BOARD DATE: 14 February 2017 DOCKET NUMBER: AR20160007080 BOARD VOTE: _____x____ ___x____ ____x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 14 February 2017 DOCKET NUMBER: AR20160007080 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant's DD Form 214 for the period ending 11 February 1971 to show his character of service as general under honorable conditions. ____________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: 14 February 2017 DOCKET NUMBER: AR20160007080 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). 2. The applicant states: a. He feels his discharge should be upgraded to at least general under honorable conditions as port-traumatic stress disorder (PTSD) was not taken into account at the time of his discharge. b. He thought he was about to be drafted into the Army in 1967 at the age of 19, so he decided to enlist instead in order to learn a trade. He was sent to Vietnam in 1968 and experienced many traumatic events that he recounts over several pages. c. Shortly after arriving in country during the Tet Offensive, they were attacked with mortar rounds while he was performing perimeter duty, resulting in a fire that destroyed their fuel storage and tents. When the Viet Cong tried to break through the perimeter, he shot one of the Viet Cong advancing toward him. One night a rocket went right into a bunker and killed all four guys on duty, leaving only a portion of a lower leg with a boot on it. While on a mission driving a fuel truck, he went past a small village where he had known several people that was destroyed. On the side of the road was a stack of Vietnamese who looked like a stack of wood and made him think of what the Jewish people looked like during World War II. Whenever he hears a helicopter overhead, he has flashbacks to a memory of riding in a helicopter with three Viet Cong aboard. One of the Viet Cong was not cooperative during questioning, so the gunner threw him out of the helicopter. He recounts many more horrific stories of his memories from Vietnam and the deaths he witnessed firsthand. d. When he returned from Vietnam he was sent to Fort Stewart, GA, in April 1969, where he was happy to be stateside and excelled at his duties alongside other Soldiers who had recently returned from Vietnam. He was selected to participate in funeral details and took great pride in his work. He was then sent to Fort Benning, GA, where there were very few Soldiers who had been to Vietnam and the environment was different. He began to have trouble at his unit where he was identified as the leader of a bunch of trouble makers, when that was not the case. He was taken to the stockade and treated like a trainee. He felt as if he could not do anything to please his company commander and was constantly harassed. They wanted him to be in trouble and they were trying to cause him trouble. He was having nightmares and flashbacks from Vietnam and he felt like no one around him understood him or what he was going through. He never felt comfortable at Fort Benning, GA; people would stop and stare at him when he would look for cover after a loud noise or a helicopter flying overhead. e. He was told he had disobeyed a direct order and would appear before a court-martial, although he was never told what direct order he had disobeyed. He was sentenced to 60 days in the stockade. While in the stockade, he was approached and told to sign some paperwork saying he had been absent without leave (AWOL) a few days, but he refused to sign it because he hadn't been AWOL. He was released for good behavior but sent back to his same company. He was threatened with more time in the stockade within 2 weeks. Once released, he visited some friends in the Boston area, but he was picked up by the Lowell, MA, police for being AWOL. He could not convince the police he was not AWOL as he had his weekends free and he was at liberty to be there until Monday morning when he had to return to his unit. He was arrested and transferred from jail to jail until the military police from Fort Devens picked him up 6 or 7 weeks later. f. After he returned to military control, he was put in the stockade where he was locked away and forgotten until February 1971, when he was approached by a guy and told if he signed the form he was presented he would be released the next day with a general discharge. He signed it and the next day he was released from the stockade with his discharge papers. He did not fight his discharge at the time because he just wanted to be done with the Army and try to forget about his time. g. He feels he served his country proudly and his service should not be characterized by his last few months where he was fighting his demons from Vietnam and the constant harassment he experienced at Fort Benning, GA. 3. The applicant provides: * self-authored statement * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * partial Department of Veterans Affairs (VA) letter, dated 17 May 2011 * three character-reference statements * VA Cheyenne Vet Center treatment summary, dated 19 August 2015 * letter to Veterans Service Center from doctor at Platte River Nephrology, dated 23 March 2016 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 12 September 1967. 