IN THE CASE OF: BOARD DATE: 5 June 2018 DOCKET NUMBER: AR20160005216 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : x : x :x DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 5 June 2018 DOCKET NUMBER: AR20160005216 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 her deceased husband’s (a former service member (FSM)) under other than honorable conditions (UOTHC) discharge received on 29 November 1965. 2. The applicant contends the FSM suffered from post-traumatic stress disorder (PTSD) and his military record is in error or unjust. 3. The applicant provides copies of the FSM’s: * DD Form 4 (Enlistment Record - Armed Forces of the United States), dated 5 August 1959 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), effective 17 January 1960 * DD Form 4, dated 18 January 1960 * DA Form 24 (Service Record), dated 5 December 1960 * DD Form 481-3 (Clinical Record Cover Sheet), dated 25 October 1961 * DD Form 214, effective 1 February 1962 * DD Form 4, dated 2 February 1962 * DA Form 2627 (Summarized Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 20 January 1964 * DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ), dated 28 February 1964 * DA Form 8-275-3 (Clinical Record Cover Sheet), dated 3 November 1964 * Special Court-Martial Order Number 25, dated 2 December 1964 * DA Form 2627-1, dated 12 April 1965 * Special Court-Martial Order Number 12, dated 27 May 1965 * Special Court-Martial Order Number 26, dated 19 June 1965 * DD Form 214, effective 29 November 1965 * DA Form 20 (Enlisted Qualification Record) * DA Form 26 (Record of Court-Martial Conviction) * DA Form 20B (Insert Sheet to DA Form 20 – Record of Court-Martial Conviction) * certificate of death (Missouri), dated 20 August 2013 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. A review of his records shows the FSM previously served as a Reserve of the Army. He completed basic combat and advanced individual training and was awarded military occupational specialty 63A (Automotive Maintenance Helper). 3. On 17 January 1960, the FSM was discharged to enlist in the Regular Army. He completed 4 months and 5 days of active service that was characterized as honorable. 4. On 18 January 1960, the FSM enlisted in the Regular Army for a period of 3 years and was discharged on 1 February 1962. He had completed 2 years and 14 days of service this period that was characterized as honorable. 5. On 2 February 1962, the FSM enlisted in the Regular Army for a period of 6 years. His DD Form 4, item 11 (Grade), shows he enlisted as a private first class (PFC)/E-3. 6. The FSM’s DA Form 24, Section 4 (Chronological Record of Military Service), shows he was assigned to Headquarters and Headquarters Battery, 2nd Battalion, 28th Artillery, United States Army Europe, on 2 December 1963. 7. On 20 January 1964, the FSM received non-judicial punishment (NJP) for being absent without proper authority; specifically, he was absent from bed check at 0100 hours on 19 January 1964. The punishment imposed was restriction to the Battery area, to include billets for 14 days. 8. On 6 March 1964, the FSM received NJP for a breach of peace, on or about 19 February 1964. The punishment imposed was restriction to the Battery area, mess hall, Chapel of choice and place of duty for 30 days and forfeiture of 40 dollars of pay. 9. On 13 August 1964, the FSM was tried before a special court-martial for a violation of the UCMJ, Article 86 (Charge I) and Article 121 (Charge II). a. The specification for Charge I shows the FSM did, on or about 2100 hours on 8 August 1964, without proper authority absent himself from his unit and remained absent until at or about 0300 hours on 9 August 1964. b. The specification for Charge II shows the FSM did, on or about 2100 hours on 8 August 1964, wrongfully appropriate a U.S. Government vehicle that was the property of the U.S. Army. c. He was found guilty of the specification of Charge I and not guilty of the specification of Charge II. His sentence was confinement and hard labor for one month, forfeiture of 70 dollars pay per month for one month, and reduction to the grade of private (PV1)/E-1. 10. On 2 December 1964, the FSM was tried before a special court-martial for a violation of the UCMJ, Article 91(Charge I) and Article 134 (Charge II). a. The specification for Charge I shows, on or about 2030 hours, on 5 November 1964, the FSM was disrespectful in language toward his superior noncommissioned officer (NCO), who was then in the execution of his office, by saying "Y___ B___ M___ F___," or words to that affect. b. The specification for Charge II shows the FSM, on or about 2030 hours on 5 November 1964, wrongfully communicated a threat to SSG/E-5 L___ S__ to injure him by saying "I better not see you downtown cause I'll do you in," or words to that affect. c. He was found guilty of all specifications and charges. His sentence was confinement and hard labor for four months, forfeiture of 75 dollars of pay per month for four months, and reduction to the grade of private (PV1)/E-1. 