ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for, AR20170010356 1. Reference the attached Army Board for Correction of Military Records Record of Proceedings, dated 23 April 2019, in which the Board members recommended denial of the applicant’s request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by amending his DD Form 214 for the period of service ending 25 December 1970 to reflect a General, under honorable conditions character of service. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 22 September 2019. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: BOARD DATE: 23 April 2019 DOCKET NUMBER: AR20170010356 APPLICANT REQUESTS: through counsel that his under other than honorable conditions (UOTHC) discharge be upgraded to a general, under honorable conditions discharge based on the 3 September 2014 Hagel Memorandum. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Legal Counsel Brief – 20 pages * Army Board for Correction of Military Records (ABCMR) Army Docket Number AR20110005209, dated 6 September 2011 * ABCMR AR20130006344, dated 29 April 2013 * Secretary of Defense Memorandum for Secretaries of the Military Departments (aka The Hagel Memorandum) dated 3 September 2014 * Lead Pastor Character Reference Letter, dated 18 March 2016 * Department of Veterans’ Affairs (VA) Readjustment Counseling Therapist Letters, dated 25 March 2016 and 12 July 2016 * Spouse Character Reference Letter, dated 21 August 2016 * Brother’s Character Reference Letter, dated 3 September 2016 * Chaplain Character Reference Letter, dated 20 September 2016 * Report of Psychological Evaluation [Applicant], dated 21 April 2017 * Article titled, “Symptoms of Post-Traumatic Stress Disorder (PTSD) – PTSD National Center for PTSD,” undated * Article titled, “PTSD and Substance Abuse in Vietnam – PTSD National Center for PTSD,” undated * DA Form 20 (Enlisted Qualification Record) * DA Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 25 December 1970 * Army Regulation 15-185 (ABCMR) FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20110005209 on 6 September 2011. 2. The applicant states on his DD Form 149 that his record is in error and unjust because of the Hagel Memorandum of 3 September 2014. This memorandum told the Secretaries of the Military Departments how to handle discharge upgrade requests from Vietnam Veterans with previously unrecognized PTSD or related conditions. Further, this memorandum states, in effect, that time limitations will be liberally waived for applications covered by this guidance. a. Counsel outlines in his 20-page legal brief that the timeliness of the applicant's application should be waived and that the applicant's request should be granted solely based on the 2014 Hagel Memorandum. He also implied the applicant’s case should be considered by the Board because he has new evidence that was not previously considered by the Board in 2011. The applicant is petitioning the Board because he was recently diagnosed with major depressive disorder and PTSD related conditions. He requests a personal appearance hearing before the Board. b. Counsel outlines the applicant’s military history to include his acceptance of five nonjudicial punishments under the provisions Article 15 of the Uniform Code of Military Justice (UCMJ). He states the applicant was first introduced to drugs (marijuana) when he was stationed in West Germany. When he served in the Republic of Vietnam he was introduced to cocaine, heroin and opium. He admits to his drug use because he thought it was only way he would survive his combat experiences. He states, in effect, the applicant’s commander was complicit as long as no one got into trouble. He realizes drug use is not compatible with military service, but at the time it was widely used by Soldiers in the Republic of Vietnam. Counsel then explains the applicant’s post-service association with substance abuse disorder. As of the date of his application, the applicant has been in recovery for more than 12 years after an extended period of hospitalization for substance abuse disorder. c. During the recovery process, he sought the assistance of the VA through their readjustment counseling program. This is when he expressed his concern that he used drugs in service to cope with the experiences of his service in the Republic of Vietnam. He had two incidents that he vividly remembers. The first is when he witnessed a drug deal gone badly and a Vietnamese civilian was shot in the head. His second experience was he lost his best friend when a U.S. Navy supply boat capsized in a monsoon rainstorm. His friend drowned. His VA counselor questioned whether the applicant suffered from elements of PTSD in the form of survivors' guilt and occasional nightmares. e. After seeking help through the VA, he sought the assistance of a third party who