SAMR-RB 12 February 2018 MEMORANDUM FOR Office of the Surgeon General, ATIN: DASG-HSZ-PAD, 7700 Arlington Blvd., Suite 3SW328B, Falls Church, VA 22042 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for, AR20160001748 1. Reference the attached Army Board for Correction of Military Records of Proceedings, dated 16 January 2018, in which the Board members unanimously recommended denial of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant partial relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that the applicant's case be referred to the Office of the Surgeon General for evaluation into Physical Disability Evaluation System (PDES) to determine if he should have been discharged or retired by reason of physical disability. In the event that a formal Physical Evaluation Board (PEB) becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent completion of the formal PEB. 3. Should a determination be made that the applicant should have been separated under the PDES, this memorandum will serve as the authority to void his administrative separation and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowance and/or retired pay, less any entitlements already received. 4. Request necessary administrative action be taken to effect the correction of records as indicated no later than 12 June 2018. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Corrf3ction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: _ Encl Deputy Assistant Secretary of the Army (Review Boards) BOARD DATE: 16 January 2018 DOCKET NUMBER: AR20160001748 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 16 January 2018 DOCKET NUMBER: AR20160001748 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ______________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: 16 January 2018 DOCKET NUMBER: AR20160001748 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, a. a change of his narrative reason for separation to show he was medically discharged due to combat related post-traumatic stress disorder (PTSD) and b. award of the Bronze Star Medal (BSM) with "V" Device. 2. He states that per Congressional report (Public Law 95-202, GI Improvement Act of 1997), his discharge upgrade was issued on 6 May 1991 by the Army Discharge Review Board (ADRB) AD-81-16082. Department of Veterans Affairs (VA) File Number 24 668 210 shows he should have been medically discharged and that his discharge was not due to wrongdoing or misconduct. 3. He further states that while serving in the Republic of Vietnam with Company A, 2nd Battalion, 60th Infantry, 9th Infantry Division, he was wounded in action during the Tet Offensive. He sustained a gunshot wound to his right shoulder and was pinned down for several hours during a fire fight. He was medically evacuated to Japan. Upon returning to his unit, he found out that the men in the field had recommended him for the BSM with "V" Device for valor. He contends the award recommendation was ignored because he was "doing [his] job and deserved no special merit." The cover-up was racially motivated because his performance did not sit well with the headquarters' expectation of a young black Soldier. He concludes by stating "any due evidence relevant is held by the Army… [his] military records were lost during [his] return from Japan." 4. The applicant provided a separate letter dated 9 January 2017 for the Board’s consideration. He was made aware of the existence of an award recommendation by men who were in the field with him in Vietnam. It was other Soldiers who witnessed his actions and the events warranting an award. He reasonably believes he was deprived of an award that was recommended based on his race, color, class and status as a black combat Soldier. He conducted himself as a Soldier under (hostile) fire even when wounded. He protected his fellow Soldiers. He states he was punished because the existence of an award recommendation was hidden, suppressed, and unmentioned by company staff. At age 67, the denial of the award recommendation was/is unacceptable. 5. He provides: * discharge packet * two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge and Certificate of Release or Discharge from Active Duty) * Legacies of Vietnam: Comparative Adjustment of Veterans and Their Peers study, dated 9 March 1981, submitted to the Committee on Veterans' Affairs, U.S. House of Representatives * Army Discharge Review Board (ADRB) Case Number AD-81-16082 * Compensation and Pension Report, dated 20 July 2013 * Department of Veterans Affairs (VA) rating, dated 23 October 2013 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. Title 10, U.S. Code, section 1130, provides the legal authority for consideration of proposals for decorations and award not previously submitted in a timely fashion [normally 2 years from event]. Upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award of or upgrading of a decoration. Based upon such review, the Secretary shall determine the merits of approving the award. 3. The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to: Commander, U.S. Army Human Resources Command, ATTN: AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY 40122. The unit must be clearly identified, along with the period of assignment and the recommended award. A narrative (separate statement) of the actions or period for which recognition is being requested must accompany the DA Form 638. Requests should be supported by sworn affidavits, eyewitness statements, certificates, and related documents. Supporting evidence is best provided by commanders, leaders, and fellow Soldiers who had personal knowledge of the facts relative to the request. The burden and costs for researching and assembling supporting documentation rest with the applicant. 4. The applicant enlisted in the Regular Army on 31 May 1967. His DA Form 20 (Enlisted Qualification Record) shows: * he held military occupational specialty 11B (Infantryman) * highest grade completed was the 8th grade * the highest rank he held was private first class * he served in the Republic of Vietnam from 9 December 1967 to 23 December 1968 * he was awarded the Purple Heart for a gunshot wound incurred on 3 March 1968 5. The applicant was assigned as a rifleman with the following 9th Infantry Division units: * Company A, 2nd Battalion, 60th Infantry from 12 December 1967 to 16 September 1968 * Headquarters and Headquarters Company, 3rd Battalion, 9th Infantry Division from 17 September to 31 December 1968 6. He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on 17 December 1967 for wearing unauthorized headgear, uniform being in disarray, and disrespecting a noncommissioned officer (NCO). 