IN THE CASE OF: BOARD DATE: 15 November 2017 DOCKET NUMBER: AR20170005786 BOARD VOTE: ___x____ ___x____ ____x___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 15 November 2017 DOCKET NUMBER: AR20170005786 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 to reflect affirmation of his general discharge under honorable conditions in accordance with the Department of Defense Special Discharge Review Program. __________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. IN THE CASE OF: BOARD DATE: 15 November 2017 DOCKET NUMBER: AR20170005786 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, in effect, correction of his records to reflect affirmation of his general discharge under honorable conditions in accordance with the Department of Defense (DOD) Special Discharge Review Program (SDRP). 2. The applicant states after serving in Vietnam he came home with post-traumatic stress disorder (PTSD). He was treated in a Department of Veterans Affairs (VA) hospital and feels his application should be considered because other troops are getting their discharges upgraded. 3. The applicant provides: * Standard Form 507 (Clinical Record), dated 7 July 1995 * VA Form 10-7978M (Medical Record – Discharge Instructions), dated 12 September 1995 * St. Mary's Hospital Discharge and Aftercare Plan, dated 26 December 2006 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the Regular Army on 8 September 1967. 2. His records contain numerous DA Forms 2627-1 (Summarized Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) showing he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ on the following dates for the following offenses: * 5 October 1967 for being absent without leave (AWOL) from his unit at Fort Dix, NJ, from 1 October 1967 through 2 October 1967 * 17 October 1967 for being AWOL from his unit at Fort Dix, NJ, from 14 October 1967 through 16 October 1967 3. His DA Form 20 (Enlisted Qualification Record) shows he served in Vietnam from on or about 5 July 1968 through on or about 13 July 1969. He participated in four campaigns during this period. 4. DA Forms 2627-1 show he accepted NJP under the provisions of Article 15 of the UCMJ on the following dates for the following offenses while serving in Vietnam: * 5 January 1969 for being absent from morning formation on 4 January 1969 * 22 March 1969 for assaulting unidentified Vietnamese civilians by striking them with BBs he fired from an air rifle on 13 March 1969 5. Headquarters Special Troops Summary Court-Martial Order Number 1150, dated 8 November 1969, shows he was arraigned and tried before a summary court-martial which convened at Fort Dix, NJ, on 4 November 1969. He was charged with and found guilty of being AWOL from his unit at Fort Dix, NJ, from on or about 25 August 1969 through on or about 13 October 1969, and failing to go to mandatory formation without authority on or about 27 October 1969. He was sentenced to forfeiture of $75.00 for 1 month and restriction to the Special Processing Detachment for 30 days. 6. DA Forms 2627-1 show he again accepted NJP under the provisions of Article 15 of the UCMJ on the following dates for the following offenses: * 5 December 1969 for being AWOL from his unit at Fort Knox, KY, from 2 December 1969 through 4 December 1969 * 14 January 1970 for being AWOL from his unit at Fort Knox, KY, from 3 January 1970 through 10 January 1970 7. His records contain a DD Form 458 (Charge Sheet), dated 28 April 1970, showing he was charged with three specifications of being AWOL from his unit at Fort Knox, KY, from 2 February 1970 through 23 February 1970, from 26 February 1970 through 13 March 1970, and from 17 March 1970 through 13 April 1970. He was also charged with having knowledge of and failing to obey a lawful travel order on 24 February 1970 at Fort Dix, NJ. 8. On 13 April 1970, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation  635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He consulted with 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 a discharge under other than honorable conditions (UOTHC), and the procedures and rights available to him. He elected not to submit statements in his own behalf. 9. On 8 May 1970, the separation authority approved his request for discharge and directed the issuance of an Undesirable Discharge Certificate. 10. On 12 June 1970, he was discharged accordingly. His DD Form 214 (Report of Separation from Active Duty) shows he completed 2 years, 5 months, and 5 days of total active service with 122 days of lost time due to being AWOL. His service was characterized as UOTHC at that time. 11. There is no evidence in his military record showing he was diagnosed with or treated for any mental or behavioral health conditions during his period of service. 12. A letter from the Office of the Adjutant General and the Adjutant General Center to the applicant, dated 28 March 1978, states the Army Discharge Review Board (ADRB) reviewed his discharge UOTHC on 7 March 1978 per the Secretary of the Army directive. The ADRB upgraded his discharge to general under honorable conditions. 