BOARD DATE: 25 July 2017 DOCKET NUMBER: AR20160004697 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: 25 July 2017 DOCKET NUMBER: AR20160004697 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: a. voiding his DD Form 214 for the period 30 June 1967 through 18 December 1972 and b. reissuing a DD Form 214 for the period 28 April 1968 through 18 December 1972 to show his character of service as "Under Honorable Conditions (General)" with the following administrative corrections showing: * he entered this period of active duty on 28 April 1968 * he was credited with 3 years, 5 months, and 27 days of net active service during this period * he was credited with 1 year, 9 months, and 28 days of prior active service 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 correcting his DD Form 214 for the period ending 18 December 1972, to show the characterization of his service as "Honorable" and a personal appearance before the Board. ____________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: 25 July 2017 DOCKET NUMBER: AR20160004697 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests an upgrade of his discharge under other than honorable conditions. He also requests a personal appearance before the Board. 2. The applicant states he joined the Army and was sent to Vietnam when he was 18 years old. He volunteered to return to Vietnam when he was 21 years old. He feels he was suffering from post-traumatic stress disorder (PTSD) and was involved with drugs and alcohol when he was absent without leave (AWOL) at the time of his arrest and incarceration. He was having family issues when he was AWOL because his request for a compassionate reassignment was denied. He is a law-abiding citizen and has owned a business for the last 20 years. He has a 70-percent disability rating from the Department of Veterans Affairs (VA) due to health problems. He feels he has been punished long enough for the mistakes he made when he was 21 years old. 3. The applicant provides: * a self-authored statement * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 18 December 1972 * his discharge paperwork * a medical letter from Arbor Hills Psychological Services, dated 27 January 2017 (seven pages) with a healthcare authorization release form 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 30 June 1967. He completed training and was awarded military occupational specialty 12B (Combat Engineer). 3. His DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam from on or about 20 November 1967 through on or about 19 November 1968 while assigned to the Company A, 15th Engineer Battalion, 9th Infantry Division. 4. He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 17 July 1968 for being absent from his unit (AWOL), Company A, 15th Engineer Battalion, at Dong Tam Base, Republic of Vietnam, from on or about 8 July 1968 through on or about 13 July 1968. He was reduced to the rank/grade of private first class/E-3. 5. He was honorably discharged for the purpose of immediate reenlistment on 27 April 1969. Subsequently, he reenlisted in the Regular Army on 28 April 1969 while stationed at Fort Hood, TX. 6. He accepted NJP under the provisions of Article 15 of the UCMJ on 18 September 1969 for violating a lawful order from a superior noncommissioned officer not to operate his privately owned vehicle without it being properly registered with the Fort Hood Provost Marshall, while assigned to Company D, 17th Engineer Battalion, Fort Hood, TX. 7. Special Orders Number 51 issued by Headquarters, 20th Engineer Battalion, APO San Francisco, dated 22 February 1971, ordered him to report to Fort Dix, NJ, en route to an assignment with the U.S. Army Republic of Vietnam with an effective date 28 March 1970. His DD Form 20 shows he served in the Republic of Vietnam from on or about 28 March 1970 through on or about 28 February 1971 while assigned to Headquarters and Headquarters Company, 20th Engineer Battalion. 8. He accepted NJP under the provisions of Article 15 of the UCMJ on 31 May 1972, for violating a lawful general order to wit: operating an unregistered, uninsured vehicle, while assigned to 84th Engineer Company, Federal Republic of Germany. 9. His record contains the following: a. DA Form 188 (Extract Copy of Morning Report) from the 84th Engineer Company, dated 5 September 1972 shows he was reported AWOL on or about 6 July 1972, was dropped from rolls on 4 August 1972, and was apprehended and returned to military control on or about 29 August 1972. b. DA Form 268 (Report for Suspension of Favorable Personnel Actions (Flag)) authenticated 12 October 1972 shows while he was being processed for confinement it was discovered he had a switch-blade knife and approximately 50 grams of marijuana in his possession. Additionally, it states he would be pending a special court-martial for the stated charges. c. AE Form 1107 (Bar to Enlistment/Reenlistment), dated 12 October 1972, shows he was barred from enlistment or reenlistment due to a special court-martial conviction on 11 October 1972 and NJP on 31 May 1972. It further noted he had many letters of indebtedness and was pending further charges for possession of marijuana and illegal weapons. 10. The applicant consulted with legal counsel on 12 October 1972 and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. His records are void of a DD Form 458 that would have shown the basis for this request. 