BOARD DATE: 15 June 2017 DOCKET NUMBER: AR20160001110 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: 15 June 2017 DOCKET NUMBER: AR20160001110 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 reissuing the applicant a DD Form 214 for the period ending 4 December 1970 to show: * his rank/grade in items 5a (Grade, Rate, or Rank) and 5b (Pay Grade) as "PFC" and "E-3" * his date of rank in item 6 (Date of Rank) as "12 Jan 70" * his character of service in item 13a (Character of Service) as "Under Honorable Conditions (General)" ___________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: 15 June 2017 DOCKET NUMBER: AR20160001110 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 that his under other than honorable conditions discharge be upgraded to an under honorable conditions (general) discharge. 2. The applicant states, on an attached VA Form 21-4138 (Statement in Support of Claim), that: * he joined the Army instead of being drafted * he was injured in Vietnam and has been issued a Purple Heart along with other entitled awards and decorations; he had honorable service * he signed up for the buddy system and soon after basic training he was sent to the infantry and then to Vietnam; however, was separated from his buddy * while in Vietnam, he suffered a severe leg injury on 30 January 1970 that eventually led to him having plastic veins in his leg * after his discharge from the hospital, he was sent to Fort Riley, KS and was immediately placed in the 1st Cavalry Division * he had to perform strenuous activities and was unable to perform those duties with his injury, due to not receiving any physical therapy to build his strength * he went absent without leave (AWOL) because he was so upset after his injury; he was physically and mentally unable to handle his environment * he went AWOL on two prior occasions, before he went to Vietnam; first after he and a friend were arrested for driving under the influence and a second time, before he shipped to Vietnam * he didn't realize the effect his AWOL would have on the rest of his life * he did not know that this would disqualify him from seeking medical benefits or compensation from the Department of Veterans Affairs (VA) * he now suffers from a variety of illnesses to include a heart attack due to exposure to Agent Orange while in Vietnam * he now suffers from anxiety and nervousness, which he feels is post-traumatic stress disorder (PTSD) * he is under hospice care in his home and uses oxygen for COPD [chronic obstructive pulmonary disease] 3. The applicant provides: * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 4 December 1970 * a six-page physician medical document titled "North Carolina Department of Health and Human Services - Disability Determination Services," dated 22 November 2002 * a document titled "Information Paper for Military Awards," dated 1 July 2009 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 17 July 1969. After completing his initial entry training, he was awarded military occupational specialty 11B (Light Weapons Infantryman). 3. The applicant served in the Republic of Vietnam from on or about 10 January through on or about 23 February 1970, a period of 1 month and 26 days. It appears he was medically evacuated from the Republic of Vietnam. 4. A DD Form 458 (Charge Sheet), dated 5 November 1970, shows court-martial charges were preferred against the applicant from his period of AWOL service, from on or about 6 July 1970 through on or about 2 November 1970, a period of 119 days. 5. The applicant acknowledged the charges preferred against him on 5 November 1970, declined the opportunity to consult with counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, in lieu of trial by court-martial. 6. In doing so, he acknowledged the charges preferred against him under the UCMJ authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged: * he had not been subjected to coercion with respect to his request for discharge * he had been advised of the implications that were attached to it * he could be discharged under other than honorable conditions and he could be ineligible for many or all benefits administered by the Veterans Administration (VA) * he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits as a veteran under both Federal and State laws * he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge * he elected not to submit a statement on his own behalf 7. His immediate commander recommended approval of his request on 16 November 1970, and recommended he be issued an undesirable discharge. 8. His intermediate commander recommended approval of his request on 19 November 1970, and recommended he be issued an undesirable discharge. He further stated: After careful consideration of available data, including two Article 15s, six civilian offenses, current offense of one specification of AWOL for a total of 119 days, after which EM was apprehended by civilian authorities, and the fact the EM has spent the majority of his term of service since July 1970 in either AWOL or confinement status, it appears that rehabilitation is highly unlikely and that discharge in lieu of court-martial would be to the best interests of the government and the accused. 9. The approval authority approved the applicant's request for discharge on 24 November 1970, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial. He directed the applicant’s reduction to the lowest enlisted grade and directed the issuance of DD Form 258A (Undesirable Discharge Certificate). 10. The applicant was discharged on 4 December 1970. The DD Form 214 he was issued shows: * he was created with the completion of 11 months and 19 days of total active service * he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial * his service was characterized as under other than honorable conditions * he had lost time from 10 November through 13 November 1969; 14 December 1969 through 7 January 1970; and 6 July through 2 November 1970 11. The applicant's medical records are not available for review with this case. 12. The applicant provides the following documentation: a. A six-page physician medical document titled "North Carolina Department of Health and Human Services - Disability Determination Services," dated 22 November 2002. This document states he was evaluated by a Dr. A.R. on 19 November 2002 for a comprehensive clinical psychological evaluation as part of a disability determination action. He was diagnosed with PTSD, COPD, bronchitis, and other medical conditions. His PTSD symptoms were established as occurring as a result of his military service in the Republic of Vietnam. b. A document titled "Information Paper for Military Awards," dated 1 July 2009, which shows he was being provided his entitled awards and decorations from his military service, to include the Purple Heart. 