conducted a psychological evaluation during the period from January through February 2017. The third party evaluation was done at the George Mason University Center for Psychological Services which looked at the applicant’s social-emotional functioning including the Structured Diagnostic Interview under the provisions of the Diagnostic and Statistical Manual of Mental Disorders (DSM-V) which is the assessment tool used to diagnose PTSD. The findings were he met the criteria for a past major depressive disorder after the death of his friend in the Republic of Vietnam by endorsing depression and lack of interest. He also did not sleep well endorsing psychomotor retardation and loss of energy from the date of his friend's death to his separation from the Army. He is currently in a major depressive episode with passive suicidal ideation. The psychological evaluators found he did not meet the required criterion for a formal diagnosis of PTSD though he had elements of PTSD. The elements of PTSD were intrusive symptoms (dreams) and avoidance symptoms after witnessing the death of the Vietnamese civilian. He also avoided working on other Navy vessels after the drowning death of his friend. 3. The applicant enlisted in the Regular Army on 27 June 1968. 4. He was assigned to the United States Army Europe (USAREUR) – West Germany on or about 15 November 1968. He served as a construction and utility worker. While in West Germany he received multiple nonjudicial punishments under the provisions of Article 15 of the UMCJ for the following offenses: * on 28 January 1969, for causing a breach of peace by wrongfully engaging in a fist fight with two other Soldiers * on 7 May 1969, for willfully and wrongfully destroying a vehicle window by throwing a brick through the window of a German vehicle * on 8 September 1969, for being absent without leave (AWOL) from 30 August to 2 September 1969 * on 4 December 1969, for failure to go to his appointed place of duty on 3 December 1969 5. On or about 1 March 1970 the applicant departed West Germany en route to his next assignment in the Republic of Vietnam. A review of his DA Form 20 shows he arrived in the Republic of Vietnam on or about 16 April 1970 where he was assigned as a cargo handler for the 402nd Transportation Company (Terminal Transfer). 6. On 10 September 1970, he accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ because he was apprehended based on suspicion of having stolen property of the United States Government and for possession of 0.81 grams of heroin in three plastic bottles. His punishment included reduction to the rank of private (PV2)/pay grade E-2 and forfeiture of $58 per month for one month. 7. On 22 September 1970, Special Orders Number 265 were issued by Headquarters, U.S. Army Support Command, Da Nang, Vietnam. These orders reduced him to PV2/E-2 effective 10 September 1970. 8. The applicant’s separation packet is not filed in his official military personnel file. However, there is Special Orders Number 359, dated 25 December 1970, ordering his discharge from the Regular Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) with the reason cited as "For the Good of the Service [in lieu of trial by court-martial]." His date of discharge was 25 December 1970. 9. In the processing of his discharge he would have been charged with an offense(s) punishable under the UCMJ with a bad conduct discharge or an undesirable discharge. Subsequent to receiving counsel, he would have 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. He would have acknowledged he understood: * that 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 10. On 25 December 1970, he was discharged as per the instructions of Special Orders Number 359. He was issued a DD Form 214 reflecting the following information: * item 5a (Grade, Rate or Rank) – Private (PV1) * item 5b (Pay Grade) – E1 * item 6 (Date of Rank) – 20 December 1970 * item 11c (Separation Authority) – Army Regulation 635-200 – for the good of the service, Separation Program Number (SPN) 246 * item 13a (Character of Service) – UOTHC * item 26a (Non-Pay Periods Time Lost) – 30 August to 1 September 1969 * item 30 (Remarks) – Republic of Vietnam service from 16 April to 25 December 1970 (a period of 8 months and 9 days) 11. There is no evidence the applicant applied to the Army Discharge Review Board within that board’s statute of limitations. 12. On 6 September 2011, the ABCMR denied the applicant’s request to upgrade his UOTHC discharge. The applicant’s premise for application at that time was he did not receive legal counseling during his separation processing. 