BOARD DATE: 25 July 2017 DOCKET NUMBER: AR20160005080 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: 25 July 2017 DOCKET NUMBER: AR20160005080 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: 25 July 2017 DOCKET NUMBER: AR20160005080 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 undesirable discharge to general under honorable conditions. 2. The applicant states his character of service should be upgraded based on his diagnosis of post-traumatic stress disorder (PTSD). 3. The applicant provides: * Department of Veterans Affairs (VA) Veteran Information Form and Progress Note Information, dated 19 November and 29 December 2015 (2 pages) * Army Times article, "Veterans can apply to upgrade discharge for PTSD," dated 17 December 2014 (1 page) 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 29 December 1965 for a period of 3 years. He completed training as a lineman. He was advanced to the rank of specialist four (SP4). 3. On 12 August 1966, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for the wrongful possession of three false Armed Forces Liberty Passes. 4. The applicant served in Vietnam from 15 September 1966 to 14 September 1966. He was awarded the Purple Heart for wounds received in action. During his service in Vietnam, the applicant accepted NJP for being absent from his unit from 1400 to 1730 hours on 31 March 1967. 5. On 22 January 1968 at Fort Bragg, NC, the applicant accepted NJP for disobeying a lawful order. 6. On 8 July 1968, the applicant was convicted by a special court-martial (SPCM) of being absent without leave (AWOL) from 18 May to 5 June 1968. His punishment consisted of confinement at hard labor for 4 months, hard labor without confinement for 30 days, and forfeiture of $68.00 per month for 5 months. The court-martial convening authority suspended parts of the sentence for 5 months. The sentence was adjudged the same day. 7. On 30 December 1968 at Fort Meade, MD, the applicant was convicted by a SPCM of being AWOL from 5 August to 2 December 1968. Part of his punishment included reduction to private first class/pay grade E-3. 8. On 3 November 1969, the applicant pled guilty and was convicted by civil authorities of breaking and entering an uninhabited dwelling. He was placed on probation for 5 years. 9. On 14 January 1970 at Fort Knox, KY, the applicant was convicted by a SPCM of being AWOL from 24 January to 24 November 1969 and breaking restriction. Part of his punishment included reduction to private/pay grade E-1. 10. A DA Form 1049 (Personnel Action), dated 19 January 1970, shows the applicant's commander recommended his administrative discharge for misconduct under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion) due to his conviction by a civil court. He cited the applicant's four periods of AWOL, two periods of confinement, and that he was dropped from the rolls of the Army as a deserter twice as the basis for his recommendation. 11. On 27 January 1970, the appropriate authority approved the recommendation and directed issuance of a DD Form 258A (Undesirable Discharge Certificate). 12. On 2 February 1970, the applicant was discharged accordingly. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 2 years, 9 months and 6 days of active military service and had 486 days of lost time. 13. On 4 August 1971, the Army Discharge Review Board denied the applicant's petition for an upgrade his discharge. 14. In the processing of this case, a staff medical advisory opinion was obtained wherein the psychologist made the following comments and conclusions based on the available personnel and medical records: a. The applicant had a pattern of disrespecting the law that existed prior to his entry into the Army. He was eventually discharged due to a civil conviction for breaking and entering an uninhabited dwelling in 1969. b. The applicant sought medical treatment from the VA in 2015 for PTSD related symptoms. Even if one allows that a diagnosis of PTSD existed in the applicant (during his period of service); and given the liberal Secretary of Defense policy guidance concerning discharge upgrades (especially for Vietnam era veterans), at best the PTSD only mitigates his AWOLs and disrespectful behavior. It would not mitigate the breaking and entering conviction which brought about his discharge. c. The applicant met medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness). d. A review of available documentation did not reveal evidence of mental health considerations that are sufficient to warrant changing his characterization of service. A nexus between the applicant's AWOLs and his mental health was discovered; but not for the criminal conviction under which he was discharged. 15. On 13 January 2017, a copy of the advisory opinion was sent to the applicant for his information and opportunity to respond. No response was received. REFERENCES: 1. Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel due to misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion). Paragraph 33 provided that members convicted by civil authorities would be considered for separation. An undesirable discharge was normally considered appropriate. 2. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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. Whenever there is doubt, it is to be resolved in favor of the individual. 3. Army Regulation 635-200, 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. 4. 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. 5. 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. 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 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. 8. 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. 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 the 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 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 under other than honorable conditions 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 under other than honorable conditions. 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. DISCUSSION: 1. The applicant claims he suffered from PTSD at the time of his discharge resulting from his Vietnam service. 2. Records show the applicant was recommended for discharge from the Army by reason of conviction by civil authority. 3. The applicant's discharge proceedings, resulting from a civilian conviction for a criminal act of breaking and entering for the purpose of burglary, were conducted in accordance with law and regulations in effect at the time. The characterization of the applicant's discharge was commensurate with the reason for discharge and overall record of military service in accordance with the governing regulations in effect at the time. 4. 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. 5. Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible re-characterization of their overall service. 6. The Army Review Boards Agency psychologist opined that although there is no evidence in his military records to show he was diagnosed with PTSD prior to his discharge, there is sufficient evidence to conclude he had undiagnosed PTSD while serving on active duty. Because PTSD can be associated with avoidant behaviors (AWOL), there is likely a nexus between his PTSD and some of his acts of misconduct. However, the psychologist further opined that the applicant's undiagnosed PTSD was not a nexus for the illegal behaviors that led to his civil conviction, which ultimately led to his discharge. 7. The Board must weigh whether the applicant's conduct is mitigated by his PTSD diagnosis, and if so, determine if a discharge upgrade is warranted. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005080 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160005080 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2