator. He served in Vietnam from 24 April to 25 August 1971. 2. At the time of his first AWOL offense from 28 November 1972 until 12 March 1973, which was after his Vietnam service, he had served over 2 years and 2 months with no noted discipline problems. Additionally, he had attained the rank/grade of SPC/E-4. He was court-martialed for this offense and part of his punishment included reduction to the lowest enlisted grade. 3. On 13 July 1973 he was advanced to pay grade E-2. 4. Court-martial charges were preferred against him on 7 December 1973, for being AWOL from 5 September 1973 to 28 November 1973. He voluntarily requested separation for the good of the service under the provisions of AR 635-200, chapter 10, to avoid a trial by court-martial. He accepted a UOTHC character of service and an undesirable discharge. He was reduced to PV1/E-1. 5. The regulations governing the Board's operation require that the discharge process be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption. In the absence of evidence to the contrary, the discharge process, the type of discharge, and the characterization of service directed at the time are presumed to have been appropriate. 6. 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. 7. On 29 July 2015, he was evaluated and diagnosed as having PTSD due to his service in Vietnam. Additionally, the advising psychiatrist states there is likely a nexus between his PTSD and the misconduct which led to his separation from the Army. The diagnosis of PTSD could be considered mitigating for his AWOL offense. 8. Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event or experiences warrant careful consideration for the possible recharacterization of their overall service. 9. As the applicant was administratively reduced to the lowest enlisted grade upon discharge, if the Board favorably considers his request for a discharge upgrade, it would be appropriate to reinstate his rank to private/pay grade E-2 with a date of rank of 13 July 1973. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001101 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001101 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2