BOARD DATE: 11 May 2017 DOCKET NUMBER: AR20160001801 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: 11 May 2017 DOCKET NUMBER: AR20160001801 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is 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 showing his general discharge under the provisions of the Special Discharge Review Program was affirmed. 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 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: 11 May 2017 DOCKET NUMBER: AR20160001801 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: The applicant defers to counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests an upgrade of the applicant's undesirable discharge to honorable. 2. Counsel states: a. The applicant suffers from trauma-induced post-traumatic stress disorder (PTSD) related to his combat experiences during the Vietnam War. He received an other than honorable discharge. His discharge should be upgraded to honorable in light of the September 2014 guidance issued by the Department of Defense (DOD). b. When the applicant was discharged in 1970, PTSD was not a recognized condition. The guidance from DOD makes clear that Vietnam veterans who have service-related PTSD should have their records reviewed liberally for upgrading. 3. Counsel provides: * undated 16-page legal brief * exhibit A – DOD Discharge Review Program (Special) correspondence, dated 28 June 1977, with reissued DD Form 214 * exhibit B – Army Discharge Review Board (ADRB) documentation, dated 24 October 1978 * exhibit C – letter from the applicant, dated 13 November 2001 * exhibit D – applicant's Standard Form 600 (Chronological Record of Medical Care), dated 1 October 1970 * exhibit E – applicant's discharge proceedings * exhibit F – applicant's Department of Veterans Affairs (VA) patient discharge summary, dated 11 January 1993 * exhibit G – applicant's psychiatric evaluation, dated 2 November 1970 * exhibit H – letter to the applicant from the Social Security Administration, dated 18 February 2015 * exhibit I – DOD memorandum, dated 3 September 2014 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 February 1969 for a period of 2 years. He arrived in Panama on 22 July 1969. 3. On 31 December 1969, he was convicted by a special court-martial of being absent without leave (AWOL) from 15 November 1969 to 19 November 1969 and from 21 November 1969 to 25 November 1969, unlawful entry, and breaking restriction. He was sentenced to confinement at hard labor for 3 months, reduction to E-1, and forfeiture of $50.00 pay per month for 3 months. On 21 January 1970, the convening authority approved the sentence. 4. On 30 March 1970, nonjudicial punishment was imposed against him for failing to obey a lawful order. 5. On 23 May 1970, nonjudicial punishment was imposed against him for failing to go at the time prescribed to his appointed palace of duty. 6. He departed Panama on 13 July 1970. He arrived in Vietnam on 22 August 1970. 7. Counsel provided a health record from an unidentified medical treatment facility, dated 1 October 1970, showing the applicant complained he could not tolerate field duty any longer. He was diagnosed with situational anxiety reaction in a passive aggressive, emotionally immature, and unstable personality with a low frustration threshold. The medical treatment provider noted the applicant was most probably a candidate for separation under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability). 8. On 2 November 1970, the applicant underwent a psychiatric evaluation wherein the psychiatrist found no psychiatric disease. He was found mentally responsible and psychiatrically cleared for administrative separation under the provisions of Army Regulation 635-212 as deemed appropriate by his command. 9. On 2 November 1970, the applicant was notified of his pending separation for unfitness under the provisions of Army Regulation 635-212. His commander cited his previous charges and disciplinary actions as the basis for the recommended discharge. His commander also stated he was under charges for possession of marijuana and missing movement at the present time. 10. On 2 November 1970 after consulting with counsel, the applicant waived his rights and acknowledged he understood he might expect to encounter substantial prejudice in civilian life in the event an undesirable discharge were issued to him. He elected not to make a statement in his own behalf. 11. On 9 December 1970, the separation authority approved the recommendation for separation for unfitness and directed the issuance of an Undesirable Discharge Certificate. 12. He departed Vietnam en route to the United States on or about 10 December 1970. 13. He was discharged under other than honorable conditions (UOTHC) on 13 December 1970 under the provisions of Army Regulation 635-212 and assigned separation program number 28B (unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities). He completed 1 year, 6 months, and 8 days of total active service with 108 days of lost time. 14. There is no evidence showing he was diagnosed with PTSD prior to his discharge. 15. In 1977, the ADRB upgraded his discharge to general under honorable conditions under the provisions of the Special Discharge Review Program (SDRP). 16. On 24 October 1978 after having re-reviewed the applicant's case as required by Public Law 95-126, the ADRB voted not to affirm the recharacterization of his discharge. 