3. His DA Form 20 (Enlisted Qualification Record) shows he served in Vietnam from 28 March 1968 through 24 March 1969. 4. Two DA Forms 2627-1 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) show he accepted nonjudicial punishment under the UCMJ on the following occasions for the following offenses: * 14 February 1970 – for failing to go to his appointed place of duty, to wit, formation on 8 February 1970, and for failing to go to his appointed place of duty, to wit, reveille on 12 February 1970 * 26 February 1970 – for being AWOL from 17 February 1970 until 20 February 1970 and for failing to go to his appointed place of duty, to wit, reveille on 21 February 1970 and 26 February 1970 5. Headquarters, 197th Infantry Brigade, Special Court-Martial Order Number 117, dated 17 April 1970, shows he appeared before a special court-martial on 1 April 1970 which convened at Fort Benning, GA. He was charged with and found guilty of: * failing to go to his appointed place of duty at the time prescribed on 8 and 10 March 1970 * disobeying a lawful order issued by Second Lieutenant P____ R. D____ on 9 March 1970 * breaking restriction to the limits of the platoon bay, mess hall, and latrine on 9 March 1970 6. On 2 April 1970 while serving in the rank of private first class/E-3, he was sentenced to confinement at hard labor for 2 months, forfeiture of $50.00 pay per month for 4 months, and reduction to the rank/grade of private/E-1. On 17 April 1970, the sentence was approved and ordered duly executed. 7. Headquarters, U.S. Army Infantry Center and Fort Benning, Special Court-Martial Order Number 45, dated 1 June 1970, set aside the findings of guilty of charge I and its specifications (failing to go to his appointed place of duty at the prescribed time on 8 and 10 March 1970) as promulgated in Headquarters, 197th Infantry Brigade, Special Court-Martial Order Number 117, dated 17 April 1970. 8. A memorandum for record from the Commander, Company A, 43d Engineer Battalion (Construction), dated 3 July 1970, subject: Commanding Officer's Inquiry in the Absence without Leave of (Applicant), states the applicant was AWOL on 3 June 1970. There were no known difficulties such as domestic strife, indebtedness, or trouble with superiors that may have caused the applicant to be AWOL. There was no record of any evidence of intent not to return, to miss movement through neglect or design, avoid hazardous duty, or shirk important service. 9. Headquarters, U.S. Army Garrison Troop Command (Provisional), Summary Court-Martial Order Number 111, dated 16 September 1970, shows he was arraigned and tried before a summary court-martial at Fort Devens, MA, on 4 September 1970 while serving in the rank of private/E-1. He was charged with and found guilty of: * being AWOL from his unit from on or about 3 June 1970 until 17 July 1970 * being AWOL from his unit from on or about 22 July 1970 until 28 July 1970 10. He was sentenced to perform hard labor without confinement for 30 days and forfeiture of $80.00 pay per month for 1 month. 11. On 18 December 1970, 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 UCMJ, 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. 12. On 18 December 1970, his immediate commander recommended approval of his request. He indicated the applicant was previously convicted by special court-martial of breaking restriction and by summary court-martial of two specifications of AWOL. The applicant was a constant problem in the unit. Despite attempts to aid and counsel him, he showed no interest in the counseling and ignored any advice offered to him. 13. On 25 January 1971, the officer exercising general court-martial convening authority approved his discharge under the provisions of Army Regulation  635-200, chapter 10, with separation code number 246 (for the good of the service). He directed his reduction to the lowest enlisted grade and issuance of an Undesirable Discharge Certificate. 14. His DD Form 214 for this period shows he was discharged for the good of the service on 11 February 1971 under the provisions of Army Regulation  635-200, chapter 10. He completed 2 years, 8 months, and 28 days of active service during this period with 242 days of lost time. His service was characterized as UOTHC. 15. His service records are void of any reference to diagnoses or medical treatment for PTSD-related symptoms. 16. 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. 