13. In connection with the processing of this case, an advisory opinion was obtained on 20 December 2016 from the Army Review Boards Agency (ARBA) Clinical Psychiatrist, who opined: a. The applicant enlisted in the Army on 17 July 1969 in the MOS 11B. While in the Army, he deployed to Vietnam from 10 January 1970 through 23 February 1970. On 4 December 1970, he was separated with an under other than honorable conditions discharge in accordance with chapter 10, Army Regulation 635-200, for the good of the service. His misconduct consisted of AWOL from 6 July 1970 through 2 November 1970. He is now applying to the ABCMR, contending he developed PTSD while on active duty that led to his misconduct. b. Documentation reviewed included the applicant's ABCMR application, his personal statement, a Disability Determination Report from the North Carolina Department of Health and Human Services and the applicant's military personnel records. Military medical records were not available for review. The electronic military medical record was not reviewed as it was not in use during the applicant's time in service. c. Review of the applicant's personal statement indicates that he was shot in the leg shortly after arriving in Vietnam. The applicant received a Purple Heart for this injury. After hospitalization, he was sent to Ft Riley, KS where he reports he was placed on full duty with no profile for his leg injury. He states he was unable to perform the strenuous activities required of the job and he went AWOL because he felt "there was no other way out." d. Review of the North Carolina Department of Health and Human Services Disability Determination Services report, dated 22 November 2002, which was dictated, diagnoses the applicant with PTSD based on the applicant's report of the following symptoms: recurrent and intrusive recollections of the war, nightmares about the war, feelings of reliving the experience of being shot, poor sleep, anger outbursts, difficulty with concentration, anxiety, depression and hypervigilance. The applicant has been treated with medication for his anxiety and depressive symptoms. e. Review of the applicant's 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 Army Regulation 40-501 (Standards of Medical Fitness), chapter 3 and following the provisions set forth in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant's era of service. f. The lack of documentation of PTSD symptoms in the applicant's military records does not necessarily indicate he did not have in-service PTSD. In the era of the applicant's military service, PTSD symptoms were frequently not recognized. Given the applicant's history of being shot in the leg in Vietnam and his subsequent problems with anxiety, depression, nightmares and intrusive recollections, it is more likely than not that the applicant developed PTSD while in the military. g. 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. Because PTSD can be associated with avoidant behaviors, there is likely a nexus between the applicant's PTSD and the misconduct (being AWOL) which led to his under other than honorable conditions discharge from the Army. 14. A copy of the advisory opinion was forwarded to the applicant on 27 December 2016, for information and to allow him the opportunity to submit comments or a rebuttal. He did not respond. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. b. Chapter 10 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, a discharge under other than honorable conditions is normally considered appropriate. 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 use, or other illness. 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. 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 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 request that his under other than honorable conditions discharge be upgraded to an under honorable conditions (general) discharge, was carefully considered. 2. The applicant contends his duty performance in the Republic of Vietnam was excellent and honorable; however, it resulted in his combat-related PTSD, which went undiagnosed and therefore untreated. 3. Shortly after his return from the Republic of Vietnam, he went AWOL from on or about 6 July 1970 to on or about 2 November 1970. 4. The applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200. The evidence shows he voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met, and his rights were fully protected throughout the separation process. 5. His records are void of evidence that confirms he was diagnosed with PTSD while in military service. However, after his discharge, he was diagnosed with PTSD by a civilian mental health professional, who determined his condition was service-connected as a result of his experiences, particularly being wounded, during Vietnam, albeit some 32 years later. 6. The Department of Defense now has a 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. Consequently, Soldiers who suffered from PTSD, who were separated solely for misconduct subsequent to a traumatic event, warrant careful consideration for the possible re-characterization of their overall service. 7. Based on his experiences, he was diagnosed with PTSD by a competent mental health professional. The ARBA Clinical Psychologist opined that, based on the information available, it is reasonable to assume it is likely that his PTSD existed at the time of his service and was a causative factor in the misconduct that led to his 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) AR20160001110 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001110 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2