SAMR-RB 19 October 2017 MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for AR20160003097 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 1O October 2017, 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 relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by reissuing the applicant a DD Form 214 showing his characterization of service as general, under honorable conditions. I direct no further correction be made to the record of the individual concerned. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 19 February 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 Correction 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: 21 September 2017 DOCKET NUMBER: AR20160003691 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: 21 September 2017 DOCKET NUMBER: AR20160003691 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: 21 September 2017 DOCKET NUMBER: AR20160003691 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, an upgrade of his under other than honorable conditions discharge. He also requests a personal appearance before the Board. 2. The applicant states, in effect, he does not agree with the characterization of his discharge. He was a conscientious objector during the Vietnam War. 3. The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 12 November 1969, and a letter from Daily Planet, dated 30 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 enlisted in the Regular Army on 20 March 1968. He was discharged on 3 January 1969, after 9 months and 14 days of net service, for the purpose of immediate reenlistment. He reenlisted in the Regular Army on 4 January 1969. 3. The applicant accepted nonjudicial punishment (NJP) on 6 January 1969, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for disobeying a lawful order from a commissioned officer on 5 January 1969, while assigned to Company C, 2nd Battalion, 54th Infantry Regiment, in the Federal Republic of Germany. 4. Before a special court-martial in the Federal Republic of Germany, the applicant was convicted of: * being absent without leave (AWOL), from on or about 11 February 1969 through on or about 24 February 1969 * failing to go to duty, on or about 2 March 1969 * disobeying a lawful order form a senior noncommissioned officer, on or about 5 March 1969 * communicating a threat to put his first sergeant (1SG) in his grave, on or about 5 March 1969 * communicating a threat to kill a noncommissioned officer (staff sergeant), on or about 3 March 1969 He was sentenced to confinement at hard labor for 6 months, forfeiture of $73.00 pay per month for 6 months, and reduction to the lowest enlisted grade. His sentence was adjudged and approved on 18 March 1969. 5. The applicant accepted NJP on 3 July 1969, under the provisions of Article 15 of the UCMJ, for being disrespectful in deportment toward his 1SG, his superior noncommissioned officer, after being given a direct order, on 23 June 1969. 6. The applicant was notified of his immediate commander's intent to initiate separation action against him, in accordance with Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), by reason of unfitness – frequent incidents of a discreditable nature with military authorities. His immediate commander advised him of his right to present his case to a board of officers, to submit statements on his behalf, to be represented by counsel, and to waive any of his rights in writing. 7. The applicant acknowledged receipt of the notification of separation action on 30 June 1969. He consulted with legal counsel and was advised of the basis for the contemplated separation action for unsuitability, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him. He acknowledged he understood he could expect to encounter substantial prejudice in civilian life in the event a less than honorable discharge was issued to him, and he could be ineligible for many or all benefits as a veteran under both Federal and State laws. He elected to waive consideration of his case before a board of officers, a personal appearance before a board of officers, and representation by counsel. He did not submit statements on his own behalf. 8. An Army Europe (AE) Form 3087 (Report of Psychiatric Evaluation), dated 30 July 1969, shows the applicant was evaluated by a licensed medical professional on 25 July 1969 prior to possible elimination proceedings. a. The applicant was assigned to his present unit for rehabilitation (Headquarters and Headquarters Company, 1st Battalion, 51st Infantry Regiment) in May 1969 from the Correction Holding Detachment, Baden-Wuertemberg Confinement Facility, after serving 2 months of a 6 month sentence. b. The medical professional determined he was in a listless, passive manner. He spoke very sparingly, limiting his conversation to asked questions. He was alert, oriented and showed no signs of organic brain disease or psychosis. There was no disorder of mood and affect was appropriate. Memory was intact and intellectual functioning appeared to be normal. c. The applicant was found to be totally apathetic toward the Army and expressed no motivation to complete his tour of duty. His concept of the Army is that of a "white" institution and another means of enslaving the "black" man. His only desire is to go back to the United States and perpetuate the "cause" of the black people through militant revolution. His attitude renders him unsuitable for further military duty. d. The evaluation determined the applicant had no psychiatric disease and the recommendation was that he be administratively separated from the Army under the provisions of Army Regulation 635-212. e. An enclosure, from another medical professional, dated 6 August 1969, stated the applicant was given a psychiatric evaluation and separation medical examination and that he meets medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. 