ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 January 2019 DOCKET NUMBER: AR20160014116 APPLICANT REQUESTS: * an upgrade of his discharge to honorable * correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show the name he used while serving on active duty * a personal appearance before the board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Self-authored letter * DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, in effect: a. He served under the name J___ A. H___, Jr. during his period of active duty. b. He was drafted before he could go back to college, so instead of getting his college education, he was sent to Basic Combat Training. c. Since the beginning of his military career he was judged by the color of his skin and not his performance. There was hate in the ranks and his character was tainted on the battlefield. He still has sleepless nights about the continuous combat engagements and the blood of battle. d. While serving in Vietnam he was exposed to Agent Orange and even now he has flashbacks. As a result of his Vietnam service, he suffers from post-traumatic stress disorder (PTSD) and a brain injury. e. The Department of Defense (DOD) is a system of plagiarism (sic) toward the American veteran and a system that is diluted with injustice. It is broken and should be immediately repaired. f. It has been 44 years since he was discharged and 15 years since he applied for an upgrade of his discharge. He continues to be denied his freedom of speech. Further, the DOD thinks he is a criminal. He questions if there is an end to the madness and injustice upon veterans? 3. A review of the applicant’s service records shows: a. On 15 September 1969, he enlisted in the Regular Army. His name is shown as J___ A____ H___, Jr., on his DD Form 4 (Enlistment Contract-Armed Forces of the United States). b. The name listed on the applicant's enlistment contract is the same name found throughout his military records. c. On 3 June 1971, he was assigned to Vietnam and he performed the duties of an armor crewman assigned to an armor unit. His conduct and efficiency ratings were all excellent from his entry on active duty until he was reassigned to an infantry unit on 16 October 1971. d. On 21 November 1971, he was convicted by a special court-martial of disobeying the lawful order of his superior commissioned officer. e. Additional court-martial charges were preferred on 23 February 1972. His Charge Sheet indicates he was charged with one specification of disobeying the lawful order of his superior commissioned officer to report to the unit's defensive night position and one specification of wrongfully appropriating a cargo carrier, the property of the U. S. Army, valued at $32,022.00. f. He consulted with counsel on 11 March 1972 and subsequently requested discharge under the provision of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service). In his request, he acknowledged: * the maximum punishment * if his discharge was approved, he could be discharged under other than honorable conditions * he would be deprived of many or all Army benefits and that he may be ineligible for many or all benefits administered by the Veterans Administration and benefits as a veteran under both Federal and State law g. On 18 March 1972, the separation authority approved the applicant’s request for discharge and directed the issuance of an Undesirable Discharge Certificate. h. On 28 March 1972, he was discharged from active duty accordingly. He completed 2 years, 5 months, and 13 days of active service with 31 days lost. i. Per regulatory guidance, the applicant's full name is listed on his DD Form 214. j. His record is void of any medical documentation showing he sustained or was treated for a head injury while serving in Vietnam. There is also no record of any behavioral health symptoms or diagnoses. k. On 5 June 1973, the Army Discharge Review Board denied his request to upgrade his discharge. 4. On 23 June 2003, a certified substance abuse counselor at the Crossroads Community Service, Farmville, VA, evaluated the applicant and diagnosed him with PTSD, alcohol dependency, and recurrent major depressive disorder with psychotic features. 5. The Army Review Boards Agency's psychiatrist provided an advisory opinion on 20 September 2018. After a thorough review of the applicant's available medical history, the medical advisor found: a. The applicant’s military records indicate that he did meet medical retention standards in accordance with AR 40-501 (Medical Services-Standards of Medical Fitness). b. The applicant's diagnoses of PTSD and a psychotic disorder, not otherwise specified (based on a history of paranoia and auditory hallucinations), are mitigating for the misconduct that resulted in his under other than honorable discharge. As PTSD is associated with oppositionality and difficulty with authority figures, there is a nexus between his PTSD and his two offenses of failing to obey a lawful order. While PTSD does not usually mitigate offenses such as misappropriating a government vehicle, in this case the combination of PTSD and psychosis impaired the applicant's judgment and rendered him more impulsive and suggestible, both factors which played a significate role in misappropriation of a government vehicle. c. In accordance with the 3 September 2014 Secretary of Defense Liberal Guidance Memorandum, the applicant's military records do support the existence of PTSD and a psychotic disorder at the time of discharge. 6. The advisory opinion was forwarded to the applicant for consideration. He did not respond. 7. 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. 8. In reaching its determination, the Board should also consider the applicant’s petition, his post-service medical treatment, and his service record in accordance with the published equity, injustice, or clemency determination guidance. 9. AR 15-185 (ABCMR) states an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABMCR. BOARD DISCUSSION: After reviewing the application and all supporting documents, including the applicant’s statement, the Board found relief was warranted. Based upon the medical advisory and recent guidance involving discharge upgrades, the Board came to the following recommendation: Grant upgrading his discharge to general under honorable conditions. The Board found that the name on the applicant’s DD214 was the same name found on all existing documents, including his enlistment contract. For that reason, the Board determined no injustice or correction was warranted involving the name change request. deny name change requested. The applicant should be made aware that a record of these proceedings will be placed in his Official Military Personnel File (OMPF) to assist in explaining the difference in his current name from the name in which he served. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 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 a DD Form 214 showing his characterization of service as general, under honorable conditions. The Board also found that no correction or injustice involving the requested name change was warranted. Therefore, the Board denied the portion of the application relating to changing the name on his DD214. ___________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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 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. a. In 1980, the APA added post-traumatic stress disorder (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." b. The fifth edition of the DSM 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 criterion 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, 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 discharges. It is also acknowledged that in some cases this undiagnosed condition of PTSD may have been a mitigating factor in the Soldiers' 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 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. 4. 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 applicants' service. 5. 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. 6. 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, 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. 7. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to DRBs and BCM/NRs regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. 8. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of the above regulation provides that, a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial. A discharge under other than honorable conditions is normally considered appropriate. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 9. Army Regulation (AR) 635-5 (Separation Documents), as in effect at the time, provided detailed instructions for completing separation documents, including the DD Form 214. It states to enter the last name, first name, and full middle name or names, if any. 10. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. ABCMR Record of Proceedings (cont) AR20160014116 5 1