IN THE CASE OF: BOARD DATE: 19 January 2017 DOCKET NUMBER: AR20160005744 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 IN THE CASE OF: BOARD DATE: 19 January 2017 DOCKET NUMBER: AR20160005744 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. IN THE CASE OF: BOARD DATE: 19 January 2017 DOCKET NUMBER: AR20160005744 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 (UOTHC) to honorable. 2. The applicant states: a. He received an honorable discharge from the Army, then served 2 more years in Vietnam and Thailand. He had just returned from Vietnam at the time of his separation. He was suffering from severe depression and drinking heavily. He was self-medicating and was not offered any help. He suffers from post-traumatic stress disorder (PTSD) and has been diagnosed several times. b. He was transferred to Fort Rucker, AL, and he had a noncommissioned officer with whom he did not see eye to eye. At the time he was young and immature and chose to separate from the military without thinking of his future and the consequences. c. He has since turned his life around and is getting the help he needs. He no longer abuses drugs or alcohol and lives a righteous life. He would like to get this chapter of his life fixed as well and have his discharge upgraded. It is very important to him because he served honorably in Vietnam and Thailand and loved being a Soldier. He just made poor decisions when he returned stateside. d. He has been denied benefits he has a right to under the U.S. Constitution. It is unjust for him to be homeless, suffer with low wages, and go without medication he can't afford when he served and defended our country. 3. The applicant provides: * letter from a licensed clinical social worker * three character references 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 was inducted into the Army of the United States on 3 May 1968 at the age of 19. 3. His DA Form 20 (Enlisted Qualification Record) shows he served in Vietnam from 22 September 1968 through 5 August 1969. He was honorably discharged for the purpose of immediate enlistment on 29 July 1969. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for this period shows he completed 1 year, 2 months, and 27 days of active service at the time of his enlistment. 4. He served in Thailand from 26 September 1969 through 25 September 1970 and was later assigned to Fort Eustis, VA, effective 28 October 1970. 5. His DA Form 20 shows he was dropped from the Army rolls for desertion on 22 March 1971, then returned to duty and assigned to Fort Gordon, GA, on 17 May 1971. His DA Form 20B (Insert Sheet to DA Form 20 – Record of Court-Martial Conviction) shows he was convicted in Headquarters Command, U.S. Army Signal Training Center and Fort Gordon, Special Court-Martial Number 420 of being absent without leave (AWOL) from on or about 29 October 1970 through 17 May 1971. 6. A Headquarters Company, 83d Engineer Battalion (Construction), Fort Rucker, AL, memorandum, dated 16 August 1971, subject: Commander's Inquiry, states he was assigned to Headquarters and Headquarters Company, 83d Engineer Battalion, on 4 August 1971 and departed AWOL on 9 August 1971. It also states he received nonjudicial punishment under Article 15 of the Uniform Code of Military Justice on numerous occasions and was a habitual AWOL offender. 7. On 11 February 1972, he 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. He consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a discharge UOTHC, and the procedures and rights available to him. He did not submit a statement in his own behalf. 8. A DD Form 458 (Charge Sheet), dated 1 March 1972, shows he was charged with being AWOL from his unit from on or about 9 August 1971 until on or about 8 February 1972 and again from on or about 28 February 1972 until on or about 1 March 1972. 9. On 10 March 1972, his immediate commander recommended approval of the applicant's request. He indicated the applicant was previously convicted by court-martial and was AWOL from 9 August 1971 to 8 February 1972 and again from 28 February 1972 to 1 March 1972. 10. On 20 March 1972, the officer exercising general court-martial convening authority approved his discharge under the provisions of Army Regulation  635-200, chapter 10, for the good of the service, and directed his reduction to the lowest enlisted grade and issuance of an Undesirable Discharge Certificate. 11. His DD Form 214 for this period shows he was discharged for the good of the service on 27 March 1972 under the provisions of Army Regulation 635-200, chapter 10. His service was characterized as UOTHC. He completed 1 year, 5 months, and 8 days of active service during this period with 445 days of lost time. 12. There is no 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. 13. He provided a letter from a licensed clinical social worker and substance abuse therapist at Greenleaf, dated 10 February 2016, which states: a. The applicant re-entered the Greenleaf Adult Focus Program on 17 August 2015 and successfully completed the program on 11 September 2015. The program consisted of a mental health track and a substance abuse track. b. He was provided specific knowledge of the dynamics of addiction, recovery, relapse prevention, and an introduction to the 12-step philosophy. Because he lives in Greenleaf's Foundations Recovery Residence, he continues to attend 12-step meetings in the local community. He also receives instruction through Greenleaf's weekly "Big Book" study groups, men's groups, and relapse prevention groups where he continues to learn about cognitive-behavioral techniques and 12-step strategies to assist him in developing effective coping strategies to manage his substance use disorder. 14. He also provided three character references. Two of the letters state the same thing, verbatim, but are signed by different friends, and the third is written by an employee of Greenleaf. a. The first two references state they have known the applicant for several years and know he served our country in Vietnam and Thailand. While there he witnessed several tragic deaths and bombings. He suffers from PTSD and has unjustly been denied benefits to which he is entitled. In the past he turned to alcohol as a result of denial of his benefits, but he is now sober. They attest to the fact he is a compassionate, honest, and courageous man and hope the Board will help him. b. The third letter is written by Mr. G____ S____, Greenleaf Chief Operating Officer, wherein he states the applicant served in the Vietnam War and was diagnosed with PTSD. The applicant has struggled because of the traumatic events he experienced during the war and he self-medicated to cope with his PTSD throughout his life. The applicant has made a decision to change his life and has done everything he can to lead a sober life. He has known the applicant for over 1 year and always found him to be a great asset to their program, attending his meetings and outpatient therapy appointments at the Greenleaf consulting center. He is a reliable resident who always pays his rent on time and is willing to lend a helping hand to new residents, serving as a house leader. c. A member of the ABCMR staff contacted Greenleaf telephonically on 13 January 2017 to ascertain in what capacity Mr. S____ dealt with the applicant. A Greenleaf staff member divulged that Mr. S____ was the prior Chief Financial Officer and no longer worked at Greenleaf. Mr. S____ had not been employed at Greenleaf in the capacity of mental health care provider, clinical psychologist, psychiatrist, or the like. 15. His service records are void of any reference to diagnoses or medical treatments for either PTSD or PTSD-like symptoms. 