BOARD DATE: 26 April 2018 DOCKET NUMBER: AR20160008299 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 I BOARD DATE: 26 April 2018 DOCKET NUMBER: AR20160008299 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, correction of his records to show he was medically separated due to post-traumatic stress disorder (PTSD) and seizures. 2. The applicant states his records are incomplete and some of the entries are incorrect. His discharge should have been due to PTSD and seizures while in a combat zone. He was medically evacuated to Da Nang, Vietnam, and then on to Camp Zama, Japan. His other than honorable conditions discharge should have been a medical discharge due to seizures that continued well after his 1971 discharge. 3. The applicant provides page 3 of his 4-page DA Form 20 (Enlisted Qualification Record). 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 (RA) on 29 September 1969. He held military occupational specialty 11D (Armor Reconnaissance Specialist). He served in Vietnam from 1 March 1970 to on or about 15 October 1970. 3. While in Vietnam, he was honorably discharged on 21 June 1970 for immediate reenlistment in the RA. He was issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that credited him with 8 months and 23 days of active service. 4. On 4 September 1970, while still in Vietnam, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 26 July 1970 to 26 August 1970. 5. On 15 October 1970, he was transferred in a patient status to Camp Zama, Japan, and on 29 October 1970, he was issued a temporary physical profile for probable acute toxic encephalopathy, seizure disorder, and possible rabies exposure. His physical profile prohibited assignments to isolated areas where definite medical care was not available and prohibited assignment to a unit where sudden loss of consciousness would be dangerous to self or others. The profile was temporary and he was to be reevaluated on 3 January 1971. He was found medically qualified for limited duty and returned to duty. 6. He departed Vietnam around 14 November 1970 and he was assigned to the 3rd Squadron, 3rd Cavalry, at Fort Lewis, WA, around 16 December 1970. 7. On 6 May 1971, he accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 28 April 1971 to 6 May 1971. 8. On 7 June 1971, he again accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 29 May 1971 to 4 June 1971. 9. On 25 June 1971, he was convicted by a summary court-martial of one specification of failing to go at the time prescribed to his appointed place of duty, one specification of breaking restriction, and one specification of being AWOL from 18 to 21 June 1971. The court sentenced him to confinement at hard labor for 30 days and forfeiture of pay. 10. On 18 August 1971, he departed his unit in an AWOL status and shortly thereafter, he was dropped from the rolls as a deserter. He appears to have returned to military control on or about 29 November 1971. 11. The complete facts and circumstances surrounding the applicant’s discharge action are not available for review with this case. However, his record contains: a. Special Orders Number 5, issued by Headquarters, 3rd Armored Cavalry Regiment, on 7 January 1972, discharging him from the RA, effective 10 January 1972, in accordance with chapter 10 (in lieu of trial by court-martial) of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel). b. DA Form 137 (Installation Clearance Record), dated 10 January 1972, indicating he was being separated under chapter 10 of AR 635-200. c. Expulsion Order from the United States Military Reservation, dated 10 January 1972, prohibiting him from reentering Fort Lewis. d. DD Form 214 that shows he was discharged on 10 January 1972 with a character of service of under other than honorable conditions and he was issued an Undesirable Discharge Certificate. He completed 2 years and 27 days of active service during the referenced period. His DD Form 214 also shows: * he had 105 days of lost time during this period (17 August 1971 to 29 November 1971) * he was separated from service on temporary records and his affidavit 12. There is no indication he applied to the Army Discharge Review Board for a review of his discharge within that board’s 15-year statute of limitations. 13. On 27 September 2017, a staff member of the Army Review Boards Agency (ARBA) wrote to the applicant and asked him to provide medical documentation that supported his issue of PTSD. The applicant did not respond. 14. His case was forwarded to an ARBA medical advisor/psychologist for review. The medical advisor reviewed the available records and rendered an advisory opinion on 21 November 2017. The medical advisor stated this review was conducted to determine if there was an alleged medical condition that warranted separation through medical channels or of there was a medical condition that was not considered during separation processing. a. The applicant is contending he had PTSD at the time he was discharged and should have been medically retired because of his seizures. He did not provide evidence from licensed providers of his behavioral health or neurological diagnoses and history after his discharge from the Army in 1972. b. His available record does not reasonably support PTSD or another boardable behavioral health condition existed at the time of the applicant's military service. In particular, his final profile was "1-1-1-1-1-1." He was also not reporting symptoms, per the records of that time, consistent with his having active PTSD. c. The applicant's condition did not fail medical retention standards in accordance with AR 40-501 (Standards of Medical Fitness), warranting a separation through medical channels. Although he had a diagnosis of seizure disorder and a temporary profile for it (P3), his profile (PULHES) at discharge was "1-1-1-1-1-1." The records did not show he ever reached a Medical Retention Decision Point (i.e., the point when the Soldier's progress appears to have medically stabilized; the course of further recovery is relatively predictable; and where it can be reasonably determined that the Soldier is most likely not capable of performing the duties required of his/her MOS, grade, or rank). d. It is unknown of there had been behavioral health (BH) conditions present at the time of misconduct. However, the proximate records would suggest that he had no active behavioral health condition. His seizure disorder was apparently controlled with Dilantin, hence, the P1 profile. The alleged BH conditions were not mitigating for the misconduct. e. The applicant met medical retention standards in accordance with chapter 3 of AR 40-501 and following the provisions set forth in AR 635-40 (Physical Evaluation for Retirement, Retention, or Separation) that were applicable to the his era of service. The applicant's medical conditions were duly considered during medical separation processing. A review of the available documentation found insufficient evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case. f. Based on the information available for review at the time, the applicant did not have mitigating medical or behavioral health condition(s) for the offenses which led to his separation from the Army. 15. The applicant was provided a copy of this advisory opinion to give him an opportunity to submit a rebuttal and/or additional comments. He did not respond. REFERENCES: 1. AR 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel. Chapter 10 provided that a member who has committed an offense or offenses under the Uniform Code of Military Justice for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. a. Paragraph 1-14 stated when a member was to be discharged under other than honorable conditions, the convening authority would direct an immediate reduction to the lowest enlisted grade. b. Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. c. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 2. The 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. 3. 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, 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. 4. 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. 5. 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 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? 6. Although DOD acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had an undiagnosed condition of PTSD at the time of their discharge, it is presumed that they were properly discharged based upon the evidence that was available at the time. Conditions documented in the record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which PTSD or PTSD-related conditions may be reasonably determined to have existed at the time of discharge; those conditions will be considered potential mitigating factors in the misconduct that caused the under other than honorable conditions characterization of service. Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of under other than honorable conditions. Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. 7. 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 (TBI); 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. DISCUSSION: 1. The applicant’s military record is void of the complete facts and circumstances that led to his voluntary request for discharge, although his records clearly show he was AWOL for a lengthy period of time. 2. He was discharged under the provisions of chapter 10 of AR 635-200, in lieu of a court-martial. His character of service was under other than honorable conditions. The issuance of a discharge under the provisions of chapter 10, AR 635-200, would have required the applicant to have voluntarily, willingly, and in writing request discharge from the Army in lieu of a trial by court-martial. 3. It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The available records contain no information that would indicate the contrary. The separation authority determined the applicant's service did not rise to the level required for an honorable or general characterization of service. 4. This Board is to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on mental health conditions, including PTSD. In this case, the medical advisor reviewed the available records and found no evidence of a disabling condition that would support a change to the character or reason for the discharge in this case. BOARD DATE: 26 April 2018 DOCKET NUMBER: AR20160008299 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) AR20160008299 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160008299 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2