BOARD DATE: 18 May 2017 DOCKET NUMBER: AR20160001664 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: 18 May 2017 DOCKET NUMBER: AR20160001664 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was 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: * voiding the applicant's DD Form 214 for the period ending 21 December 1972 * reissuing a new DD Form 214 for the period ending 21 December 1972 showing his characterization of service as "General, Under Honorable Conditions" and restoring his rank and pay grade to private/E-2 with a date of rank of 27 February 1972 * issuing the applicant a General Discharge Certificate 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 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: 18 May 2017 DOCKET NUMBER: AR20160001664 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, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his characterization of service as honorable. 2. The applicant states he suffered from post-traumatic stress disorder (PTSD) after returning from the Republic of Vietnam (RVN). He still suffers from PTSD. He had just returned from the RVN and was having difficulty readjusting to the military and civilian population. He attempted to over dose on 6 May 1971 because nothing seemed to be going right for him. He was suffering from severe depression, anxiety and PTSD. He was not treated for any of these conditions while in the military nor was treatment ever offered. 3. The applicant provides: * DD Form 214 ending on 21 December 1972 * Standard Form 600 (Chronological Record of Medical Care) dated 3 to 20 December 1971 * Standard Form 513 (Consultation Sheet) dated 6 April [to year identified] * Psychotherapy Intake Note, dated 30 November 2015 (4 pages) 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 13 April 1971 the applicant was inducted into the Army of the United States. He completed training and was awarded military occupational specialty 11B (Light Weapons Infantryman). 3. On or about 20 August 1971, the applicant departed Fort Polk, Louisiana for duty in the RVN. 4. On 18 September 1971 the applicant was assigned to the 2nd Battalion, 5th Cavalry Regiment, 1st Brigade, 1st Cavalry Division. a. On 17 January 1972 the applicant accepted nonjudicial punishment (NJP) under the provision of Article 15 of the Uniform Code of Military Justice (UCMJ) for behaving with disrespect toward a commissioned officer and for failing to go to his appointed place of duty at the time prescribed. b. On 27 February 1972 he was reduced to private, pay grade E-2. c. On or about 17 March 1972 the applicant departed the RVN. 5. On 26 April 1972, the applicant was assigned to the 2nd Battalion, 16th Infantry Regiment, located at Fort Riley, Kansas. 6. On or about 22 May 1972, the applicant went absent without leave (AWOL) and remained absent until on or about 22 November 1972 (about 184 days). 7. On 4 December 1972, court-martial charges were preferred against the applicant under the UCMJ for violation of Article 86 – AWOL. 8. On 6 December 1972 the applicant consulted with legal counsel and 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 (UOTHC) characterization of service, and of the procedures and rights that were available to him. 9. After consulting with counsel and being advised of his rights and options, the applicant submitted a written request for 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. He acknowledged he had been advised of and understood his rights under the UCMJ, and that he could receive an Undesirable Discharge Certificate which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received an undesirable discharge. 10. In his request for discharge, the applicant indicated that he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 11. On 16 December 1972 the separation authority approved the applicant’s request for discharge and directed he be issued a DD Form 258A (Undesirable Discharge Certificate). He also directed the applicant’s reduction to the lowest enlisted grade, if serving in a higher grade. On 21 December 1972 the applicant was discharged accordingly. He had completed 1 year, 2 months and 9 days of creditable active duty service. He accrued 184 days of time lost due to AWOL. His DD Form 214 confirms his service in the RVN. 12. On 15 April 1979, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge. The ADRB determined that his discharge was proper and equitable and denied his request. 13. The Psychotherapy Intake Note, dated 30 November 2015, as provided by the applicant, indicates he was diagnosed with PTSD due to his combat exposure in the RVN. The applicant was exposed to significant combat trauma. He was involved in frequent firefights and killed four people while in the RVN. The applicant currently has intrusive memories (flashbacks) and nightmares related to this trauma about 3-4 times a week. 14. In the processing of this case, a staff medical advisory opinion was obtained. The Army Review Boards Agency psychiatrist concluded that the applicant suffered from undiagnosed PTSD while on active duty. Because PTSD can be associated with avoidant behaviors, there is a likely nexus between the applicant’s PTSD and the AWOL offense which resulted in his discharge from the Army. The applicant’s PTSD is considered mitigating for the offenses which led to his discharge from the Army. 15. On 29 November 2016, a copy of the advisory opinion was sent to the applicant for his information and opportunity to respond. A response was not received. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-14 stated that when a member was to be discharged under other than honorable conditions, the convening authority would direct an immediate reduction to the lowest enlisted grade. b. Chapter 10, as in effect at the time, provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses charged; the type of discharge normally given under the provisions of this chapter; the loss of VA benefits; and the possibility of prejudice in civilian life because of the characterization of such a discharge. An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the service. c. Paragraph 3-7a provided that an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be 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 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 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 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 contends that his military records should be corrected by upgrading his UOTHC to honorable because he had difficulty readjusting to military and civilian life after returning from the RVN and suffered from undiagnosed PTSD. 2. 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 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. 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. The applicant's record is void of any serious previous misconduct during his period of service. The misconduct of going AWOL appears to have been an isolated event that was the result of an uncharacteristic lapse in judgment. 6. A medical advisory opinion provided by a psychiatrist opinioned that the PTSD condition of avoidant behavior (AWOL) was a likely causative factor in his misconduct that led to his discharge. 7. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the member's service generally meets the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. 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) AR20160001664 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001664 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2