16. The Army Review Boards Agency sent him a letter on 27 April 2016, requesting copies of any medical documents that support his claim of PTSD. He did not provide a response or any medical documents. 17. The Army Review Boards Agency psychologist provided an advisory opinion on 2 December 2016 wherein he states: a. No records at the time support the applicant's claim that he had PTSD or any other behavioral health disorder. He provided evidence from a friend that he had PTSD, but the professional evidence he provided was from a licensed clinical social worker who treated the applicant in a substance use disorder program from 17 August 2015 to 11 September 2015. The licensed clinical social worker mentioned no other diagnoses than substance use. The applicant has not provided any medical evidence that he has ever been diagnosed with PTSD. b. A review of available documentation did not find evidence of a medical disability or condition that would support a change to the character or reason for his discharge. A causal nexus between his claimed behavioral health diagnosis and his misconduct was not discovered. The applicant met medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness). 18. He was sent a copy of the advisory opinion on 2 December 2016 and given an opportunity to provide a rebuttal, but he did not respond. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10, in effect at the time, provided that a member who had committed an offense or offenses for which the authorized sentence included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges were preferred. Although an honorable or general discharge could be directed, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. b. An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. c. 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. 2. 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. 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." 3. 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. 4. 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. 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; or (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; or (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; or (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); and (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, and (6) sleep disturbance. f. Criterion F – Duration: Persistence of symptoms (in Criteria B, C, D, and E) for more than 1 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. 5. 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 that 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. 6. 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. 7. Board for Correction of Military/Naval Records (BCM/NR) 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? 8. 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. 9. Title 38, Code of Federal Regulations, section 3.12, provides that pension, compensation, or dependency and indemnity compensation is not payable unless the period of service on which the claim is based was terminated by discharge or release under conditions other than dishonorable. A discharge under honorable conditions is binding on the VA as to the character of discharge. Section 3.12(c)(6) states benefits are not payable where the former service member was discharged UOTHC as a result of AWOL for a continuous period of at least 180 days. This bar to benefit entitlement does not apply if there are compelling circumstances to warrant the prolonged unauthorized absence. However, if a person was discharged or released by reason of the sentence of a general court-martial, only a finding of insanity or a decision of the ABCMR established under Title 10, U.S. Code, section 1552, can establish basic eligibility to receive VA benefits. DISCUSSION: 1. The applicant claims he was young and immature at the time of his discharge and suffering from PTSD resulting from his Vietnam service. 2. Records show he was 19 years old at the time of his induction and 23 years old at the time of his discharge. There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service. 3. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10. Although the specific facts and circumstances surrounding his discharge are not available, the evidence shows he was charged with being AWOL on five occasions, amounting to over 400 days of lost time in less than 3 years of service, offenses punishable under the Uniform Code of Military Justice that could have resulted in a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge from the Army to avoid trial by court-martial. 4. There is no evidence that indicates he was not properly and equitably discharged in accordance with the regulations in effect at the time, that all requirements of law and regulations were not met, or that his rights were not fully protected throughout the separation process. 5. At the time of his 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. 6. Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible recharacterization of their overall service. 7. Although he claims he suffers from PTSD, a review of his military records and the evidence he provided show no diagnosis of or treatment for PTSD or PTSD-like symptoms either during or after his military service. The letter he provided from his treating licensed clinical social worker and substance abuse therapist shows he suffers from a substance use disorder. The Army Review Boards Agency psychologist found no evidence of a medical disability or condition that would support a change to the character or reason for his discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005744 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160005744 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2