BOARD DATE: 31 October 2017 DOCKET NUMBER: AR20160010848 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: 31 October 2017 DOCKET NUMBER: AR20160010848 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the Army Board for Correction of Military Records set forth in Docket Number AR20070009231 on 13 December 2007. __________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: 31 October 2017 DOCKET NUMBER: AR20160010848 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests reconsideration of his previous request for an upgrade of his undesirable discharge to an honorable discharge. 2. The applicant states: a. His request is based on new supplemental guidance from the Secretary of Defense to Military Boards for Correction of Military Records (BCMR)/Naval Records (NR) as detailed in a Department of Defense (DOD) memorandum dated 24 February 2016. He was discharged with less than honorable service. He was not discharged for his service record; he was discharged for his civilian criminal arrest. b. As a young man, he had one minor infraction with the local police wherein he was picked up for disorderly conduct. Otherwise, he was a typical teenager of that era. Even though he was eligible for the draft at the start of the Vietnam War in 1965, he decided to enlist in the Army for 3 years instead of the 2 year draft term. He felt it was the correct thing to do, to enlist, and serve his country. c. He graduated from artillery training in military occupational specialty (MOS) 13A (Field Artillery Basic). When he reported to basic jump school at Fort Benning, GA, he was told one of his examination scores was below the cut-off for the training. He was very disappointed, frustrated, and upset about this turn of events. He was assigned to the Overseas Replacement Unit at Fort Benning for 5 months. While there, he was issued a 3-day pass with others from his unit. When it was time to return to Fort Benning, he was left behind by the others and this resulted in him returning to post late. He received an Article 15 for this mistake. d. During his service in Vietnam, he was under constant and relentless enemy fire from artillery, mortars, rifle fire, and sniper fire, etc. On more than one occasion they were subjected to enemy fire from very close range, to the point of almost having their fire base overrun by the enemy. He was constantly assigned to encase dead Soldiers in black plastic body bags, stack them up at the temporary helicopter landing areas, and to load the bodies on the medical evacuation helicopter after assisting the wounded, injured, and other Soldiers who were required to be airlifted for medical care. The longer he was in country, it appeared the wounded and dead Soldiers were increasing in numbers. e. Several times due to incoming artillery, he was knocked to the ground and hit in the head by solid objects, cannon supports, ammunition/shell storage boxes, and large trucks, etc. He received medical aid and would return to work. At night, he tripped and fell several times, hitting his head on the ground. Traumatic brain injury (TBI) would prove to haunt him for the remainder of his life. f. Visions of dead Soldiers never left his mind or his dreams. When his unit traveled throughout their area of responsibility they always traveled with the combat engineers. The enemy was constantly laying land mines and booby traps for them. They were also the subject of ambushes when moving their fire bases into their area of responsibility. In Vietnam, he was exposed constantly for 13 months to continued spraying of Agent Orange and other poisons. He suffered with breathing and vision problems, rashes, hearing loss, tinnitus, stomach ulcers, and mental health disturbances that he could not deal with or identify. g. He finally received orders to return to the United States and he went home to see his family and friends. While at home, he felt odd and uncomfortable. He was discontent with everyone around him. He was unable to tell his family and friends of all the things he had experienced. He found that alcohol and drugs numbed his pain and eased his suffering. He was suffering from TBI, post-traumatic stress disorder (PTSD), and all of the aforementioned issues. At that time, PTSD was not recognized. He had no medical or psychiatric options, counseling, or support groups, etc. He was expected to deal with all of his problems, suck it up, and continue to be a good Soldier. h. Upon completion of his leave, he was assigned to Fort Hood, TX, and a new artillery battery. He was there for several months and then returned home on leave. While at home, he began using volumes of alcohol and every type of street drug he could buy. The next thing he knew was he had turned his life into a total wreck. His Army personnel record lists him as a deserter. He was not a deserter; he was in a civilian jail. Therefore, it was obvious he could not return to his unit after his leave was over. i. During his period of service, he received regular promotions. While he was sitting in jail, he received some paperwork from the Army; however, he did not know what the material meant or what he was supposed to do. Sometime later he received his discharge papers in the mail. He was very young and damaged during his period of military service. He had one minor arrest as a 20 year old. It has taken many years of mistakes in his life and prison confinement to get himself together and become a good man. j. He is currently 71 years of age and eligible for geriatric parole due to his medical and mental health issues. His 13 months in Vietnam left him damaged and injured. He needs Department of Veterans Affairs (VA) health care benefits and compensation when he is paroled. 3. The applicant provides the DOD memorandum and a letter from the Army Review Boards Agency (ARBA). CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABMCR) in Docket Number AR20070009231 on 13 December 2007. 2. Based on the applicant's claim that he has PTSD, his application is being reviewed under the 2014 Secretary of Defense's guidance to Military BCMR/NR. 3. He enlisted in the Regular Army on 6 July 1965, for 3 years. At the time of his enlistment, he was 20 years of age. He held MOS 13A. 4. On 11 December 1965, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) from 5 to 10 December 1965. His punishment consisted of a forfeiture of $20 pay and restriction for 7 days. 5. He was promoted to E-4 on 30 December 1966. 6. He served in Vietnam from 2 February 1966 to 3 February 1967 with Battery C, 2nd Battalion, 33rd Artillery, 1st Infantry Division. 7. Following completion of his Vietnam tour, he was reassigned to the 4th Battalion, 3rd Artillery, Fort Hood, TX. 8. He was reported in an AWOL status on 18 July 1967 and dropped from Army rolls on 17 August 1967. 