BOARD DATE: 3 August 2017 DOCKET NUMBER: AR20160010835 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ___x_____ ___x_____ ___x___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 3 August 2017 DOCKET NUMBER: AR20160010835 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by re-issuing the applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 3 September 1973, to show the characterization of his service as "Under Honorable Conditions (General)” and his rank/grade as SP4/E-4 with a date of rank of 10 May 1971. 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, for the period ending 3 September 1973, to show the characterization of his service as "Honorable." ___________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: 3 August 2017 DOCKET NUMBER: AR20160010835 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 under other than honorable conditions discharge to an honorable discharge. 2. The applicant states he was treated for nervous problems after firefights as in infantryman while in the Republic of Vietnam. He remained nervous and went absent without leave (AWOL) to support his sick mother, his wife and children, and his brothers. His company commander recommended that he not be discharged for the good of the service. He did not know that discharges could be upgraded. He was a Project 100,000 Soldier with only a 10th grade education. 3. The applicant provides: * Standard Form (SF) 600 (Chronological Record of Medical Care), with entries dated 6 February, 13 February, and 15 February 1971 * SF 513 (Clinical Record – Consultation Sheet), dated 16 February 1971 * DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 19 October 1972 * DA Forms 188 (Extract Copy of Morning Report), dated 13 December 1972 and 21 June 1973 * an extract of his DA Form 20 (Enlisted Qualification Record) * his chapter 10 separation processing documents * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the period ending 3 September 1973 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 22 April 1971. He entered active duty, completed his initial entry training, and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman). 3. The applicant served in the Republic of Vietnam from on or about 21 November 1970 through on or about 13 December 1971. In Vietnam he was awarded the Combat Infantryman Badge and advanced to specialist four (SPC)/pay grade E-4 on 10 May 1971. 4. An SF 513, dated 16 February 1971, shows that while the applicant was serving in Vietnam, he reported nervousness and sleeping difficulties to a medical examiner. He attributed the concerns to his platoon's actions against an enemy force on 15 January 1971, which resulted in 14 Soldiers wounded in action (WIA), and two Soldiers killed in action (KIA). The medical examiner noted that he was unable to sleep soundly, suffered from nightmares, was nervous during the session, and was taking Valium. 5. A DA Form 2627, dated 19 October 1972, shows the applicant received non-judicial punishment (NJP) for violating Article 86 of the UCMJ; specifically, for being AWOL from on or about 9 October 1972 through on or about 17 October 1972. 6. A DA Form 458 (Charge Sheet), dated 20 June 1973, shows court-martial charges were preferred against the applicant for being AWOL from: * on or about 9 November 1972 through on or about 21 December 1972 * on or about 4 January 1973 through on or about 8 February 1973 * on or about 19 March 1973 through on or about 20 June 1973 7. On 2 July 1973, the applicant's battalion commander recommended the applicant be tried by a special court-martial. On 10 July 1973, the applicant's brigade commander forwarded the recommendation for trial by special court-martial authorized to adjudge a bad conduct discharge. 8. On 16 July 1973, the applicant consulted with legal 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 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. a. 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. b. He was advised he may submit statements in his behalf. He did not submit any statements with his request for discharge in lieu of trial by court-martial. 9. The applicant's company, battalion, and brigade commanders each recommended disapproval of his discharge request. However, the general court-martial convening authority approved his request on 13 August 1973, under the provisions of Army Regulation 635-200, chapter 10, and directed that he be reduced to the lowest enlisted grade and discharged under other than honorable conditions (Undesirable Discharge Certificate). 10. The applicant was discharged on 5 September 1973. 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. He served on active duty for 2 years, 8 months, and 19 days, with a total of 179 days of lost time. As directed by the separation authority, the applicant’s DD Form 214 shows he was reduced to private/E-1 with a date of rank of 13 August 1973. He completed 10 years of school. 11. There is no evidence within the applicant's record showing he enlisted under Project 100,000. 12. The applicant did not apply to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 13. The applicant provides a copy of a Chronological Record of Medical Care, with entries dated 6 February, 13 February, and 15 February 1971. These entries show he reported frequent nightmares and insomnia since enemy contact. The entries also show he reported that he was suffering from nervousness and had a fear of death. 