11. The FSM’s DA Form 20 shows in: a. item 38 (Record of Assignments), he received unsatisfactory ratings on 1 May 1964, 13 August 1964, 12 September 1964, 24 May 1965, and 4 October 1965. b. item 42 (Remarks), his unsatisfactory rating was due to his constant disregard for military regulations and he was "not recommended for further service." 12. A Report of Psychiatric Evaluation, dated 27 January 1965, shows the FSM was examined by an Army psychiatrist on 15 January 1965. The psychiatrist diagnosed him with passive-aggressive personality that was not in the line of duty (LOD) or due to his own misconduct. Item IV (Mental Status) shows there was no evidence of significant neurosis, psychosis, or organic brain disease. The Army psychiatrist recommended the FSM be administratively separated. 13. A Unit Commanders Report for Psychiatric Examination, undated, states: a. The applicant’s behavior came to the attention of the commander when he assumed command on 13 November 1964. The FSM was a border-line Soldier who would function marginally only if his environment suited him and demanded of him only that which he agreed with. b. The FSM had been previously considered for administrative separation and had no potential for retention in the service. His complete disregard for authority made him a constant administrative burden to the unit and a threat to the morale of his fellow Soldiers. All attempts to rehabilitate the FSM had failed and he recommended he be eliminated from the service at the earliest possible date. 14. On 12 April 1965, the FSM received NJP under Article 15 of the UCMJ for a violation of Article 86 (AWOL). It was reported he did, without proper authority, go from his unit and remained so absent until on or about 0900 hours, 10 April 1965. The punishment imposed was forfeiture of 24 dollars and fifty cents of pay, 14 days of restriction, and 14 days extra duty. 15. On 24 May 1965, the FSM was tried before a special court-martial for a violation of the UCMJ, Article 109 (Charge I) and Article 128 (Charge II). a. The specification for Charge I shows the FSM did, on or about 0720 hours on 10 May 1965, willfully and wrongfully damage a windshield by pushing Private First Class (PFC/E-3) J___ E. R___ against the windshield of a car, the windshield being of a value in excess of fifty dollars and the property of Sergeant First Class (SFC) W___ T___. b. The specification for Charge II shows the FSM did, on or about 0720 hours, on 10 May 1965, assault PFC J___ E. R___ by striking him with his fist. c. Special Court Martial Orders Number 12, dated 27 May 1965, show he was found guilty of all specifications and charges. His sentence was confinement and hard labor for six months, forfeiture of 75 dollars pay per month for six months, and reduction to the grade of private (PV1)/E-1. 16. A Report of Psychiatric Evaluation, dated 4 June 1965, shows the FSM was examined by an Army psychiatrist. The psychiatrist diagnosis was “no psychiatric disease” and he was cleared for appropriate command action. Item V (Findings and Conclusions) states: a. It seems that if he had been transferred away from the unit that tried to board him and given a new chance to make he would not have had the feeling that one more mistake would finish him. Since his problems seemed to have begun with this battalion, maybe they would have ended when he left this battalion. b. The applicant was motivated and was appealing his court martial. 17. On 18 June 1965, the FSM’s acting commander recommended he be eliminated from service and given an Undesirable Discharge Certificate (DD Form 258A). 18. On 19 June 1965, Special Court Martial Order Number 12, dated 27 May 1965, was set aside. The specification of Charge I and Charge I were dismissed. The sentence was reevaluated and affirmed. 19. The FSM’s DA Form 20B, item 50 (Synopsis of Specifications, Including Date of Offense), shows Special Court Martial Order Number 12, dated 27 May 1965, specifications of Charge I and Charge I were deleted from his record. 20. On 17 August 1965, the FSM's chain of command endorsed the discharge and recommended he be furnished an Undesirable Discharge Certificate. 