9. His records contain a DA Form 19-32 (Military Police Report), dated 28 April 1968, stating he was sentenced to a term of 6 to 10-years in the New Jersey State Prison for a civil charge of assault with intent to rape. 10. On 2 May 1968, the Assistant Judge Advocate contacted the New Jersey State Prison for information on the applicant's detention and disposition in order to determine whether or not the applicant would be retained in the service. 11. It was determined the applicant was arrested on 17 August 1968 and sentenced to a term of 6 to 10 years in prison for assault with intent to rape. 12. On 10 May 1968, the applicant's company commander recommended the applicant be discharged under the provisions of Army Regulation (AR) 635-206 (Personnel Separations – Discharge – Misconduct), with an undesirable discharge. The company commander stated the applicant was arrested on 17 August 1968 and sentenced to a term of 6 to 10 years in prison for assault with intent to rape. 13. His record is void of the complete facts and circumstances surrounding his discharge; however, his record contains a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) showing he was discharged in pay grade E-1 on 27 July 1968, under the provisions of AR 635-206, with separation program number (SPN) 284. This form shows he was credited with 2 years and 7 days of active service and time lost from 5 to 9 December 1965, 18 July to 16 August 1967, and 17 August 1967 to 26 July 1968. His character of service was under other than honorable conditions and he was issued an Undesirable Discharge Certificate. 14. His military service record is void of any medical records. 15. There is no indication he petitioned the Army Discharge Review Board within that board’s 15-year statute of limitations for an upgrade of his discharge. 16. On 13 December 2007, the ABCMR denied his petition for an upgrade of his discharge. 17. On 22 June 2017, an advisory opinion was provided by the Clinical Psychologist, ARBA. This psychologist referenced the Diagnostic and Statistical Manual (DSM), 5th Edition; AR 40-501 (Standards of Medical Fitness), dated 4 August 2011; and AR 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations), dated 6 September 2011. The ARBA psychologist reiterated the applicant's period of military service, Vietnam deployment, and post-service status. The ARBA psychologist stated: a. The Armed Forces Health Longitudinal Technology Application records were not reviewed as the system was not in service during the applicant's time of service. The electronic VA medical record contained no information regarding the applicant. He submitted no civilian medical documentation. His military records indicated no psychiatric illness, no documentation of PTSD symptoms or PTSD diagnosis, and no other behavior health symptoms or diagnosis. There was also no documentation of TBI and/or TBI symptoms or diagnosis. Additionally, there was no indication that he failed to meet military medical retention standards in accordance with AR 40-501. b. Based on the available information, the ARBA psychologist opined there was insufficient evidence to support the applicant's contention that his under other than honorable conditions discharge was due to undiagnosed PTSD and TBI. 18. The advisory opinion was provided to the applicant on 27 June 2017 for acknowledgement/rebuttal. He did not respond. REFERENCES: 1. AR 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel for misconduct. The regulation provided for the separation of personnel for conviction by civil court. An Undesirable Discharge Certificate was normally considered appropriate. 2. AR 635-200 set forth the basic authority for separation of enlisted personnel. The regulation states in: a. Paragraph 3-7a – an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. b. Paragraph 3-7b – a general discharge was a separation from the Army under honorable condition. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 3. AR 635-5-1 (Separation Program Designator (SPD) Codes), currently in effect, provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. At the time of the applicant's discharge, the SPN was designated for use for the same reason. The SPN of "284" applied to persons who were discharged for "conviction by a civil court." 4. On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards and Service BCMR/NR to carefully considered the revised PTSD criteria, detailed medical consideration, and mitigating factors when taking actions on applications from former service members administratively discharged and who had 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. In these cases, PTSD was not recognized as a diagnosis at the time of service and, in many cases, diagnoses were not made until decades after service was completed. Quite often, however, the records of service members who served before PTSD was recognized, including those who served in the Vietnam theater, do not contain substantive information concerning medical conditions in either Service treatment records or personnel records. Liberal consideration would also be given in cases where civilian providers confer diagnoses of PTSD or PTSD-related conditions, when case records contained narratives that supported symptomatology at the time of service, or when any other evidence which could reasonably indicate PTSD or a PTSD-related disorder existed at the time of discharge which might had mitigated the misconduct that caused the under other than honorable condition characterization of service. 5. 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; 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 to 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 record is void of the complete facts and circumstances surrounding his discharge. The available evidence shows he was discharged based on his civilian conviction, under the provisions of AR 635-206, with the issuance of an Undesirable Discharge Certificate. 2. He was 20 years of age at the time of his initial enlistment and over 23 years of age at the time of his civil conviction. There is no evidence he was any less mature than other Soldiers of the same age who honorably completed their terms of service or that his actions were a result of his age. 3. His record is void of evidence showing he was diagnosed with PTSD during his period of military service. There is no evidence to support his contention that PTSD prevented his satisfactory completion of his enlistment. 4. In the absence of evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights. The characterization of service he received was commensurate with the reason for his 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) AR20160010848 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160010848 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2