BOARD DATE: 17 August 2017 DOCKET NUMBER: AR20160008461 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 BOARD DATE: 17 August 2017 DOCKET NUMBER: AR20160008461 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. BOARD DATE: 17 August 2017 DOCKET NUMBER: AR20160008461 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, the spouse and legal guardian of the former service member (FSM), requests that the FSM's under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge due to post-traumatic stress disorder (PTSD). 2. The applicant states, in effect, that the FSM has been diagnosed with PTSD. a. As a Vietnam veteran, the FSM was exposed to the trauma of war at a very young age. The horror has lasted his lifetime. He enlisted (not drafted) at a young age to serve and was not mentally prepared to handle combat. b. When his shelter mate was murdered laying above him in a hammock, the FSM awoke to blood dripping on his face. The FSM grabbed his rifle and sprayed the room with bullets killing the enemy. After that incident, he turned to alcohol and drugs to self-medicate in Vietnam. c. When the FSM returned to the United States he went absent without leave (AWOL). He received treatment and was then court-martialed and discharged. He also received professional treatment for the drug and alcohol abuse after he was discharged. d. When the FSM awakens to this day, it is with a clenched fist ready to punch. He has carried this anger his whole life. He refuses to speak of Vietnam. In 2008, his spouse begged him to seek treatment with a psychologist. The psychologist talked with the FSM on many occasions. He suffers from PTSD and Parkinson's disease, as a result of his exposure to Agent Orange. e. In today's military, his discharge would not have happened. He was unjustly discharged. He was suffering from undiagnosed PTSD and was denied adequate medical treatment. Drugs and alcohol were his only medication to help cope. All the warning signs were there; this was an injustice that led to his misconduct and unfavorable discharge. Vietnam War era veterans, in contrast, have been denied the opportunity of appropriate consideration of PTSD. 3. In a separate, self-authored statement, the applicant states, in effect: a. Her husband is very sick and cannot write and barely talks due to his illness. She is his legal guardian. She first met the FSM when she was only 12 years old and he was 13. They grew up childhood sweethearts and dated until they became old enough to become engaged to marry. b. The FSM joined the Army and she remained in school with plans to marry after her graduation. After the FSM joined the Army, he spent time in Vietnam for a tour of duty. He drove fuel trucks and was stationed for a time at Cam Rahn Bay. He was exposed to Agent Orange while stationed in Vietnam. He was also traumatized as a young Soldier. c. The experience left the FSM suffering from PTSD, which the military did not provide treatment for due to the fact they didn't know enough about it back then. When the FSM returned from Vietnam, he was a different person. He was angry, jumpy, and ready to argue with people, and he had acquired a drug and alcohol problem. d. The applicant immediately broke off their engagement and they went their separate ways. The FSM went AWOL and continued his drug and alcohol binge from what she was told. He was captured and court-martialed. After his capture, he received drug treatment for addiction and was discharged. She married the FSM after 34 years. e. Vietnam is not a subject her husband is willing to talk about. It is as if it never happened. He carries so much anger, she asked him to seek professional help. The FSM began seeing a psychologist in 2009, when he began relating his experiences in Vietnam. Due to his exposure to Agent Orange, he now suffers from advanced Parkinson's disease, which is why he needs a guardian. After struggling for years, she is swallowing her pride and asking for help. They are in dire need of getting benefits for the FSM. The change in discharge will help them with benefits. 4. The applicant provides a Letter of Guardianship, issued by the Superior Court of Lake County, State of Indiana on 12 March 2015. 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 FSM enlisted in the Regular Army on 7 August 1970 at the age of 17. He entered active duty, completed his initial entry training, and was awarded military occupational specialty 76W (Petroleum Storage Specialist). 3. A DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 30 August 1971, shows the FSM received non-judicial punishment for violating Article 86 of the UCMJ; specifically, for being AWOL from on or about 16 August 1971 through on or about 30 August 1971. 4. The FSM served in the Republic of Vietnam from on or about 3 March 1972 through on or about 22 June 1972, a period of 3 months and 20 days. He apparently went AWOL while on authorized leave and did not return. 5. Special Court-Martial Order Number 109, issued by U.S. Army Armor Center, Fort Knox, KY on 3 April 1973, shows the FSM was convicted of being AWOL from on or about 23 June 1972 through on or about 23 January 1973. The court sentenced him to perform extra duty for 60 days; to forfeit $200 pay per month for three months; and to be reduced to the lowest enlisted grade. The sentence was adjudged on 23 March 1973, and was approved on 3 April 1973. 