11. In doing so, he acknowledged that the charges preferred against him under the UCMJ authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged: * he had not been subjected to coercion with respect to his request for discharge * he had been advised of the implications that were attached to his request * by submitting the request, he was acknowledging he was guilty of the charge(s) against him or of (a) lesser-included offense(s) therein contained which also authorized imposition of a bad conduct or dishonorable discharge * he could be discharged under other than honorable conditions and he could be ineligible for many or all benefits administered by the VA * he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits as a veteran under both Federal and State laws * he could expect to encounter substantial prejudice in civilian life by reason of a discharge under other than honorable conditions * he elected not to submit any statements in his own behalf 12. Special Court-Martial Order Number 49 issued by Headquarters, 3rd Brigade, 1st Armored Division, on 17 November 1972 shows the applicant was tried and convicted of violating Article 86 of the UCMJ for being AWOL for the period 6 July through 29 August 1972. a. His sentence was adjudged on 11 October 1972 and included confinement at hard labor for 60 days, forfeiture of $150.00 per month for 3 months, and reduction to private (E-1). b. His sentence was approved and duly executed on 17 November 1972 with confinement to be served at the U.S. Forces Confinement Facility, Furth, Federal Republic of Germany. 13. On 20 November 1972, his immediate commander recommended disapproving his request under the provisions of chapter 10, Army Regulation 635-200, based on the seriousness of the charge of possession of an illegal weapon and that he be tried by a special court-martial. 14. His intermediate commander recommended approval of his request for discharge under the provisions of Army Regulation 635-200, chapter 10, with issuance of an undesirable discharge. 15. The separation authority approved the applicant's request for discharge on 9 December 1972 and directed the issuance of an Undesirable Discharge Certificate. 16. The applicant was discharged on 18 December 1972. His DD Form 214 shows: * he was credited with completing 5 years, 3 months, and 24 days of net active service during this period * he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10 * his service was characterized as under conditions other than honorable * he had lost time from 4 July through 28 August 1972 and 30 August 1972 17. There is no evidence in his records nor does he provide evidence that shows he was diagnosed with PTSD or any other behavioral health issues during his period of military service. 18. There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year time limit. 19. The applicant provides a 7-page medical document from Arbor Hills Psychological Services, Jackson, MI, dated 27 January 2017, and signed by a licensed psychologist. This document states the applicant was examined on 7, 9, 10, and 11 January 2017 by interviews and administered a psychological test battery relevant for symptoms of PTSD. He was diagnosed with PTSD, major depressive disorder, other specified anxiety disorder, mild alcohol use disorder, severe cannabis use disorder, and insomnia disorder. His PTSD symptoms were established as being service connected as a result of his military service in Vietnam. 20. In connection with the processing of this case, an advisory opinion was obtained on 14 February 2017 from the Army Review Boards Agency (ARBA) Clinical Psychologist, who opined: a. Documentation reviewed included the applicant's ABCMR application, his personal statement, and supplied records. b. Based on the civilian examination by a licensed psychologist, dated 27 January 2017, the applicant was diagnosed with chronic PTSD, mild and recurrent major depressive disorder, other specified anxiety disorder, mild alcohol use disorder, severe cannabis use disorder, and insomnia disorder. Inferences drawn were apt and it is reasonable to believe his use of drugs began as an effort to soothe himself over his Vietnam experiences. It is reasonable to also allow that his AWOL represented an effort to avoid military work, though it was also probably driven by his drug habit. It is not at all uncommon for PTSD patients to arm themselves with knives and guns. It goes with their suspiciousness and fearfulness. Therefore, based on the available behavioral health evidence, there is mitigating evidence that the applicant's misconduct could be attributed to an undiagnosed behavioral health disorder. c. The applicant met medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, and following the provisions set forth in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant's era of service. d. A review of available documentation discovered evidence of mental health considerations that could be sufficient to recommend changing the character of the discharge in this case. A nexus between the applicant's misconduct (avoidant behaviors, suspiciousness, and fearfulness) and his mental health was discovered. 