7. Special Court-Martial Order 22, issued by Headquarters, 2nd Battalion, 60th Infantry, dated 31 August 1968, shows he was convicted of disobeying a lawful order to keep out of the village of AP Dong in the Republic of Vietnam. The conviction and punishments were set aside, the charges dismissed, and all rights restored by the convening authority on 21 September 1968. 8. On 27 November 1968, the applicant underwent a command directed behavioral health evaluation by a military psychiatrist who diagnosed the applicant with a sociopathic personality disorder, antisocial type. There was no evidence of functional or organic mental illness. The applicant did not have a mental condition qualifying him for disposition through medical channels. The psychiatrist stated it was doubtful the applicant was amenable to counseling, psychotherapy, or other rehabilitative measures, or that he would effectively perform military duty in any status or situation. The applicant was capable of distinguishing right from wrong and adhering to the right. Psychiatric clearance was given for whatever administrative action was deemed appropriate by his command. 9. On 25 November 1968, his commander notified him of his intent to eliminate him from service under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) by reason of unsuitability. 10. On 29 November 1968, the applicant consulted with counsel, who advised him of the basis for his contemplated separation and its effects, the rights available to him, and the effect of a waiver of his rights. 11. After consulting with counsel, he elected not to submit statements in his own behalf and he indicated he desired to seek legal counsel concerning the separation action. He acknowledged he could expect to encounter substantial prejudice in civilian life, if a general discharge under honorable conditions was issued to him. 12. On 24 December 1968, his commander initiated the applicant's discharge for unsuitability. The commander stated a discharge was recommended because of the defective attitude displayed by the applicant. The applicant's attitudes were strengthened by exposure to combat duty as a rifleman in two reconnaissance platoons that saw considerable action in the 8 months that he was assigned to Company A, 2nd Battalion, 60th Infantry. Actions, to include rehabilitative reassignment and counselling, were utilized to remedy this situation and failed to produce the desired results. The applicant has a history of difficulties with persons in positons of authority. He quit school after completing the eighth grade because of his difficulties with school officials. He has consistently caused breaches of peace in the unit. His attempts to "poison the minds of newly assigned personnel have been relatively unsuccessful to date." He was picked up at Reliable Academy recently because of his agitating practice. His agitation has caused some very tense moments in his unit. 13. On 24 December 1968, the separation authority directed his discharge under the provisions of Army Regulation 635-212 for unsuitability due to defective attitudes and directed the applicant be issued a General Discharge Certificate. On 7 January 1969 he was discharged accordingly. 14. His 7 January 1969 DD Form 214 shows he was awarded or authorized: * National Defense Service Medal * Vietnam Service Medal * Vietnam Campaign Medal with Device (1960) * Combat Infantryman Badge * Purple Heart 15. On 14 July 1980, the applicant applied to the ADRB for an upgrade of his discharge. On 6 May 1982, the Board determined that his discharge was proper but not equitable. He was granted him relief in the form of an honorable discharge and issued a new DD Form 214. His reissued DD Form 214 shows his character of service as honorable with no change to the narrative reason for separation. Two awards were added: two overseas service bars and the Expert Marksmanship Qualification Badge with Rifle Bar. 16. Review of the Awards and Decorations Computer-Assisted Retrieval System (ADCARS), an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the U.S. Army Human Resources Command, failed to reveal BSM with "V" Device orders pertaining to the applicant. 17. The applicant submitted: a. Compensation and Pension Exam Report, dated 20 July 2013, showing his was diagnosed with PTSD and depression not otherwise specified. b. VA rating decision, dated 23 October 2013, showing the VA awarded him a rating of 50 percent service-connected disability for PTSD and depression not otherwise specified. c. Legacies of Vietnam: Comparative Adjustment of Veterans and Their Peers Study, dated 9 March 1981, which examined a random sampling of 1,440 men whose lives were touched directly and indirectly by the Vietnam War. This report was prepared by the VA pursuant to Public Law 95-202 under the GI Improvement Act of 1977. 18. The Board forwarded his application and records to the Army Review Boards Agency clinical psychologist for review. The clinical psychologist rendered an advisory opinion on 17 November 2016. a. The clinical psychologist was asked to determine if the applicant's military separation was due to PTSD or any other behavioral health condition and if the applicant should have been medically separated. b. The applicant contends that his early separation from the Army was due to mental defect as the result of exposure to heavy combat. Military records, dated 24 December 1968, indicated he displayed a defective attitude. He received an Article 15 for being in the wrong uniform and disrespecting an NCO. In November 1968 action was initiated to separate him for apathy after it was determined that rehabilitative actions, to include reassignment and counseling, failed to improve his difficulties with persons in position of authority and breaches of peace and agitation within his unit. His conduct and efficiency became increasingly unsatisfactory and his command indicated his defective attitude was of sufficient severity to engender the animosity of all persons in positions of authority. It was also indicated that his defective attitude was strengthened by exposure to combat operations as a rifleman in two reconnaissance platoons that saw considerable action over the course of 8 months. He was involved in numerous fire fights in which he was pinned down, ambushed with gunfire, witnessed the death of friends, and shot in the shoulder. A psychiatric evaluation dated 27 November 1968 indicated the applicant had a diagnosis of sociopathic personality, antisocial type and was cleared for administrative discharge. c. A VA letter, dated 23 October 2013, indicated service connection for