6. A Standard Form (SF) 88 (Report of Medical Examination), dated 26 March 1974, shows the FSM underwent a separation medical examination, in which he did not annotate any medical concerns, and the medical examiner cleared him for separation. 7. A DA Form 458 (Charge Sheet), dated 29 March 1974, shows court-martial charges were preferred against the FSM for two specifications of violating Article 86 of the UCMJ. Specifically, he was charged with being AWOL from on or about 8 November 1973 through on or about 20 November 1973, and from on or about 3 December 1973 through on or about 15 March 1974. 8. The FSM consulted with legal counsel on 4 April 1974 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 an under other than honorable conditions discharge, and the procedures and rights available to him. Subsequent to receiving this legal counsel, he voluntarily requested discharge in lieu of trial by court-martial, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. 9. In his request for discharge, he indicated he understood that if his request for discharge was accepted, he may be discharged under other than honorable conditions. He indicated he had been advised of the possible effect of an under other than honorable conditions discharge and understood that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws. He was advised he may submit statements in his behalf. He submitted a statement in his own behalf with his request for discharge in lieu of trial by court-martial, wherein he noted: a. In Vietnam, somebody was always riding him, all of the time. Then he received a Dear John letter from his girl. He was depressed and started using heroin. He put in to go home and straighten things up with his girl but he couldn't patch things up with her. He did quit using drugs. b. All of this was because of the Army. He wanted to marry the girl he was speaking of but she said the Army and her wouldn't see eye to eye. So he never went back to Vietnam. He stayed AWOL for 7 months, then figured if he went back he could get out because by that time, he hated the Army and everything about it. c. He went through a court-martial but felt the punishment was unjust. He was reassigned to another installation and was on post detail; all he did was detail after detail. He hated that, and he wasn't getting paid right. He went almost 5 months living off of his parents. He parents made his car payments and he felt he caused a lot of hardship between him and his family. So he went AWOL again; he felt like a human when AWOL with no one bothering him every time he turned around. d. He made his mind up he was not going to put up with it anymore because he wanted out. He saw that the best benefit was to release him from the Army. He didn't like it and didn't want it pushed down his throat because it wouldn't stay down. If his request was turned down, he would feel the Army was forcing it down on him, so he would probably go AWOL again at the first chance he got, and try for a discharge next time. 10. The FSM's company and battalion commanders recommended approval of his request for discharge for the good of the service on 9 April 1974, and recommend that he receive an Undesirable Discharge Certificate. 11. The separation approval authority approved the FSM's request on 16 April 1974, under the provisions of Army Regulation 635-200, chapter 10, and directed that he be discharged UOTHC and furnished an Undesirable Discharge Certificate. 12. The FSM was discharged on 25 April 1974. The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation  635-200, chapter 10, and his character of service was under other than honorable conditions. 13. The applicant's military and medical records are void of evidence that shows he underwent drug and alcohol treatment or reported any mental health concerns and/or PTSD symptoms during his period of service. 14. The ADRB denied the FSM's request for a discharge upgrade on 19 May 1976, stating the discharge was proper and equitable. 15. During the processing of this case, the Army Review Boards Agency (ARBA) Case Management Division asked the applicant to provide documentation confirming the FSM's diagnosis of PTSD. The applicant did not respond. 15. In the processing of this case, an advisory opinion was obtained on 5 July 2017, from the ARBA Psychiatrist. The advisory official noted and opined: a. No civilian medical documentation was provided for review. Review of the Department of Veterans Affairs (VA) electronic medical record (JLV) indicates that it contains no data regarding the FSM. b. Review of the FSM's military records indicates the following: (1) An SF 89 (Report of Medical History), dated 20 July 1970, shows the FSM answered "No" to each of the following symptoms listed in the query "Have you ever had or have you now: epilepsy, frequent trouble sleeping, frequent or terrifying nightmares, depression or excessive worry, loss of memory or amnesia, or nervous trouble of any sort." (2) An SF 88, dated 20 July 1970, shows he had a normal physical examination. His psychiatric profile is documented as no psychiatric disability. (3) An SF 93 (Report of Medical History), dated 26 March 1974, shows he answered "No" to each of the following symptoms listed in the query "Have you ever had or have you now: epilepsy, frequent trouble sleeping, frequent or terrifying nightmares, depression or excessive worry, loss of memory or amnesia, or nervous trouble of any