21. The applicant was provided a copy of the advisory opinion on 15 February 2017 and responded by providing a 2-page typed statement and submitted a 6-page typed statement of support from a friend. a. In his statement he opined that he had no argument with the findings of the advisory opinion. However, wanted to clarify and further reiterate his experiences in Vietnam and contention for an upgrade. b. The 6-page statement of support, in effect, stated the friend has known the applicant since 2001 and is a close and trusted friend. She contends he is a good person and she has seen his behavior drastically change at times as a result of his experiences in Vietnam. REFERENCES: 1. 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. It is not an investigative agency. The ABCMR begins 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. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. 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. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a provides an honorable discharge is given when the quality of the Soldier's service has generally met standards of acceptable conduct and duty performance. b. Paragraph 3-7b states 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. c. Chapter 10 of the version in effect at the time 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 VA 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. An under conditions other than honorable characterization of service required reduction to the lowest enlisted grade. 3. 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. 4. 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." 5. 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. 6. The fifth edition of the DSM 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 criterion assesses functioning, and the eighth criterion clarifies symptoms as not attributable to a substance or co-occurring medical condition. 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 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 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. 11. Army Regulation 635-5 (Separation Documents), in effect at the time, prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It establishes standardized policy for the preparation of the DD Form 214. The DD Form 214 provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge. DISCUSSION: 1. The applicant contends he has PTSD from his service in Vietnam, which went undiagnosed and untreated, contributing to his use of drugs and alcohol. After being denied a compassionate reassignment because of family issues, he was AWOL. Notwithstanding the applicant's sincerity, his military records contain no evidence nor does he provide evidence that shows he requested a compassionate reassignment or sought assistance from his command or any other agency for his personal issues. 2. The available evidence shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. After consulting with legal counsel, he voluntarily requested discharge from the Army in order to avoid a trial by court-martial. 3. His voluntary request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable laws and regulations. There is no indication his request was made under coercion or duress. He was provided the opportunity to submit statements in his own behalf but did not do so. 4. His records are void of evidence confirming he was diagnosed or suffered from behavioral health issues while in military service. After his discharge, he was diagnosed with PTSD by a civilian mental health professional who determined his PTSD was service connected as a result of his experiences during his service in Vietnam. 5. The Department of Defense now has a 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. Consequently, Soldiers who suffered from PTSD who were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible recharacterization of their overall service. 6. Based on his combat experiences, he was diagnosed with PTSD by a competent mental health professional. The ARBA Clinical Psychologist opined that based on the available information, it is reasonable to assume his PTSD potentially existed at the time of his service and was a causative factor in the misconduct that led to his discharge. 7. His record of indiscipline includes being AWOL from his unit for 6 days while in combat, two instances of failing to obey lawful orders, being AWOL resulting in a special court-martial, and being charged for possession of an illegal weapon, which suggests his overall service did not rise to the level of a fully honorable character of service. 8. The applicant's request for a personal appearance hearing was carefully considered. By regulation, an applicant is not entitled to a hearing before the Board. A formal hearing may be authorized by the Board or by the ABCMR Director whenever justice requires. In this case, the evidence of record is sufficient to render a fair and equitable decision at this time. 9. As a related issue, the applicant's date of entry shown on his DD Form 214 for the period ending 18 December 1972 is in error. His records contain a valid DD Form 214 that covers the period 30 June 1967 through 27 April 1969. The entry date for his final DD Form 214 should be 28 April 1969, commensurate with his immediate reenlistment, and should show he was credited with 3 years, 5 months, and 27 days of net active service during this period and he was credited with 1 year, 9 months, and 28 days of prior active service. These administrative corrections do not require Board action. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004697 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004697 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2