21. On 21 August 1965, the FSM acknowledged notification that he was being recommended for discharge under the provisions of Army Regulation 635-208 (Personnel Separations – Discharge – Unfitness). a. He acknowledged he was afforded the opportunity to request counsel and accepted the opportunity. b. He requested a hearing by a board of officers. c. He waived his right to submit a written statement on his own behalf. d. He acknowledged he was advised as to the type of discharge he may receive. e. He indicated he understood that an undesirable discharge would be under conditions other than honorable and as a result he could be deprived of many or all rights as a veteran under Federal and State laws and that he could expect to encounter substantial prejudice in civilian life. 22. A DA Form 37 (Report of Proceedings of Board of Officers), dated 4 October 1965, shows the FSM was recommended for discharge from service for unfitness and an undesirable discharge (DD Form 258A (Undesirable Discharge Certificate)). The appropriate separation authority approved his discharge for unfitness under the provisions of Army Regulation 635-208, 19 October 1965. 23. Special Orders Number 330 EXTRACT, dated 26 November 1965, shows the FSM was ordered to be discharged effective 29 November 1965. A DD Form 214 and a DD Form 258A were also ordered for issue. 24. On 29 November 1965, the FSM was discharged in accordance with Special Order Number 330 EXTRACT and his service was characterized as under conditions other than honorable. The DD Form 214 issued at that time shows he completed 5 years, 5 months, and 9 days of total active service, with 279 days of time lost during his final term of service. 25. On 14 February 2018, an advisory opinion was received from the Army Review Boards Agency (ARBA) Medical Advisor/Psychologist. a. A psychiatric examination dated 4 March 1965 described the FSM as a borderline Soldier who functioned marginally only if his environment suited him and demanded of him only that which he agreed with. (1) The medical examiner believed the FSM had no potential for retention due to his complete disregard for authority which made him a constant administrative burden to his unit and a threat to the morale of his fellow Soldiers. (2) It was also indicated that all attempts to rehabilitate him had failed. b. A second psychiatric examination dated 4 June 1965 indicated the FSM was cleared for appropriate command action; however, feelings of anger and depression were noted and attributed to the FSM being passed over for promotion and denied a transfer to a new unit which led to heavy drinking and getting into trouble. c. An elimination record dated 18 Jun 1965 indicated the FSM was recommended for an undesirable discharge and that he had no physical or psychiatric incapacities which would prevent him from rendering satisfactory service. He was deemed undesirable for further military service. A service record also indicated he had received an unsatisfactory rating due to his constant disregard for military regulations and that he was not recommended for further service. d. The Army Review Boards Agency Clinical Psychologist was asked to determine if there is a nexus between the information/diagnosis contained in that documentation and the misconduct that resulted in the FSM’s discharge. (1) Based on thorough review of available medical records, there is no evidence that the FSM met criteria for a medical or behavioral health condition during his military service or that an undiagnosed condition mitigated his misconduct. (2) In summary, the FSM demonstrated a propensity to engage in misconduct and a general disregard for rules despite efforts of corrective action. The available evidence does not support a change to his under other than honorable discharge as this characterization of service accurately reflects the FSM’s overall record of service. 26. On 18 February 2018, the applicant was provided the above advisory and given the opportunity to submit comments. The applicant has not submitted any additional comments or evidence. 27. The FSM’s record is void of evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15 year statute of limitations. REFERENCES: 1. Army Regulation 635-208, then in effect, set forth the policy for administrative separation for unfitness. Paragraph 3 of the regulation provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following: frequent incidents of a discreditable nature with civil or military authorities; sexual perversion; drug addiction; an established pattern of shirking, and/or; an established pattern showing dishonorable failure to pay just debts. 2. Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. The regulation stated: a. An honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’s service has generally met standards of acceptable conduct and performance of duty for Army personnel. b. A general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. 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." 4. 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. 