14. In the processing of this case, an advisory opinion was obtained on 22 December 2016, from the Army Review Boards Agency (ARBA) Medical Advisor/Psychologist. The advisory official noted and opined: a. Medical notes from the applicant’s time in Vietnam indicate he was in an engagement that resulted in 14 Soldiers in his unit being wounded and two killed. He began experiencing symptoms of an acute stress reaction to combat at that time, and his commander removed him from duties likely to expose him to further combat. b. Even though he has not provided current evidence that he has a post-traumatic stress disorder (PTSD) diagnosis, the medical notes from that time replete with symptoms that at a minimum shows he was having an acute stress reaction, and likely met criteria for PTSD; no matter what his medical status is now. c. His AWOLS upon returning from Vietnam, simultaneously facing a variety of family problems, and his having an inapt response to them, is a familiar pattern for Soldiers in the grip of PTSD. d. His records at the time of discharge do not reasonably support him having a boardable medical condition for that period. He met medical retention standards of Army Regulation 40-501 (Standards of Medical Fitness) and Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation). e. Available case material supports the existence of a mitigating mental health condition. Based on available behavioral-health evidence, there is no reason to decline to mitigate his AWOLs on behavioral-health grounds based on either PTSD, or if not that, a clear-cut acute stress reaction to his combat experiences. f. A review of available documentation did find evidence of mental-health considerations that are supportive of a change to the character of the discharge in this case. A nexus between the applicant's misconduct and his mental-health was discovered. 15. The applicant was provided a copy of this advisory opinion on 29 December 2016, 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 1-14 stated that 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. d. 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 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. 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 under other than honorable conditions 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 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. 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. 9. The Historical Office of the Office of the Secretary of Defense shows that Project 100,000 was a Department of Defense program used from 1966 through 1971 to ease recruitment standards for the U.S. Army. While the project was ostensibly promoted to allow inner city youth and poor young men from rural areas (New Standards Men) to join the military service as part of their climb out of poverty, it was eventually criticized for making them a significant segment of the combat personnel fighting in the Republic of Vietnam. DISCUSSION: 1. The applicant served in the Republic of Vietnam where he received the Combat Infantryman Badge and was advanced to SPC/E-4. His service medical record shows medical personnel noted he stated that he witnessed Soldiers being wounded and killed during enemy contact. Medical personnel noted he stated the enemy contact caused him to have sleeping problems, nightmares, and nervousness. 2. The applicant contends the nervousness and his family problems caused him to go AWOL. His record is void of any serious misconduct during his period of service and the misconduct of going AWOL appears to have been isolated events that were the result of an uncharacteristic lapse in judgement. The evidence confirms he went AWOL on several occasions after returning from Vietnam. 3. The applicant 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 discharge proceedings were conducted in accordance with law and regulations in effect at the time. The characterization of his service was commensurate with the reason for his discharge and overall record of military service in accordance with the governing regulations in effect at the time. 5. At the time of the applicant's discharge, PTSD and other associated mental health conditions were largely unrecognized by the medical community and DoD. However, both the medical community and DoD now have a more thorough understanding of mental health conditions and there 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 symptoms and other mental health disorders, who 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 medical advisory opinion shows the applicant had a mitigating behavioral health condition (anxiety disorder/PTSD) concluding there is sufficient medical evidence to support the applicant's contentions regarding his mental health considerations. PSTD is often associated with avoidant behaviors such as going AWOL. The advising psychologist found there is a likely nexus between the applicant's behavioral health conduction and the offenses that led to his discharge from the Army. 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. 9. As the basis for the applicant’s reduction to the lowest enlisted grade was the characterization of service he received, a recommendation to upgrade the applicant’s discharge to general or honorable should include restoration of his rank. //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) AR20160010835 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2