9. The applicant's commander recommended, on 6 August 1969, that he be eliminated from the service under the provisions of Army Regulation 635-212, paragraph 6A (1), by reason of unfitness - frequent incidents of a discreditable nature with civil or military authorities. As reasons for the action, his commander cited his repeated commission of petty offenses and professed racial beliefs that allowed no loyalty to the United States and no desire to be connected with the armed forces in any way. a. His commander further noted he was assigned to his unit as a rehabilitative transfer after confinement. He noted his one conviction by a special court-martial, numerous negative counselling, and his two Article 15s. b. His commander recommended a discharge for unfitness and noted that elimination for unsuitability was not considered appropriate. The applicant's performance was characterized by behavior rendering him repeatedly subject to punitive action and by an avowed hatred of the U.S. His behavior was not due to an incapacity to become a satisfactory soldier within the meaning of unsuitability, and there appeared to be no grounds for other disposition of his case. 10. The applicant's battalion and brigade commanders recommended approval of his separation under the provisions of Army Regulation 635-212, by reason of unfitness, on 10 August and 17 September 1969, respectively. 11. The separation authority approved his discharge under the provisions of Army Regulation 635-212, by reason of unfitness, and directed that he be furnished an Undesirable Discharge Certificate. 12. The applicant was discharged on 12 November 1969. His DD Form 214 shows: * he was discharged under the provisions of Army Regulation 635-212 * he was issued Separation Program Number (SPN) 264 (Unsuitability, character and behavioral disorders) * he had periods of lost time from 11 February 1969 through 23 February 1969 (AWOL) and 18 May 1969 [sic - March] through 28 May 1969 (confinement) * his service was characterized as under other than honorable other conditions 13. There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations. 14. The applicant provides a letter from Daily Planet, Richmond, Virginia, dated 30 December 2015. The author of this letter notes the applicant has been receiving behavioral health services at the organization since August 2011. He has been treated for schizoaffective disorder - depressive type and other medical problems. In addition, he has a history of multiple hospitalizations for psychotic behavior. He has been compliant with appointments and taking his psychotropic medications. 15. In connection with the processing of this case, an advisory opinion was obtained on 19 May 2017 from the Army Review Boards Agency (ARBA) Clinical Psychologist, who opined: a. Documentation reviewed included the applicant's ABCMR application and evidence submitted and a limited review of Veteran's Administration (VA) records through the Joint Legacy Viewer (JLV). The electronic military medical record was not reviewed as it was not in use during the applicant's time in service. b. A pre-separation medical exam on 17 July 1969 cleared him for separation under Army Regulation 635-212. The examiner wrote that the applicant had a period psychiatric observation, but wrote, "No disease found, not in line of duty, not due to own misconduct." The exam forms also showed no reports by the applicant of psychiatric symptoms at that time. The applicant is now contending that he learned he had an other than honorable discharge when he applied for supplemental social security income (no date given). c. The applicant said he did not agree with the discharge because he was a conscientious objector to the Vietnam War. His records from the time showed that he did begin to object military service on political grounds after returning from leave to the US to his unit in Germany. He objected to wearing the uniform and asserted the Army was an organization for whites. Although not a popular view at the time, these kinds of radical views were part of the political culture during the time of the Vietnam War. The applicant's claim of conscientious objection did not appear in the available records. Rather, the basis that was obvious in the records was a sense that the Army was in service of the continuation of policies that harmed nonwhite Americans. d. In a psychiatric write up on 30 July 1969 of an exam conducted on 25 July 1965, found "no disease." The examiner concluded as follows: "The EM is totally apathetic toward the Army and expressed no motivation to complete his tour of duty. His concept of the Army is that of a 'white' institution and another means of enslaving the "black" man. His only desire is to go back to the United States and perpetuate the "cause" of black people through militant revolution. His attitude renders him unsuitable for further military duty. Recommend that he be administratively separated from the Army." The recommendation was "Separation UP AR 635-212," which is what occurred. The psychiatrist also concluded he met "the retention medical standards prescribed in Chapter 3, Army Regulation 40-501." e. Since leaving the service, he has had psychiatric problems, a letter of 20 December 2015 from a civilian heath care provider, stated that the applicant has a history of multiple hospitalizations for psychotic behavior. He had been receiving treatment at the clinic since 2011, and had a diagnosis of