sort." (4) An SF 88, dated 26 March 1974, shows he had a normal [separation] physical examination. His psychiatric profile is documented as no psychiatric disability. c. There is no indication in the FSM's available military records of any behavioral-health symptoms or conditions. There is no indication of PTSD symptoms. There is no indication the FSM failed to meet military retention standards. d. The FSM's spouse reports in her ABCMR application that the FSM has been seen by Dr. FW, a psychologist, for treatment of his PTSD related symptoms. However, no medical documents supporting the FSM's diagnosis of PTSD have been submitted to the ABCMR. Without medical documentation, no determination of whether or not PTSD was a mitigating factor in the FSM's UOTHC discharge can be made. 16. The applicant was provided a copy of this advisory opinion on 6 July 2017, to provide him an opportunity to comment and/or submit a rebuttal. However, he did not respond. REFERENCES: 1. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. 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. b. 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. c. Chapter 10 provides that a member who has committed an offense or offenses 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. 2. PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster. The Diagnostic and Statistical Manual of Mental Disorders (DSM) is published by the American Psychiatric Association (APA) and it provides standard criteria and common language for the classification of mental disorders. In 1980, the APA added PTSD to the third edition of its DSM-III nosologic classification scheme. Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice. From an historical perspective, the significant change ushered in by the PTSD concept was the stipulation that the etiological agent was outside the individual (i.e., a traumatic event) rather than an inherent individual weakness (i.e., a traumatic neurosis). The key to understanding the scientific basis and clinical expression of PTSD is the concept of "trauma." 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 DSM fifth revision (DSM-5) was released in May 2013. This revision includes changes to the diagnostic criteria for PTSD and Acute Stress Disorder. The PTSD diagnostic criteria were revised to take into account things that have been learned from scientific research and clinical experience. The revised diagnostic criteria for PTSD include a history of exposure to a traumatic event that meets specific stipulations and symptoms from each of four symptom clusters: intrusion, avoidance, negative alterations in cognitions and mood, and alterations in arousal and reactivity. The sixth criterion concerns duration of symptoms; the seventh assesses functioning; and the eighth criterion clarifies symptoms as not attributable to a substance or co-occurring medical condition. a. Criterion A, stressor: The person was exposed to: death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence, as follows: (one required) (1) Direct exposure. (2) Witnessing, in person. (3) Indirectly, by learning that a close relative or close friend was exposed to trauma. If the event involved actual or threatened death, it must have been violent or accidental. (4) Repeated or extreme indirect exposure to aversive details of the event(s), usually in the course of professional duties (e.g., first responders, collecting body parts; professionals repeatedly exposed to details of child abuse). This does not include indirect non-professional exposure through electronic media, television, movies, or pictures. b. Criterion B, intrusion symptoms: The traumatic event is persistently re-experienced in the following way(s): (one required) (1) Recurrent, involuntary, and intrusive memories. (2) Traumatic nightmares. (3) Dissociative reactions (e.g., flashbacks) which may occur on a continuum from brief episodes to complete loss of consciousness. (4) Intense or prolonged distress after exposure to traumatic reminders. (5) Marked physiologic reactivity after exposure to trauma-related stimuli. c. Criterion C, avoidance: Persistent effortful avoidance of distressing trauma-related stimuli after the event: (one required) (1) Trauma-related thoughts or feelings. (2) Trauma-related external reminders (e.g., people, places, conversations, activities, objects, or situations). d. Criterion D, negative alterations in cognitions and mood: Negative alterations in cognitions and mood that began or worsened after the traumatic event: (two required) (1) Inability to recall key features of the traumatic event (usually dissociative amnesia; not due to head injury, alcohol, or drugs). (2) Persistent (and often distorted) negative beliefs and expectations about oneself or the world (e.g., "I am bad," "The world is completely dangerous"). (3) Persistent distorted blame of self or others for causing the traumatic event or for resulting consequences. (4) Persistent negative trauma-related emotions (e.g., fear, horror, anger, guilt, or shame). (5) Markedly diminished interest in (pre-traumatic) significant activities. Feeling alienated from others (e.g., detachment or estrangement). (6) Constricted affect: persistent inability to experience positive emotions. e. Criterion E, alterations in arousal and reactivity: Trauma-related alterations in arousal and reactivity that began or worsened after the traumatic event: (two required) (1) Irritable or aggressive behavior (2) Self-destructive or reckless behavior (3) Hypervigilance (4) Exaggerated startle response (5) Problems in concentration (6) Sleep disturbance f. Criterion F, duration: Persistence of symptoms (in Criteria B, C, D, and E) for more than one month. g. Criterion G, functional significance: Significant symptom-related distress or functional impairment (e.g., social, occupational). h. Criterion H, exclusion: Disturbance is not due to medication, substance use, or other illness. 