13. A letter from the Office of the Adjutant General, Reserve Components Personnel and Administration Center, to the applicant, dated 28 March 1978, states: a. The ADRB upgraded his discharge following his application for review under the DOD SDRP. b. Public Law 95-126, which became effective 8 October 1977, required the establishment of new uniform standards and procedures for review of discharges UOTHC. This law forbids the VA from granting most benefits which are based upon an upgraded discharge under any special program. The VA may nevertheless provide medical care to a veteran if a disability requiring care either happened or was made worse while a person was in the line of duty on active military service. c. In order to help get upgraded discharges and VA benefits together, the ADRB must re-review the discharges which were upgraded under the DOD SDRP. 14. A letter from the Office of the Adjutant General and the Adjutant General Center to the applicant, dated 6 December 1978, states the previous upgrading of his discharge was re-reviewed by the ADRB as required by Public Law  95-126. As a result of this review, the ADRB determined he did not qualify for upgrading under the new uniform standards for discharge review. Accordingly, his upgraded discharge under the DOD SDRP was not affirmed. A DD Form 215 (Correction to DD Form 214) was enclosed, reflecting the appropriate change in his military records. He was advised the DD Form 215 in no way changed or modified the upgraded discharge he previously received. However, because of the new law, he would not be able to use that discharge to qualify for benefits under the VA. 15. His DD Form 214 shows his discharge was upgraded to general under honorable conditions on 7 March 1978 in accordance with the SDRP. His DD Form 215 shows his discharge was reviewed under the provisions of Public Law 95-126 and a determination was made that recharacterization was warranted under the provisions of DOD SDRP. 16. The applicant provided three medical documents. a. The Standard Form 507, dated 7 July 1995, shows he was admitted to the hospital on 2 July 1995 and discharged on 8 July 1995. He was diagnosed with adjustment disorder with mixed emotional features and PTSD, and his prognosis was listed as fair. b. The VA Form 10-7978M, dated 12 September 1995, shows he was admitted to the hospital on 1 August 1995 and discharged on 15 September 1995. He diagnosed with chronic PTSD. He was treated with medication, to include Zoloft (sertraline), and deemed unemployable. c. The St. Mary's Hospital Discharge and Aftercare Plan, dated 26 December 2006, shows he was admitted to the hospital on an unspecified date and released on 26 December 2006. He was diagnosed under Diagnostic and Statistical Manual of Mental Disorders (DSM) III numerical diagnosis code 291.8 (uncomplicated alcohol withdrawal) and code 304.40 (amphetamine or similarly acting sympathomimetic dependence). He was prescribed lisinopril, Zyprexa (olanzapine), Remeron (mirtazapine), Lexapro (escitalopram), and Klonopin (clonazepam) as part of his treatment. 17. The Army Review Boards Agency Medical Advisor/Psychiatrist provided an advisory opinion on 11 September 2017, which states: a. The applicant's VA records indicate he received a 100-percent service- connected disability rating for chronic PTSD. He is currently receiving both psychotherapeutic treatment and psychopharmacologic treatment from the VA for this condition. b. The applicant's military records contain no documentation of any PTSD symptoms or behaviors. There is no documentation of any behavioral health visits, receiving psychiatric medication, undergoing psychiatric hospitalization, or receiving any duty limiting psychiatric physical profiles. c. There is no evidence to indicate the applicant failed to meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness) while he was serving on active duty. d. After reviewing all the available information in accordance with the Secretary of Defense memorandum, dated 3 September 2014, it is the medical opinion of the ARBA Psychiatrist that the applicant developed PTSD while serving on active duty as a result of his combat experiences in the Republic of Vietnam. e. The applicant's diagnosis of service-related PTSD was found to mitigate the applicant's misconduct of being AWOL on multiple occasions and failing to go to his assigned duty location. As PTSD is associated with avoidance behaviors, there is likely a nexus between his PTSD diagnosis and those offenses. The diagnosis of PTSD is not mitigating for the offense of assaulting civilian Vietnamese by shooting at them with a BB gun. 18. The applicant was provided a copy of the advisory opinion on 13 September 2017 and given an opportunity to submit comments or a rebuttal. He did not respond. REFERENCES: 1. The DOD SDRP was established by a memorandum from the then Secretary of Defense, dated 4 April 1977 that mandated the upgrade of individual discharges in which the applicant met one of several specified criteria and when the separation was not based on a specified compelling reason to the contrary. a. The ADRB had no discretion in such cases other than to decide whether recharacterization to fully honorable as opposed to a general discharge was warranted in a particular case. An individual who had received a punitive discharge was not eligible for consideration under the DOD SDRP. Absentees who returned to military control under the program were eligible for consideration after they were processed for separation. b. Individuals could have their discharges upgraded if they met any one of the following criteria: were wounded in action, received a military decoration other than a service medal, successfully completed an assignment in Southeast Asia, completed alternate service, received an honorable discharge from a previous tour of military service, or completed alternate service or were excused from completing alternate service in accordance with Presidential Proclamation  4313 of 16 September 1974. c. Compelling reasons to deny discharge upgrades were desertion/AWOL in or from the combat area, discharge based on a violent act of misconduct, discharge based on cowardice or misbehavior before the enemy, or discharge based on an act or misconduct that would be subject to criminal prosecution under civil law. 2. Public Law 95-126 provided in pertinent part for a "Relook Program." All cases upgraded from UOTHC under the DOD SDRP or the extension to Presidential Proclamation 4313 had to be relooked and affirmed or not affirmed under uniform standards. Two of the principal features of Public Law 95-126 were: (1) the addition of 180 days of continuous unauthorized absence to other reasons (e.g., conscientious objector, deserters) for discharge which act as a specific bar to eligibility for VA benefits. Such absence must have been the basis for a UOTHC discharge and was computed without regard to expiration term of service; and (2) prospective disqualification for receipt of VA benefits for those originally qualifying as a result of upgrade by Presidential Memorandum of 19 January 1977 or the DOD SDRP, unless an eligibility determination was made under the published uniform standards and procedures. 3. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10, in effect at the time, provided that a member who had committed an offense or offenses for which the authorized sentence included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial. The request could be submitted at any time after charges were preferred. A discharge UOTHC was normally appropriate for a Soldier who was discharged in lieu of trial by court-martial. However, the separation authority could direct a general discharge if such were merited by the Soldier's overall record during the current enlistment. b. 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. 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. 4. The 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. In 1980, the APA added 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." 5. 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. 6. 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. 7. 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 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 also acknowledged that in some cases this undiagnosed condition of PTSD may have been a mitigating factor in the Soldiers' misconduct that 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. 8. On 3 September 2014 in view of the foregoing information, 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. 9. Board for Correction of Military/Naval Records (BCM/NR) 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? 10. 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. 11. 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. DISCUSSION: 1. The applicant was discharged under the provisions of Army Regulation  635-200, chapter 10. Discharges under the provisions of chapter 10 are voluntary requests for discharge from the Army to avoid trial by court-martial. The evidence shows he accepted NJP on six occasions for being AWOL four times, for missing formation once, and for assaulting Vietnamese civilians using a BB gun. He also received a special court-martial conviction for being AWOL and accumulated 122 days of lost time during his service. These are offenses punishable under the UCMJ that could have resulted in a punitive discharge. 2. He consulted with counsel and was advised of the basis for the contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ. Subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial. 3. The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were met, and his rights were fully protected throughout the separation process. 4. In accordance with the DOD SDRP, the ADRB reviewed his discharge UOTHC on 7 March 1978 and upgraded his discharge to general under honorable conditions. Subsequent to the upgrading of his discharge, the ADRB again reviewed his discharge in accordance with Public Law 95-126 and did not affirm the decision to upgrade. 5. The consequence of the non-affirmation did not change or modify the upgraded discharge he previously received. However, because of Public Law 95-126, he would not be able to use that discharge to qualify for benefits under the VA. 6. There is no evidence of record showing he was ever diagnosed with or treated for PTSD or any other mental or behavioral health condition during his military service. However, there is sufficient evidence that he was both diagnosed with and treated for service-connected PTSD subsequent to his discharge. 7. At the time of his 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. 8. It is the medical opinion of the ARBA psychiatrist that the applicant developed PTSD while serving on active duty as a result of his combat experiences in the Republic of Vietnam. The applicant's diagnosis of service-related PTSD was found to mitigate his misconduct of being AWOL on multiple occasions and failing to go to his assigned duty location. As PTSD is associated with avoidance behaviors, there is likely a nexus between his PTSD diagnosis and those offenses. The diagnosis of PTSD is not mitigating for the offense of assaulting civilian Vietnamese by shooting at them with a BB gun. 9. By current standards laid out by the Secretary of Defense on 3 September 2014, Service DRBs and Service BCM/NRs are directed 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. 10. Current discharge upgrades from UOTHC to general under honorable conditions in accordance with these aforementioned current standards based on a diagnosis of PTSD do not require affirmation to enable the veteran to qualify for VA benefits. This was not the case with the applicant's upgraded discharge, the non-affirmation of which effectively disenfranchised him from reaping the full benefits of the discharge upgrade he received due to the more stringent standards required for affirmation that are no longer adhered to. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170005786 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170005786 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2