BOARD DATE: 1 December 2016 DOCKET NUMBER: AR20160003464 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: 1 December 2016 DOCKET NUMBER: AR20160003464 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 reissuing the 10 August 1971 DD Form 214 to show a character of service of general, under honorable conditions. 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 upgrade to a fully honorable discharge. ___________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: 1 December 2016 DOCKET NUMBER: AR20160003464 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 under other than honorable conditions (UOTHC) discharge to an honorable discharge or a general, under honorable conditions discharge. 2. The applicant states he is requesting an upgrade of his discharge based on a diagnosis of post-traumatic stress disorder (PTSD), which was undiagnosed at the time of his separation from military service. He requests a personal appearance before the Board. 3. The applicant provides copies of: * two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) * Centerstone medical records (post-service) * Department of Veterans Affairs (VA) claim documents * The Helicopter War – The War in Indochina, Newsweek, 15 March 1971 * chronology of events and list of helicopter units in Lam Son 719 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army (RA) on 21 October 1969 for a period of 3 years and he: * was awarded military occupational specialty (MOS) 36C (Lineman) * completed basic airborne training * was assigned overseas to Germany on 13 June 1970 * was promoted to private first class (PFC)/pay grade E-3 on 20 June 1970 2. A DD Form 214 shows he was honorably discharged on 21 June 1970 to reenlist in the RA. He had completed 8 months and 1 day of net active service this period. 3. The applicant enlisted in the RA on 22 June 1970 for a period of 3 years. 4. On 24 August 1970, he accepted nonjudicial punishment (NJP) for being absent without proper authority from his unit (U.S. Army Overseas Replacement Station, Fort Lewis, WA) from 9 August to 23 August 1970. He was reduced to private (E-2). 5. He was assigned overseas to Vietnam on 27 August 1970 and served in: * Duty MOS (DMOS) 36C (Lineman), Headquarters and Headquarters Company (HHC), 14th Combat Aviation Battalion (CAB), from 6 September through 11 November 1970 * DMOS 11B (Junior Security Guard), 14th Security Platoon, HHC, 14th CAB, from 12 November through 17 March 1971 * DMOS 36C (Lineman), 174th Assault Helicopter Company (AHC), 14th CAB, from 18 March through 6 May 1971 * DMOS 36C (Lineman), 14th Security Platoon, HHC, 14th CAB, from 7 May through 18 June 1971 6. He accepted NJP in Vietnam for: * discharging an M-16 rifle in the company area on 18 January 1971; he was reduced to private (E-1) * willfully disobeying a lawful command from his superior commissioned officer to report for guard duty on 9 February 1971 7. On 1 June 1971, court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ), Article 134, for wrongfully having in his possession a narcotic drug, heroin. 8. On 9 June 1971, the applicant consulted with legal counsel. He was informed of the charges against him for violating the UCMJ and that he was pending trial by court-martial. He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial. a. He voluntarily requested discharge for the good of the service in lieu of trial by court-martial. By submitting his request for discharge he acknowledged that he was guilty of the charge against him or of a lesser included offense(s) therein contained, which also authorized the imposition of an Undesirable Discharge Certificate (UDC). The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge. b. He was advised that he might be: * deprived of many or all Army benefits * ineligible for many or all benefits administered by the Veterans Administration * deprived of his rights and benefits as a veteran under both Federal and State laws c. He acknowledged he understood that, if his request for discharge was accepted, he might be discharged with a UDC. d. He was also advised that he could submit statements in his own behalf. He elected not to submit any statements in his own behalf. e. The applicant and his counsel placed their signatures on the document. 9. The chain of command recommended approval of the applicant's request for discharge with a UDC. On 12 June 1971, the acting company commander completed a DA Form 2823 (Witness Statement). It shows, in pertinent part, that the applicant was assigned to the 14th Security Platoon and he had a long history of unacceptable conduct and actions. At the applicant's request, he was transferred to 176th AHC and then to 174th AHC. However, both units sent him back to 14th Security Platoon because his conduct was such that neither unit could utilize him to any extent. 10. On 17 June 1971, the separation authority approved the applicant's request for discharge and directed he be issued a UDC. 11. The applicant's DD Form 214 shows he entered active duty this period on 22 June 1970 and was discharged on 10 August 1971 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial, with an UOTHC character of service. He had completed 1 year, 1 month, and 5 days of net active service during this period and he had 14 days of lost time. 12. A review of the applicant's military personnel records failed to reveal evidence that he applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 13. On 22 June 2006, the Army Board for Correction of Military Records (ABCMR) denied the applicant's request for upgrade of his discharge. He stated that clemency had been granted to other Soldiers and his request should be considered under the clemency program for drug abuse. 