5. The Diagnostic and Statistical Manual of Mental Disorders (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. a. Criterion A, stressor: The person was exposed to: death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence, as follows: (one required) (1) Direct exposure. (2) Witnessing, in person. (3) Indirectly, by learning that a close relative or close friend was exposed to trauma. If the event involved actual or threatened death, it must have been violent or accidental. (4) Repeated or extreme indirect exposure to aversive details of the event(s), usually in the course of professional duties (e.g., first responders, collecting body parts; professionals repeatedly exposed to details of child abuse). This does not include indirect non-professional exposure through electronic media, television, movies, or pictures. b. Criterion B, intrusion symptoms: The traumatic event is persistently re- experienced in the following way(s): (one required) (1) Recurrent, involuntary, and intrusive memories. (2) Traumatic nightmares. (3) Dissociative reactions (e.g., flashbacks) which may occur on a continuum from brief episodes to complete loss of consciousness. (4) Intense or prolonged distress after exposure to traumatic reminders. (5) Marked physiologic reactivity after exposure to trauma-related stimuli. c. Criterion C, avoidance: Persistent effortful avoidance of distressing trauma-related stimuli after the event: (one required) (1) Trauma-related thoughts or feelings. (2) Trauma-related external reminders (e.g., people, places, conversations, activities, objects, or situations). d. Criterion D, negative alterations in cognitions and mood: Negative alterations in cognitions and mood that began or worsened after the traumatic event: (two required) (1) Inability to recall key features of the traumatic event (usually dissociative amnesia; not due to head injury, alcohol, or drugs). (2) Persistent (and often distorted) negative beliefs and expectations about oneself or the world (e.g., "I am bad," "The world is completely dangerous"). (3) Persistent distorted blame of self or others for causing the traumatic event or for resulting consequences. (4) Persistent negative trauma-related emotions (e.g., fear, horror, anger, guilt, or shame). (5) Markedly diminished interest in (pre-traumatic) significant activities. Feeling alienated from others (e.g., detachment or estrangement). (6) Constricted affect: persistent inability to experience positive emotions. e. Criterion E, alterations in arousal and reactivity: Trauma-related alterations in arousal and reactivity that began or worsened after the traumatic event: (two required) (1) Irritable or aggressive behavior (2) Self-destructive or reckless behavior (3) Hypervigilance (4) Exaggerated startle response (5) Problems in concentration (6) Sleep disturbance f. Criterion F, duration: Persistence of symptoms (in Criteria B, C, D, and E) for more than one month. g. Criterion G, functional significance: Significant symptom-related distress or functional impairment (e.g., social, occupational). h. Criterion H, exclusion: Disturbance is not due to medication, substance use, or other illness. 6. 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. 7. 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. 8. On 25 August 2017 the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; traumatic brain injury; sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. 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 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. 11. Army Regulation 15-185 (Army Board for Correction of Military Records) 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. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION AND CONCLUSIONS: 1. The FSM’s record is void of documentation showing he reported symptoms of PTSD during or after his Army service or was ever diagnosed with PTSD later in life. 2. At the time of the FSM’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. 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. 3. The ARBA clinical psychologist stated based on thorough review of available medical records, there is no evidence that the FSM met criteria for a medical or behavioral health condition during his military service or that an undiagnosed condition mitigated his misconduct. The available evidence does not support a change to his UOTHC discharge as this characterization of service accurately reflects the FSM’s overall record of service. 4. The FSM’s record shows his discharge was processed according to law and regulations in effect at the time. There is no evidence indicating he was not properly and equitably discharged in accordance with the regulations, that all requirements of law and regulations were not met, or that his rights were not fully protected throughout the separation process. The characterization of his discharge was commensurate with the reason for discharge and overall record of military service in accordance with the governing regulations. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160005216 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005216 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2