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 under other than honorable conditions may have had an undiagnosed condition of PTSD at the time of their discharge. It is also acknowledged that in some cases this undiagnosed condition of PTSD may have been a mitigating factor in the Soldier's misconduct which served as a catalyst for their discharge. Research has also shown that misconduct stemming from PTSD is typically based upon a spur of the moment decision resulting from temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues for an extended period of time. 6. 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 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 applicant's service. 7. BCM/NRs are not courts, nor are they investigative agencies. Therefore, the determinations will be based upon a thorough review of the available military records and the evidence provided by each applicant on a case-by-case basis. When determining if PTSD was the causative factor for an applicant's misconduct and whether an upgrade is warranted, the following factors must be carefully considered: * Is it reasonable to determine that PTSD or PTSD-related conditions existed at the time of discharge? * Does the applicant's record contain documentation of the occurrence of a traumatic event during the period of service? * Does the applicant's military record contain documentation of a diagnosis of PTSD or PTSD-related symptoms? * Did the applicant provide documentation of a diagnosis of PTSD or PTSD-related symptoms rendered by a competent mental health professional representing a civilian healthcare provider? * Was the applicant's condition determined to have existed prior to military service? * Was the applicant's condition determined to be incurred during or aggravated by military service? * Do mitigating factors exist in the applicant's case? * Did the applicant have a history of misconduct prior to the occurrence of the traumatic event? * Was the applicant's misconduct premeditated? * How serious was the misconduct? 8. 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. Correction 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. DISCUSSION: 1. The applicant's request for an upgrade of the FSM's UOTHC discharge was carefully considered. She contends that the effects of serving in Vietnam contributed to the FSM's misconduct. 2. The evidence of record shows the FSM served for 3 months in Vietnam. The applicant contends the FSM's mental health problems, resulting from Vietnam service, caused him to go AWOL. His record shows he received non-judicial punishment for being AWOL prior to serving in Vietnam. The evidence of record confirms he went AWOL while on a tour in Vietnam (did not return from an authorized leave) and several more times after being returned to military control. 3. The FSM was charged with the commission of serious offenses that were punishable under the UCMJ with a punitive discharge. After consulting with counsel, he elected discharge under the provisions of Army Regulation 635-200, chapter 10. Discharges under this regulatory provision are voluntary requests for discharge in lieu of trial by court-martial. By requesting the chapter 10 discharge, he admitted he was guilty of the charges. 4. The applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable laws and regulations. There is no indication his request was made under coercion or duress. His discharge accurately reflects his overall record of service. The characterization of service he received was commensurate with the reason for his discharge. 5. At the time of the applicant's discharge, PTSD was largely unrecognized by the medical community and DoD. However, both the medical community and DoD now have a more thorough understanding of PTSD and its potential to serve as a causative factor in a Soldier's misconduct when the condition is not diagnosed and treated in a timely fashion. 6. Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible re-characterization of their overall service. 7. An ARBA advisory opinion concluded that sufficient evidence to support the applicant's contention of mental-health considerations was not provided to support a change to the character of the discharge in this case. A nexus between the FSM's misconduct and his mental-health was not discovered. The applicant has not provided documentation confirming the applicant has been diagnosed with PTSD. 8. An honorable characterization of service is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel. An under honorable conditions (general) characterization of service is appropriate for those Soldiers whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable 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) AR20150016310 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160008461 13 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2