PTSD with secondary depression not otherwise specified was granted and he was assigned a disability rating of 50 percent effective 28 January 2011. A rating of 50 percent was determined based on combat trauma exposure, a history of suicidal ideation, disturbances of motivation and mood, flattened affect, occupational and social impairment, anxiety, chronic sleep impairment, depression, and suspiciousness. d. The VA Compensation and Pension Examination, dated 20 July 2013, indicates the applicant has been incarcerated since January 1971 for the crime of first degree murder. He is serving a life sentence. The applicant reported several stressors associated with difficulty trying to cope with Vietnam to include a history of unemployment, homelessness, and family discord prior to incarceration. While incarcerated he was hospitalized from 1972-1973 secondary to behavioral problems including the assault of a guard. He was also hospitalized from 1974 -1977 for a stress related disorder. He has participated in Vietnam Veteran's Groups and individual therapy from 1980 to 2002, to include cognitive behavioral therapy for PTSD, anxiety, and depressive symptoms. The applicant had a history of suicidal thinking and attempts in the 1980s to include taking pills, hanging himself, and slitting his wrists and arms. e. Based on a thorough review of available medical records, there is evidence that the applicant met criteria for PTSD during his military service. PTSD symptoms have negatively impact his mood and functioning, to include his current life sentence for murder. Given that PTSD was not recognized as a diagnosis during his time in service, it is unlikely that he or anyone else recognized and attributed his misconduct, apathy, and decrease in efficiency to PTSD. Supporting medical documentation regarding diagnosis of PTSD was provided by the VA. Given his impairment and need for continued supportive services, it is more likely than not that his diagnosis of PTSD stemmed from his combat exposure in service and can be considered for a medical discharge. 17. The applicant was provided with a copy of this advisory opinion to give him an opportunity to submit a rebuttal and/or provide additional evidence. He expressed agreement with the content of the advisory opinion; however, he made an additional request to add his civilian education of 15 years to his DD Form 214. He completed the requirements and received a General Education Diploma. He has completed correspondence courses to include a 2-year program in legal assistant and paralegal studies. His (post-service) academic record is filed within the State of Wisconsin. 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 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. 2. 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. 3. 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. 4. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a.  Soldiers are referred to the Physical Disability Evaluation System when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in an medical evaluation board (MEB), when a Soldier receives a permanent medical profile, P3 or P4, or is referred by a Military Occupational Specialty (MOS) Medical Retention Board, or when they are command-referred for a fitness-for-duty medical examination, or they are referred by the appropriate personnel command. b.  The PDES assessment process involves two distinct stages: The MEB and the physical evaluation board (PEB). The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service. c.  The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 5. Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). It provides that performance of duty despite impairment would be considered presumptive evidence of physical fitness. It also provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating. 6. Army Regulation 600-8-22 (Military Awards) shows the BSM and BSM with "V" Device are awarded in time of war for heroism and for meritorious achievement or service. As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required. 7. Army Regulation 635-5 (Personnel Separations – Separation Documents), in effect at the time, stated to enter the highest civilian education level attained in the "Remarks" section. This information will be taken from the DA Form 20. 8. Army Regulation 15-185 (ABCMR) states the ABCMR will decide cases on the evidence of record. It is not an investigative body. Further paragraph 2-9 provides that the Board will begin its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant received a mental health evaluation prior to his discharge. He was diagnosed by a military psychiatrist with a sociopathic personality disorder, antisocial type. The military psychiatrist noted the applicant did not have a mental health condition qualifying him for disposition through medical channels (i.e., PDES). As such, the applicant was discharged in accordance with Army Regulation 635-212 due to unsuitability. 2. The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation. All requirements of law and regulation were met, and his rights were fully protected throughout the separation process. 3. After reviewing the applicant's records and evidence, the ARBA clinical psychologist opined that given his impairment and need for continued supportive services, it is more likely than not that his diagnosis of PTSD stemmed from his combat exposure in-service and could be considered for a medical discharge. By regulation, to be considered for a medical discharge, the applicant's records would be reviewed under the PDES process. Based on the evidence of record, the Board must determine if a preponderance of the evidence indicates that such a review is warranted. 4. The applicant's contention that he was recommended for award of the BSM with "V" Device is not corroborated by the available records. A recommendation to deny award of the BSM with "V" Device will in no way affect his right to pursue his claim through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130. 5. The applicant requests to have civilian education courses completed subsequent to his discharge added to his DD Form 214. Regulatory provisions allow for the highest civilian education completed prior to entry onto active duty or completed on active duty should be entered on the DD Form 214. There is no regulatory basis for amending a DD Form 214 to reflect education attained after the period covered by the DD Form 214. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001748 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001748 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2