14. In support of his application the applicant provides the following documents: a. Centerstone Psychiatric Evaluation, dated 29 June 2016, that shows, in pertinent part, the following Diagnostic and Statistical Manual of Mental Disorders (DSM) diagnoses with start date 24 May 2016: * Axis I: * unspecified depressive disorder * unspecified anxiety disorder * other (or unknown) substance use disorder, mild * cannabis use disorder, mild * PTSD b. Several VA claim documents prepared by the applicant during the period 30 January 2015 and 20 January 2016. They show, in pertinent part, he: * served with the 14th CAB, Americal Division in Vietnam and worked at various jobs (maintenance, truck driver) * was assigned to 176th AHC in September 1970 and, as part of his initiation, he drank Crown Royal whiskey from the skull of a dead North Vietnamese Army soldier * was assigned to 174th AHC from March to May 1971 and – * served as a crewmember on missions providing air support, resupply, and delivery/recovery of troops * witnessed heavy casualties of Army of the Republic of Vietnam soldiers * helped load corpses onto helicopters during recovery missions * became addicted to heroin to cope with what he was experiencing * was assigned to 14th Security Platoon – * he fired a round above a civilian child's head * hollered at a commissioned officer c. The Helicopter War – The War in Indochina, Newsweek, 15 March 1971, describes the utilization of air cavalry in Vietnam and into Laos. d. A chronology of events, from 21 February to 25 March 1971, described by veterans of various units and a list of the helicopter units in Lam Son 719, Laos. 15. In the processing of this case, an advisory opinion was obtained from the Chief, Behavioral Health (BH) Division, Health Care Delivery, U.S. Army Medical Command G-3/5/7, Office of The Surgeon General (OTSG), Falls Church, VA. a. The medical advisor stated the ABCMR requested a determination as to whether the applicant was eligible for an upgrade of his discharge based on PTSD or any other BH condition. This advisory opinion is based solely on the information provided by the ABCMR. b. The advisory official noted the applicant indicated he participated in the helicopter campaign into Laos. According to him, "I stayed high to help me cope with what was going on in my head. I have carried all that around with me ever since that time, I still have dreams and nightmares." c. The advisory official stated: The only BH documentation included in the file is a community clinic intake evaluation, dated 29 June 2016, in which [the applicant] is described as "anxious, sad, down, and angry." Axis I diagnoses included Unspecified Depressive Disorder, and PTSD. He was also noted to smoke marijuana daily. It is plausible that [the applicant's] drug use and subsequent PTSD diagnosis are strong indicators that he was experiencing PTSD symptoms at the time of his separation and that these symptoms mitigated the conduct that led to his discharge. 16. On 30 September 2016, the applicant was provided a copy of the advisory opinion in order to allow him the opportunity (30 days) to submit comments or a rebuttal. A response was not received from the applicant. REFERENCES: 1. PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster. The 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." 2. 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. 3. 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. 4. 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 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 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. 5. In view of the foregoing, on 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards 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. 6. 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? 7. 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 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. 8. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 10 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, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration 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. b. Chapter 3, 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. Chapter 3, 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. 9. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-11 states that applicants do not have a right to a hearing before the ABCMR. The Director of the ABCMR or the chair of an ABCMR panel may grant a formal hearing whenever justice requires. DISCUSSION: 1. The applicant contends that his discharge should be upgraded based on a diagnosis of PTSD. 2. The applicant's request for a personal appearance hearing was also carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is considered sufficient to render a fair and equitable decision at this time. 3. Records show the applicant satisfactorily served on active duty from 21 October 1969 through 21 June 1970. During that period he completed training, was promoted to PFC (E-3), and he was honorably discharged to reenlist in the RA. 4. The evidence of record shows the applicant's record of indiscipline began after he reenlisted and was ordered to report (and reported 2 weeks late) to Fort Lewis for deployment to Vietnam. Then, while serving in Vietnam, he received NJP on two occasions for acts of indiscipline. In addition, his subsequent misconduct resulted in court-martial charges being preferred for wrongful possession of a narcotic drug, heroin. a. The applicant's company commander documented that the applicant had a long history of unacceptable conduct and actions during his tour of duty in Vietnam. He also confirmed that the applicant was returned to the 14th Security Platoon by two different AHCs because the units could not utilize him due to his misconduct. b. Records show he served as either a lineman or a junior security guard during his tour of duty in Vietnam. c. The applicant's military service records fail to show that he participated in missions into Laos and the applicant provides insufficient evidence to support his contention that he participated in such missions. 5. The applicant requested and accepted a UDC with a characterization of service of UOTHC. 6. The applicant's available military service records fail to show he experienced a specific traumatic event during the period of service under review. However, the evidence of record shows he experienced wartime events during the period of service under review. 7. 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. 8. 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. a. On 29 June 2016, a psychiatrist confirmed that the applicant has PTSD secondary to combat experiences in Vietnam. b. On 23 September 2016, the Chief, BH Division, OTSG, opined that the applicant's drug abuse and subsequent PTSD diagnosis are strong indicators that he was experiencing PTSD symptoms at the time of his separation and that the symptoms could mitigate the conduct which led to his separation from the Army. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003464 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003464 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2