17. He provided a VA patient discharge summary, dated 11 January 1993, showing he was diagnosed with chronic PTSD (combat related) and marijuana abuse. 18. Counsel provided an undated 16-page legal brief stating: a. The applicant is a Vietnam veteran who has tried valiantly to be an upstanding citizen, despite the painful encumbrance of his discharge UOTHC and his struggles with PTSD. He petitions the Board for a discharge upgrade to honorable or to general under honorable conditions in the alternative. Recently, the Secretary of Defense mandated that the boards for correction of military records give liberal consideration to applicants with PTSD. Under this new standard, the Board should revise the applicant's discharge status to honorable or general under honorable conditions. b. The applicant's characterization of service upon discharge is unjust because he would most likely receive a medical discharge due to his PTSD diagnosis if he were discharged today. c. His characterization of service upon discharge is unjust because he sought medical treatment for what we now know was PTSD while serving in Vietnam and requested to be transferred stateside to help ease his anxiety. The unit refused to assist him in returning home to treat his medical condition and instead administratively discharged him without providing him with the proper medical treatment. d. Counsel described the applicant's military service and life since Vietnam. The applicant witnessed and experienced traumatic events in Vietnam. He turned to illegal drug use to help dull the intense experiences he witnessed while serving in Vietnam. Since his discharge, he has been aware that something was wrong and he needed medical assistance. e. The applicant's request is entitled to liberal consideration because he meets the criteria outlined in the PTSD discharge upgrade memorandum. 19. An advisory opinion was rendered by the Army Review Boards Agency psychiatrist, dated 22 November 2016, wherein she stated: a. VA medical documentation, dated 11 January 1993, shows the applicant was diagnosed with chronic PTSD secondary to his experiences in Vietnam and marijuana abuse. The discharge summary states the applicant has experienced the following symptoms since leaving the service: intrusive thoughts, nightmares, flashbacks, insomnia, anxiety, hypervigilance, increased startle reflex, emotional numbing, social withdrawal, and periods of depression. According to this note, the applicant experienced numerous traumatic events in Vietnam, to include exposure to killing and injury of American Soldiers, enemy Soldiers, and civilians. b. A review of the applicant's service medical records indicates he had problems with anxiety while serving in Vietnam. A behavioral health medical progress note, dated 1 October 1970, diagnoses him with situational anxiety reaction in a passive aggressive, emotionally immature, and unstable personality. In this note, the behavioral health provider documents "he can't take the jungle any longer" and "claims he cannot tolerate field duty any longer." A psychiatric evaluation, dated 2 November 1970, states the applicant is very fearful of being forced to return to the field and would refuse at any cost. There was no evidence of psychosis, psychoneurosis, or depression. The applicant was found to be mentally responsible and was cleared for any administrative action deemed appropriate by his command. In his Standard Form 93 (Report of Medical History), dated 2 November 1970, the applicant endorses nervous trouble of any sort. This is in contrast to his entry Standard Form 89 (Report of Medical History), dated 11 February 1969, in which he denies having any psychiatric problems, to include nervous trouble of any sort. c. He was pending court-martial charges for wrongful possession of marijuana and missing movement at the time of his discharge from the Army. d. A review of his military records indicates no symptoms of PTSD per se. The lack of documentation of PTSD symptoms in his military records does not necessarily indicate he did not have PTSD while serving in the military. In the era of his military service, PTSD was not a recognized diagnosis. Consequently, the diagnosis often has to be inferred from the available documentation and from behavioral indicators. Such is the situation in this case. While serving in Vietnam, the applicant was diagnosed with situational anxiety by a behavioral health provider. The notes document the applicant stating he could not take the jungle any longer. His separation psychiatric evaluation documents that the applicant was very fearful of being forced to return to the field. In his separation report of medical history, the applicant endorses nervous trouble of any sort. In retrospect, these notes clearly indicate the applicant was likely suffering from the symptoms of PTSD while on serving active duty. e. It is her medical opinion the applicant suffered from undiagnosed PTSD while serving on active duty. Because PTSD can be associated with avoidant behaviors, there is a likely nexus between the applicant's PTSD and the offense of missing movement. Additionally, because PTSD is associated with self-medicating behaviors, there is a likely nexus between the applicant's PTSD and the offense of wrongful marijuana possession. The applicant's PTSD is considered mitigating for these offenses. 20. A copy of this advisory opinion was provided to the applicant for comment and/or rebuttal. He did not respond. REFERENCES: 1. Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability. Paragraph  6a(1) provided that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. An undesirable discharge was normally considered appropriate. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. 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. 3. The Department of the Army SDRP was based on a memorandum from Secretary of Defense Brown and is often referred to as the "Carter Program." It mandated the upgrade of individual cases in which the applicant met one of several specified criteria and when the separation was not based on a specified compelling reason to the contrary. The ADRB had no discretion in such cases other than to decide whether recharacterization to fully honorable as opposed to a general discharge was warranted in a particular case. Absentees who returned to military control under the program were eligible for consideration after they were processed for separation. Individuals could have their discharges upgraded if they met any one of the following criteria: wounded in action, received a military decoration other than a service medal, successfully completed an assignment in Southeast Asia, completed alternate service, received an honorable discharge from a previous tour of military service, or completed alternate service or were excused there from in accordance with Presidential Proclamation 4313 of 16 September 1974. Compelling reasons to the contrary to deny discharge upgrade were: desertion/AWOL in or from the combat area, discharge based on a violent act of misconduct, discharge based on cowardice or misbehavior before the enemy, or discharge based on an act or misconduct that would be subject to criminal prosecution under civil law. 4. Public Law 95-126 provided for a "Relook Program." All discharges upgraded from UOTHC under the SDRP or Presidential Proclamation programs (and their extensions) required a second review and affirmation (or not) under uniform standards. 5. The Diagnostic and Statistical Manual of Mental Disorders (DSM), chapter 7, addresses trauma and stress or related disorders. The DSM is published by the American Psychiatric Association (APA) and provides standard criteria and common language for classification of mental disorders. In 1980, the APA added PTSD to the third edition of its DSM nosologic classification scheme. Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice. From a 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." 6. 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. 7. 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 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 Soldiers' 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 a 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. 8. On 3 September 2014, in view of the foregoing information, 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 applicants' service. 9. 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? 10. Although 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 records 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. BCM/NRs 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. BCM/NRs 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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The type of discharge directed and the reasons were appropriate considering all the facts of the case at the time. 2. His undesirable discharge was upgraded to general under honorable conditions as a result of the SDRP review in 1977. In 1978, his general discharge was not affirmed by the ADRB in accordance with Public Law 95-126. 3. Counsel provided VA documentation showing the applicant was diagnosed with chronic PTSD in 1993. 4. PTSD was largely unrecognized by the medical community and DOD at the time of his discharge. 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. 5. Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible recharacterization of their overall service. 6. The medical advisory official states the lack of documentation of PTSD symptoms in his military records does not necessarily indicate he did not have PTSD while serving in the military. The available medical documentation shows the applicant was diagnosed with situational anxiety by a behavioral health provider while serving in Vietnam, his separation psychiatric evaluation documented that he was very fearful of being forced to return to the field, and he endorsed nervous trouble of any sort in his separation report of medical history. In retrospect, these notes clearly indicate the applicant was likely suffering from the symptoms of PTSD while serving on active duty. The VA documentation shows he was diagnosed with combat-related PTSD. It is the medical advisory official's opinion that the applicant suffered from undiagnosed PTSD while serving on active duty. She contends that because PTSD can be associated with avoidant behaviors, there is a likely nexus between the applicant's PTSD and the offenses which resulted in his discharge from the Army. The advisory official found that PTSD was considered mitigating for the offenses which led to his discharge UOTHC from the Army. 7. His overall service did not rise to a fully honorable character of service. Since the evidence suggests his PTSD may have been a contributing factor in the misconduct that led to his discharge, the Board may choose to affirm his general 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) AR20160001801 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001801 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2