ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 29 March 2019 DOCKET NUMBER: AR20160015650 APPLICANT REQUESTS: his under other than honorable conditions (UOTHC) characterization of service be upgraded to an under honorable conditions discharge (General Discharge Certificate). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for Review of Discharge or Dismissal from the Armed Forces of the United States) in lieu of DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 14 December 1973 * State of Illinois, Department of Veterans’ Affairs Claim Form, dated 26 August 2016 * Note from applicant dated 6 February 2017 * Two character reference letters * Medical records (Civilian) – 107 pages FACTS: 1. The applicant did not file within the 3 year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 submit his application stating he returned from the Republic of Vietnam with psychological issues and that is why he went absent without leave (AWOL) for 349 days. He turned himself in. He suffered from memories of his service in Vietnam and could not remain [at his duty station]. He just could not stay. He felt betrayed by his fellow countryman who called him a "baby killer." 3. The applicant enlisted in the Regular Army on 10 August 1971. While in a training status the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for breaking restriction on 4 September and 12 September 1971. 4. He completed his training as an Infantryman and deployed to the Republic of Vietnam effective 7 January 1972. He served there with Company C, 7th Battalion, 17th Calvary until on or about 5 September 1972. He was transferred to the continental United States with duty at Fort Carson, Colorado effective on or about 5 September 1972. He attained the rank of private first class (PFC)/pay grade E-3; however, the date of rank to PFC is not recorded on his DA Form 20 (Enlisted Qualification Record). 5. On 7 December 1972, he went AWOL from his unit at Fort Carson, Colorado. He returned to military control at Fort Leonard Wood, Missouri on 21 November 1973. 6. On 28 November 1972 his commanding officer preferred court-martial charges against him for one specification of being AWOL from 7 December 1972 to 21 November 1973 from Fort Carson, Colorado. 7. On 29 November 1973, the applicant underwent a physical examination in preparation for his potential separation from active duty. He was found qualified for retention or separation in accordance with Army Regulation 40-501 (Standards of Medical Fitness). 8. On 3 December 1973, the applicant consulted with counsel (a Judge Advocate General’s Corps officer). He was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or dishonorable discharge. Subsequent to receiving counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 (Discharge for the Good of the Service), Army Regulation 635-200 (Enlisted Personnel – Enlisted Separations). He elected to submit statements in his own behalf and acknowledged/understood: * he had not been subjected to any coercion whatsoever by any person * if his discharge request was accepted, he could be discharged UOTHC * as a result of the issuance of a UOTHC discharge he could be deprived of many or all Army benefits * he could be ineligible for many or all benefits administered by the Veterans Administration (VA) * he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he could expect to encounter substantial prejudice in civilian life 9. Concurrently with his request for discharge, he also prepared a separate statement wherein he stated he wanted out of the U.S. Army because he could not take the system any more since his return from Vietnam. At the time of his AWOL, he was using dope. He also had personal problems at home with his wife because she was pregnant with their first child. Her father had died and she was alone because her mother lived in Puerto Rico. As she was pregnant, he could not leave her alone for he worried about her. In October they had the baby and he realized he needed to return to the Army and turn himself in. He asked the approval authority to release him from active duty so he could return to his family. 10. On 13 December 1973, the separation authority approved the applicant's request for discharge, directed his reduction in grade to private (PV1)/E-1, as well as the issuance of an Undesirable Discharge Certificate. 11. On 14 December 1973, he signed a statement attesting to the fact there had been no changes in his medical condition since his separation physical. 12. On 14 December 1973, he was discharged accordingly. His DD Form 214 reflects the following information: * item 5a (Grade, Rate or Rank) – Private (PV1) * item 5b (Pay Grade) – E1 * item 6 (Date of Rank) – 13 December 1973 * item 24 (Character of Service) – UOTHC * item 11c (Separation Authority) – Army Regulation 635-200 – for the good of the service, Separation Program Number (SPN) 246 * item 26a (Non-Pay Periods Time Lost) – 7 December 1972 to 20 November 1973 13. There is no evidence the applicant applied to the Army Discharge Review Board within its statutory limitations. 14. On 15 November 2016, the Army Review Boards Agency (ARBA) Case Management Division sent the applicant a letter requesting he provide medical documents to support his current mental health issues and physical condition. He responded by providing civilian medical records attesting to the fact he has diabetes mellitus and heart disease. Within the records he provided there is no mention or history of a mitigating psychiatric disorder such as post-traumatic stress disorder (PTSD) or traumatic brain injury. 15. In addition to the medical evidence, the applicant provided two character reference letters attesting to his good standing and citizenship within his church and local community. He is still married to his wife of 45 years and they have raised five children together and are currently assisting with raising their grandchildren. The note from the State of Illinois, Department of Veterans’ Affairs shows they assisted the applicant in processing his application to this Board. 16. On 24 April 2017, the ARBA psychologist provided an advisory opinion. The advisory found the available documentation showed the applicant met medical retention standards for all medical conditions and there was no indication for physical disability evaluation system processing. There is no available evidence supporting a change to his narrative reason for separation as he did not provide any evidence show he was diagnosed with PTSD or other behavioral health condition based on his service in the Republic of Vietnam. A copy of the complete medical advisory was provided to the Board for their review and consideration. 17. The applicant was provided a copy of the advisory opinion on 25 April 2017 and given an opportunity to submit comments. He did not respond. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s contentions, medical concerns, letters of support, and the medical advisory opinion were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. The Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. There was no evidence provided that shows he was diagnosed with a medical condition during his period of service that may have contributed to his misconduct. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : X :X :X DENY APPLICATION 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, 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. 2. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-14 states when a Soldier is to be discharged under other than honorable conditions; the separation authority will direct an immediate reduction to the lowest enlisted grade. b. Paragraph 3-7a states an honorable discharge is given when the quality of the Soldier’s service had generally met standards of acceptable conduct and duty performance. c. Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. d. Chapter 5, Section II (Secretarial Authority), states the separation of enlisted personnel for the convenience of the government is the prerogative of the Secretary of the Army. e. Chapter 10 provided a member who had committed an offense or offenses for which the authorized punishment includes a punitive discharge could submit a request for discharge, in lieu of trial by court-martial, at any time after the charges had been preferred. The Soldier's request was to include an acknowledgement that he/she understood the elements of the offense(s) and was guilty of the charge(s), or of a lesser-included offense. A discharge under other than honorable conditions was normally considered appropriate 3. Army Regulation 635-5-1 (Separation Program Designators (SPD)) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service and the separation designator codes to be used for the stated reasons. * SPD KFF is the current code for use directed by the service secretary under the provisions of Army Regulation, Chapter 5, Section Il * SPN 246 was the code used for enlisted personnel separating under the provision of Army Regulation, Chapter 10 4. Army Regulation 635-5 (Separation Documents), in effect at the time, established standardized policy for preparing and distributing the DD Form 214. This regulation stated the purpose of the separation document was to provide the individual with documentary evidence of his or her military service at the time of release from active duty, retirement, or discharge. It is important that information entered on the form is complete and accurate and reflects the conditions as they existed at the time of separation. The instructions stated to use the DA Form 20 and orders to verify the entries on the DD Form 214. 5. 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 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." 6. 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. 7. The 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 includes 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. 8. 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, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable condition 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. 9. 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 post-traumatic stress syndrome; 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160015650 2 1