BOARD DATE: 8 May 2018 DOCKET NUMBER: AR20160006922 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration I BOARD DATE: 8 May 2018 DOCKET NUMBER: AR20160006922 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 reconsideration of the previous request for an upgrade of his character of service from under other than honorable conditions (UOTHC) to honorable. 2. The applicant states he was treated for psychiatric conditions prior to being discharged, conditions that resulted from his service in the Republic of Vietnam. He is currently being treated for post-traumatic stress disorder (PTSD) because of his Vietnam service. Based on this new evidence and the September 2014 Secretary of Defense (SECDEF) Memorandum on PTSD, he believes this untreated condition was a contributing factor that caused him to act uncharacteristically, eventually leading to his discharge from the Army. 3. The applicant provides: * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * SECDEF Memorandum, dated 3 September 2014 * approximately 40 medical documents from his military service record and civilian health care provider * two third-party letters of support CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records, summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20100023010 on 26 April 2011. 2. The applicant provides a new argument and new evidence, which was not considered by the ABCMR previously. His new argument and evidence warrants consideration by the Board at this time. 3. The applicant enlisted in the Regular Army on 1 September 1965. 4. The applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on the following dates: a. On 17 September 1965, for willfully disobeying a lawful order from a superior noncommissioned officer at Fort Knox, KY, on or about 15 September 1965. b. On 18 September 1965, for willfully disobeying a lawful order from a superior officer at Fort Knox, KY, on or about 17 September 1965. 5. The applicant served in the Republic of Vietnam from on or about 16 December 1966 through on or about 16 July 1968, a period of 19 months. 6. The applicant accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on 15 October 1968, for, while on duty as a Guard Shift Leader, removing an unknown amount of .45 caliber ball ammunition from a secured field safe, and for shooting rabbits on U.S. government property, to wit: U.S. Army Support Detachment, Cleveland, OH, on or about 29 September 1968. 7. A U.S. Army Armor Center (USAARMC) Form 1172 (Report of Psychiatric Evaluation), dated 13 December 1968, shows the applicant was referred to the Mental Hygiene Consultation Service, Fort Knox, KY for a psychiatric evaluation by a licensed medical professional. a. The medical professional stated the applicant quit school in the 10th grade and impulsively joined the Army and impulsively asked to go to Vietnam. He served successfully as an MP until he returned from Vietnam. He had differences with his chain of command and as a result of being absent without leave (AWOL); he was put in the stockade. Subsequently, he was referred for a mental health evaluation. b. He was diagnosed with paranoid personality, manifested by impulsiveness, poor judgement, grandiosity, excessive dependency, AWOL, and suspiciousness. c. He was determined to be mentally responsible, able to distinguish right from wrong, adhere to the right, and had the mental capacity to understand and participate in board proceedings. d. The medical professional recommended the continuation of medication and the issuance of a temporary profile. The medical professional further recommended that any further duty assignment should be at a location having the ability to provide psychiatric care treatment. 8. Special Court-Martial Order Number 1777, issued by Headquarters, Special Troops, USAAMC, Fort Knox, KY on 30 December 1968, shows: a. The applicant was convicted of: (1) violating one specification of Article 86 of the UCMJ; specifically, for being AWOL from on or about 5 November 1968 through on or about 11 November 1968; and (2) violating one specification of Article 89 of the UCMJ; specifically, for behaving himself with disrespect toward a commissioned officer with words, on or about 17 November 1968. b. The applicant was sentenced to confinement at hard labor for three months and forfeiture of $70 pay per month for three months. The sentence was adjudged on 18 December 1968 and approved and ordered duly executed on 30 December 1968, with confinement at the USAAMC Stockade, Fort Knox, KY. 9. Special Court-Martial Order Number 30, issued by Headquarters, Special Troops, USAAMC, Fort Knox, KY on 6 January 1969, ordered that the unexecuted portion of the approved sentence to confinement at hard labor was to be suspended, unless sooner vacated, effective immediately. 10. A DA Form 188 (Extract Copy of Morning Report), dated 29 February 1969, shows the applicant was reported AWOL on or about 29 January 1969 and was dropped from the rolls of the Army on 27 February 1969. 11. A DD Form 616 (Report of Return of Absentee), prepared on 25 June 1969, shows the applicant was returned to military control on 18 June 1969, at the Special Processing Battalion (Provisional) at Fort George G. Meade, MD. 12. A DD Form 458 (Charge Sheet), dated 23 June 1969, shows court-martial charges were preferred against the applicant for being AWOL from on or about 29 January 1969 through on or about 18 June 1969, a period of 140 days. 13. A Kimbrough Army Hospital (KAH) Form 64 (Report of Medical Evaluation), dated 1 July 1969, shows the applicant was examined by a medical doctor on 24 June 1969, at Kimbrough Army Hospital, Fort George G. Meade, MD, and was found to be medically qualified for retention in the military service. 14. The applicant consulted with legal counsel on 8 July 1969, and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UOTHC discharge, and of the procedures and rights that were available to him. 15. Subsequent to receiving legal counsel, the applicant 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. In doing so, he acknowledged 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 it * he could be discharged under other than honorable conditions and he could be ineligible for many or all benefits administered by the Veterans Administration (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 an undesirable discharge * he elected not to submit any statements in his own behalf 16. The applicant's battalion commander initially recommended disapproval of the applicant's request on 10 July 1969; however, after subsequent reevaluation, he recommended approval on 24 July 1969. 