17. A partial copy of a VA letter, dated 17 May 2011, shows he was granted service connection for treatment purposes only for the following conditions: * diabetes mellitus and complications, to include erectile dysfunction, retinopathy, and bilateral lower extremities peripheral neuropathy * jungle rot and skin disease, bilateral feet and inguinal areas * status post myocardial infarction * PTSD 18. He provided three character-reference statements, two from friends and one from his former spouse. a. His former wife states they were married from 1972 until 1978 and separated in December 1976. She states he had difficulty with interpersonal relationships, communication, holding a job for any length of time, and accepting responsibility. He often used drugs or alcohol as a means to cope and unfortunately did not seek professional help at the time. b. His two friends attest to his honest and hardworking nature. He is known for helping in the community and being proud of serving his country in Vietnam. His experience in Vietnam left him withdrawn and feeling helpless, without access to the medical and mental health help he so desperately needs. 19. A VA Cheyenne Vet Center treatment summary, dated 19 August 2015 and signed by his treating licensed clinical social worker, states the applicant has been seen at the Cheyenne Vet Center for symptoms related to his PTSD since February 2014. He did not appeal his discharge right away because he wanted nothing to do with the military or the government. He was disillusioned with the Army and suffered symptoms related to his PTSD that caused him to avoid anything that reminded him of his service. He still becomes anxious, agitated, confused, and disheartened when he talks about his time at Fort Benning, GA. He feels he served his country honorably and should be treated as such. 20. A letter from Dr. R____ L. A____, Platte River Nephrology, dated 23 March 2016, states the applicant began dialysis treatments 3 days per week for his end-stage renal disease. He will receive this treatment lifelong, or until he receives a kidney transplant with favorable results. 21. The Army Review Boards Agency psychiatrist provided an advisory opinion on 7 December 2016 wherein she states: a. The applicant's military records are void of documentation of PTSD symptoms and there is no indication he failed to meet military medical standards. VA medical documentation consists of a VA Rating Decision letter, dated 17 May 2011, which indicates he has been found service-connected for PTSD for treatment purposes only. b. The lack of documentation of PTSD in his military records does not necessarily indicate he did not have PTSD. In the era of his military service, PTSD symptoms were frequently not recognized. Oftentimes in such cases, the presence of PTSD had to be inferred from behavioral indicators. Such is the case with the applicant. His commander stated there was no evidence of intent to avoid hazardous duty or shirk important service. His history of good performance and lack of disciplinary problems followed by suddenly and repetitively being AWOL is not uncommon in Soldiers suffering from PTSD. This pattern of behavior may reflect the psychological distress he felt at the prospect of being constantly reminded about his experiences in Vietnam vis-à-vis the military, resulting in being AWOL to avoid having to face the cause of his psychological distress. c. Based on the information available at this time, there is sufficient evidence to conclude the applicant had undiagnosed PTSD while serving on active duty. Because PTSD can be associated with avoidant behaviors, there is likely a nexus between his PTSD and the misconduct of being AWOL that led to his discharge UOTHC from the Army. 22. He was sent a copy of the advisory opinion on 9 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. d. A discharge UOTHC is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, security reasons, or in lieu of trial by court martial. When a Soldier is to be discharged UOTHC, the separation authority will direct an immediate reduction to the lowest enlisted grade. 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. 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. 5. 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. 6. 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? 7. 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. 8. 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 suffered from PTSD at the time of his discharge resulting from his Vietnam service. 2. His DD Form 214 shows he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. He was charged with multiple counts of disobeying lawful orders; failing to go to his place of duty; and being AWOL on numerous occasions, amounting to 242 days of lost time in less than 3 years of service. These are offenses punishable under the UCMJ 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. 3. There is no evidence indicating 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. 4. 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. 5. VA medical documents show he was diagnosed with service-connected PTSD and has received treatment for PTSD and PTSD-like symptoms at a VA clinic since 2014. 6. The Army Review Boards Agency psychiatrist 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, there is likely a nexus between his PTSD and his misconduct which led to his discharge UOTHC from the Army. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160007080 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160007080 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2