BOARD DATE: 21 November 2017 DOCKET NUMBER: AR20160001718 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 November 2017 DOCKET NUMBER: AR20160001718 BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was 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 for the period ending 1 November 1971 to show the characterization of service as honorable. 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 any relief in excess of that described above. ____________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 November 2017 DOCKET NUMBER: AR20160001718 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 to under honorable conditions (general) in accordance with the Supplemental Guidance for Considering Discharge Upgrade Requests by Veterans Claiming post-traumatic stress disorder (PTSD). 2. The applicant states his unrecognized PTSD was the basis for his discharge. 3. He provides a self-authored letter, dated 17 December 2015. 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 completed an honorable period of active service in the Regular Army (RA) from 16 February 1966 to 19 March 1967 and reenlisted on 20 March 1967. Subsequently, he served in Vietnam as a wheeled vehicle mechanic from 17 December 1967 to 16 June 1969. He was awarded the Purple Heart for wounds sustained on 24 July 1968. 3. A U.S. Field Medial Card, dated 18 April 1969, shows that while in Vietnam the applicant sustained a laceration to his forehead and minor cuts while he was changing a truck tire. 4. On 17 September 1969, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 20 August to 14 September 1969. 5. On 22 December 1969, in accordance with his pleas, the applicant was convicted by a special court-martial of three specifications of being AWOL between 22 July 1969 and 8 November 1969. 6. On 1 April 1970, the applicant was convicted by a special court-martial of being AWOL from 19 January to 4 March 1970 and breaking restriction. 7. On 14 November 1970, the applicant was convicted by a special court-martial of two specifications of being AWOL from 9 July to 19 August 1970 and from 1 to 5 October 1970, and for failing to go to his appointed place of duty at the time prescribed, disobeying a lawful command, and disobeying a lawful order on 10 October 1970. 8. The facts and circumstances surrounding the applicant’s discharge are not contained in the available records. However, the applicant's DD Form 214 (Armed Forces Report of Transfer or Discharge) shows that on 1 November 1971, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service, with a character of service of under other than honorable conditions and the issuance of an Undesirable Discharge Certificate. He completed 4 years and 3 months of creditable active service with 533 days of lost time due to being AWOL and in confinement. 9. The available records do not show the applicant applied to the Army Discharge Review Board for an upgrade of his discharge. 10. The applicant provides a statement wherein he recounts his combat experiences in Vietnam, which caused him to be depressed and suspicious of others, and his struggle with alcohol addiction. These experiences included: * having another Soldier point an M16 rifle at him * being under mortar attack at least once a month * having his friend killed in a helicopter accident * being placed on alert for extended periods * the constant fear of not knowing if he would live or die 11. His record is void of a separation physical and he did not provide medical evidence of a PTSD diagnosis. 12. An Army Review Boards Agency psychiatrist provided a medical advisory opinion on 19 June 2017. This advisory official concluded: a. The available medical records document that the applicant suffered a large laceration to his forehead after being hit by a tire rim during a tire explosion. According to the Occupational Safety and Health Administration (OSHA) Information Booklet 3086 dated 1998, an exploding tire can be very dangerous as evidenced by the following statement: “The principal hazards involve pressurized air which, once released, can either hurl an employee across the shop if the employee is in close proximity to the rim wheel and within the trajectory, or can propel the rim wheel across the workplace and into a worker.” In the applicant’s case, he suffered from persistent headaches and insomnia after the head injury. His neurological exam was also abnormal. b. Of note, all of the applicant’s misconduct and AWOL occurred after he incurred his head injury in April 1969. His first incident of AWOL was on 22 July 1969. His record prior to the head injury also indicates he received an honorable discharge and he was awarded the Purple Heart, Army Commendation Medal, and Bronze Star Medal. c. The applicant was hit in the forehead by the tire rim of the exploding tire. The frontal lobe lies immediately beneath the forehead. Damage to the frontal lobe can lead to problems with poor judgment and reasoning. Frontal lobe damage can also cause impulsivity, disinhibition, and reduced self-monitoring. In the applicant’s case, his multiple incidents of AWOL can be explained by the impulsivity, disinhibition, and poor judgement such an injury can cause. d. Based on the information available, the applicant has a mitigating medical condition for the misconduct leading to his discharge from the Army. As frontal lobe damage is associated with poor judgment, impulsivity and disinhibition, there is likely a nexus between his head injury and the multiple incidents of being AWOL which led to his discharge from the Army. 13. On 22 November 2016, the applicant was provided a copy of the advisory opinion. He did not respond. REFERENCES: 1. 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, 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 that 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. 2. 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 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. 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 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. 4. On 25 August 2017 the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; traumatic brain injury (TBI); sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part to those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 5. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of the above regulation provides that, a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial. A discharge under other than honorable conditions is normally considered appropriate. b. 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. c. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. DISCUSSION: 1. The applicant requests an upgrade of his discharge in accordance with the Supplemental Guidance for Considering Discharge Upgrade Requests by Veterans Claiming PTSD. 2. The available evidence shows he was discharged on 1 November 1971 in lieu of a court-martial. Given his numerous periods of AWOL, it is presumed that he was charged with the commission of offense(s) punishable under the UCMJ with a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. He is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process. 3. The Secretary of Defense memorandum dated September 2014 directs the BCMRs 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. Clarifying guidance issued in August 2017 provides that boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on mental health conditions, including PTSD; traumatic brain injury (TBI); sexual assault; or sexual harassment. 4. The applicant failed to provide documented evidence of a PTSD diagnosis but his award of the Purple Heart is confirmation that he was subjected to the ordeals of war. 5. The advising psychiatrist determined there was likely a nexus between his head injury sustained on 18 April 1969 and the multiple incidents of being AWOL that led to his discharge from the Army. The advising psychiatrist noted the applicant’s periods of AWOL occurred after his head injury, and frontal lobe damage is associated with poor judgment, impulsivity, and disinhibition. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001718 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001718 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2