17. The separation authority did not favorably consider the applicant's discharge for the good of service - in lieu of trail by court-martial, as a result of initial recommendation the applicant's battalion commander. However, following the battalion commander's re-evaluation and recommendation, he approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial on 1 August 1969. He directed the issuance of an Undesirable Discharge Certificate and directed his reduction to the lowest enlisted grade. 18. The applicant was discharged on 1 August 1969. The DD Form 214 he was issued shows: * he was credited with the completion of 3 years, 2 months, and 27 days of total active service * he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial * his service was characterized as UOTHC * he had lost time from 5 November through 13 November 1968; 16 November 1968 through 5 January 1969; and 29 January through 31 July 1969 19. There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 20. The applicant provides a 15-page medical document from his civilian provider, Lindenwald Medical Associates, Hamilton, OH, dated 29 December 2015, which was signed by a licensed psychologist. This document states that after testing and a complete evaluation, the applicant was diagnosed with PTSD, major depressive disorder, and panic disorder [episodic paroxysmal anxiety] without agoraphobia. His PTSD symptoms were established as being service- connected as a result of his military service in Vietnam. 21. The applicant provides two third-party letters of support from his brother and sister, who attest to changes in his behavior after he came home from Vietnam, as well as their desire for him to get help. 22. In connection with the processing of this case, the Army Review Boards Agency (ARBA) Clinical Psychologist provided an advisory opinion, dated 17 August 2017. The advisory opinion states: a. The documentation reviewed included the applicant's ABCMR application, his personal statement, and supplied records. b. The applicant had excellent conduct and efficiency ratings until he went AWOL in November 1968, after his return from Vietnam. His military legal problems coincided with a deterioration in his mental status, as evidenced by his diagnosis of schizophrenic reaction, and subsequently, paranoid personality in December 1968. c. He contends PTSD is responsible from his misconduct during this period, and has provided medical evidence from civilian providers of a PTSD diagnosis. Even though the symptoms he reported at the time do not seem to support a PTSD diagnosis at the time of his service, the policy of liberal consideration entitles him to be treated as if he had PTSD at that time in virtue of having some symptoms of PTSD (prodromal symptoms) during his service in 1969 and 1969. d. 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. e. A review of available documentation discovered evidence of mitigating medical or behavioral health condition(s) for the offenses leading to his separation from the Army. 23. The applicant was provided with a copy of the advisory opinion on 21 August 2017. The applicant responded by electronic mail on 28 August 2017, stating he accepted the advisory opinion and would not file any objections or request for any extensions. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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. 2. 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. DOD acknowledges 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. 3. 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. a. 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. b. 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. c. 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. 4. On 3 September 2014 the SECDEF 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. 5. The acting Under SECDEF for Personnel and Readiness provided clarifying guidance on 25 August 2017, which expanded the 2014 SECDEF memorandum, that directed the BCM/NRs and DRBs to give liberal consideration to veterans looking to upgrade their less-than-honorable discharges by expanding review of discharges involving diagnosed, undiagnosed, or misdiagnosed mental health conditions, including PTSD; traumatic brain injury; or who reported sexual assault or sexual harassment. DISCUSSION: 1. The applicant contends he received treatment for psychiatric conditions during his military service after returning from the Republic of Vietnam. After his discharge, he was diagnosed and treated for PTSD that resulted from his service in Vietnam, which went undiagnosed and untreated and contributed to his misconduct and subsequent discharge from the Army. 2. The available evidence shows the applicant 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. The applicant's 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 that he made his request under coercion or duress. He was afforded the opportunity to submit statements in his own behalf but did not do so. 4. The applicant's military record confirms he was diagnosed with 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 DOD 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 and who were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible change to the characterization of their overall service. 6. Based on his combat experiences, the applicant 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. The applicant's record of indiscipline includes two instances of failing to obey lawful orders, the improper procurement and use of government property, a special court-martial conviction leading to his confinement, and AWOL service totaling 146 days. The applicant's command and the court-martial convening authority determined his overall service did not rise to the level of a fully honorable character of service. BOARD DATE: 8 May 2018 DOCKET NUMBER: AR20160006922 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20100023010, dated 26 April 2011. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing his DD Form 214, for the period ending 1 August 1969, with the following amended entries: * amend item 5a (Grade, Rate, or Rank) to show his rank as "CPL" * amend item 5b (Pay Grade) to show his grade as "E-4" * amend item 6 (Date of Rank) to show his date of rank as "15 Oct 68" * amend item 13a (Character of Service) to show his character of service as "Under Honorable Conditions (General)" 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 to show the characterization of his service as "Honorable." 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) AR20160006922 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006922 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2