Schizoaffective Disorder Depressive Type. It was impossible to tell from the records when the onset of the applicant's mental illness began, but it was obvious from notes that it was well before 2011. One would ordinarily expect a man to be at peak risk for the disorder in his early to mid-20s; however, it is possible for the disease not to declare itself until a person is in his mid-30s. The applicant's case is also complicated by the fact that many psychotic patients express religious and political views that differ from those favored by the mainstream. Many sane person's shared the applicant's politics in the mid-60s and early 70s, viewing the Vietnam War as a criminal war, criminally conducted by whites on Asians, or as an Imperial or colonialist war. Further the applicant is not relating his selective conscientious objection (a view compatible with his apparent view that a person may fight in justice wars, but has a duty to not fight in unjust wars) to his mental illness. Respect for the applicant as a human being would seem to require taking his claims about what he was doing (for example conscientious objection, resisting racism) seriously until he raises the question the connection between his mental health and political views in the late 60s especially as he did have psychiatric examinations. Further, the current evidence is insufficient to show he was showing prodromal signs of a serious mental illness in the schizophrenic spectrum at the time of his active duty service, though it would be unsurprising if these were prodromal signs of impending illness. f. The applicant's medical records do not at the time of his discharge reasonably support him having had a boardable medical condition for that period; however, he did meet mental-health standards in accordance with Army Regulation 40-501. g. The available case material did not support the existence of a mitigating mental health condition at the time of his misconduct. Although it is possible that the applicant was standing by considered political beliefs, the abruptness of them, his escalating unreliability, his irritability, and apparent suspiciousness may well have signaled the arrival of the initial phase of what would become a psychotic illness. In light of that genuine possibility of emerging psychotic illness, as well as the political climate of the 60s, it does seem the character of his discharge was quite harsh, even though there is insufficient evidence to mitigate the misconduct. h. In conclusion, a review of available documentation did discover some evidence of a mental health considerations that may bear on the character of the discharge in this case. A mitigating nexus between the applicant's misconduct and his mental health was not discovered; however, his subsequent mental health history is consistent with the possibility that mental illness, rather than just political conviction, may have led to his misconduct in this case. 16. A copy of the advisory opinion was forwarded to the applicant on 24 May 2017, for information and to allow him the opportunity to submit comments or a rebuttal. However, the applicant did not respond. REFERENCES: 1. Located in Richmond, Virginia, Daily Planet is a community healthcare center providing accessible, comprehensive, and integrated quality health services, including primary health, behavioral health, and dental health, to anyone regardless of their housing, financial or insurance status. 2. 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. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is what the Army did was correct. It is not an investigative agency. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation 635-212, in effect at the time, provided the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability. a. Action was to be taken to separate an individual for unfitness when, in the commander's opinion, it is clearly established that: despite attempts to rehabilitate or develop him/her as a satisfactory soldier further effort is unlikely to succeed; or rehabilitation is impracticable or he/she is not amendable to rehabilitation measures; or an unfitting medical condition is not the direct or substantial contributing cause of his unfitness. An individual separated by this reason will normally be furnished an undesirable discharge certificate. b. Action was to be taken to separate an individual for unsuitability when, in the commander's opinion, it is clearly established that: it is unlikely that he/she will develop sufficiently to participate in further military training and/or become a satisfactory soldier, and he/she meets retention medical standards. An individual separated by this reason will be furnished an honorable or general discharge certificate as warranted by his/her military record. c. Paragraph 6a provided that an individual was subject to separation for unfitness when one or more of the following conditions existed: (1) Frequent incident of a discreditable nature with civil or military authorities. (2) Sexual perversion including but not limited to: lewd and lascivious acts; indecent exposure; indecent acts with, or assault upon, a child or other indecent acts or offenses. (3) Drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana. (4) An established pattern of shirking. (5) An established pattern showing dishonorable failure to pay just debts. (6) An established pattern showing dishonorable failure to contribute adequate support to dependents or failure to comply with orders, decrees, or judgements of a civil court concerning support of dependents. d. Paragraph 6b provided that an individual was subject to separation for unsuitability when one or more of the following conditions existed: (1) Inaptitude. (2) Character and behavior disorders. (3) Apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively. (4) Alcoholism. (5) Enuresis. (6) Homosexuality (Class III - evidences homosexual tendencies, desires, or interest, but is without overt homosexual acts). 4. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, provided the criteria governing the issuance of honorable, general, and undesirable discharge certificates. a. Paragraph 1-9d provided that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. 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 clearly inappropriate. b. Paragraph 1-9e provided that a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 5. Army Regulation 635-5 (Personnel Separations – Separation Documents), Appendix A (SPN and Authority Governing Separations), provided for SPNs and their corresponding reason for separation/discharge. The SPN (later renamed Separation Program Designator (SPD) codes) are three-character alphabetic combinations which identify reasons for and types of separation from active duty. a. The SPN of "264" was the correct code for Soldiers separating under the provisions of Army Regulation 635-212 by reason of unsuitability - character and behavior disorder. b. The SPN of "28B" was the correct code for Soldiers separating under the provisions of Army Regulation 635-212 by reason of unfitness - frequent involvement in incidents of a discreditable nature with civil or military authorities. 6. 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." 7. 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. 8. 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. 9. 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. 10. The acting Under Secretary of Defense for Personnel and Readiness provided clarifying guidance on 25 August 2017, which expanded the 2014 Secretary of Defense memorandum, that directed the BCM/NRs and DRBs to give liberal consideration to veterans looking to upgrade their less-than-honorable discharges by expanding review of discharges involving diagnosed, undiagnosed, or misdiagnosed mental health conditions, including PTSD; traumatic brain injury; or who reported sexual assault or sexual harassment. DISCUSSION: 1. The applicant's request for an upgrade of under other than honorable conditions discharge and personal appearance before the Board, was carefully considered. 2. The applicant's record of service included several instance of nonjudicial punishment and a conviction by a special court-martial for being AWOL and communicating several threats of bodily harm or death to others. 3. The applicant was discharged under the provisions of Army Regulation 635-212, by reason of unsuitability - character and behavior disorders (SPN 264) and his service was characterized as under other than honorable conditions. 4. However, his separation packet contained a psychiatric evaluation that indicated no psychiatric disease was found, and his chain of command recommended and the separation authority directed that he be separated by reason of unfitness - frequent involvement in incidents of a discreditable nature with civil or military authorities. In accordance with applicable regulations in effect at the time, this reason corresponded to an SPD of 28B. Therefore, an administrative error occurred in the processing of his DD Form 214. This is the only error, as the authority, character of service, and reenlistment code were each properly annotated in accordance with applicable regulations. 5. The applicant's record is void of evidence that confirms he was diagnosed with any behavioral health conditions while in military service. However, after his discharge, he was diagnosed and hospitalized with behavioral health conditions by civilian mental health professionals, albeit some years later. 6. The applicant provides a letter from his civilian health care provider that confirms he is being treated for multiple medical problems, to include schizoaffective disorder - depressive type, with a history of multiple hospitalizations for psychotic behavior. 7. The ARBA psychologist concluded a review of the available documentation and discovered some evidence of a mental health consideration(s) that may bear on the character of the discharge in this case. A mitigating nexus between the applicant's misconduct and his mental health was not discovered; however, his subsequent mental health history was found to be consistent with the possibility that mental illness, rather than just political conviction, may have led to his misconduct in this case. 8. The Department of Defense now has a thorough understanding of PTSD and other behavioral health conditions and their potential to serve as a causative factor in a Soldier's misconduct when the condition is not diagnosed, and treated in a timely fashion. Consequently, Soldiers who suffered from PTSD and other mental health conditions, who were separated solely for misconduct, warrant careful consideration for the possible re-characterization of their overall service. 9. The ARBA psychologist opined that the applicant's mental illness may have led to his misconduct; however, his record does contains several infractions including communicating a threat to commit bodily harm or death to others. 10. The applicant's request for a personal appearance hearing was 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 sufficient to render a fair and equitable decision at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003691 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003691 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2