13. As evidence to support his application, the applicant provided numerous character reference letters from his family, his chaplain and a pastor who all state he has been in recovery and attribute his substance use disorder to his service in the Republic of Vietnam. His brother can recall his conduct prior to joining the military and then his conduct (anger) and abuse of substances upon his return from the Republic of Vietnam. As children they lived a meager life in a low income area. There were seven siblings and his parents who struggled to earn a meager income providing for their large family. Today his pastor and a chaplain state he is involved in Healing Ministries within the church providing outreach to others that are less fortunate. 14. 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 guidance, 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. 15. Through counsel he provides – a. a letter, dated 25 March 2016, from a VA Vet Center counselor who states he worked with the applicant during seven visits from 10 December 2015 to 21 March 2016. Based on his type of discharge characterization, UOTHC, he was advised that the local VA medical center could not provide him medical healthcare services because he was ineligible. Secondly, the clinically relevant concern he had was with his service from April to December 1970 in the Republic of Vietnam where he freely admitted to using drugs to cope with combat stressors. He wondered if the problems he had readjusting to civilian life post service were due to symptoms of PTSD. The counselor stated it is common for war Veterans to use substances as a form of self-medication to treat their anxiety, depression and a myriad of other symptoms which taken in the aggregate can predict PTSD. b. a letter, dated 12 July 2016, from a VA Vet Center operated under the VA states he was seen for treatment. His primary concern was seeking support for his attempts to have his military discharge upgraded to honorable. However, during the sessions the focus would turn to maintenance of abstinence from substance abuse (legal or illegal). He harbors resentment toward the military. Notwithstanding his resentment, the author of the letter again stated the applicant had elements of PTSD emerging in the form of survivors' guilt and occasional nightmares. c. a Report of Psychological Evaluation with its narrative summary completed on 21 April 2017. The applicant was referred by the Mason Veteran and Service Members Legal Clinic associated with the George Mason University Antonin Scalia Law School. The applicant sought their assistance with hopes of securing assistance with benefits administered by the VA. The evaluation was completed during multiple visits and determined the applicant did not have PTSD during his period of service in the Republic of Vietnam or post-service. However, it was found he had symptoms of PTSD including avoidant behaviors and substance abuse. He did meet the DSM-V criteria for another boardable health condition, major depressive disorder both past and current as he was diagnosed with major depression. 16. On 20 July 2017, the Army Review Boards Agency staff psychiatrist 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. At the time of his service in the Republic of Vietnam, his military records and the psychological evaluation do support a PTSD-related diagnosis of major depressive disorder at the time of his separation. She found this diagnosis mitigating for some of the applicant’s offenses but not for all. She attributed his major depressive disorder to the use of heroin which occurred during his service in the Republic of Vietnam. For his infractions of the UCMJ in West Germany to include throwing a brick through a window of a German car, she stated, in effect, they could not be attributable to any form of a PTSD-symptom as he had yet to serve in a combat zone nor had he experienced a tragic event that might have led to PTSD symptoms. The two attributable events did occur in the Republic of Vietnam (witnessing the killing of a Vietnamese civilian and death of a fellow Soldier by drowning). A copy of the complete medical advisory was provided to the Board for their review and consideration. 17. On 24 July 2017, the applicant and his counsel were sent a copy of the psychiatrist’s advisory opinion. On 24 August 2017, counsel responded and argued that the applicant did not have a history of substance abuse disorder until he entered the service which is where and when he encountered illegal substances. Therefore, counsel argues his major depressive disorder occurred earlier than his experiences in the Republic of Vietnam because he used illegal substances and had avoidance behaviors (AWOL) early in his service. Counsel then defines major depressive disorder by using medical evidence to support his arguments including the fact because he was irritable, a symptom of major depressive disorder, it led to behaviors such as fighting and throwing objects through a window. In effect, counsel attributes all his client’s behaviors as identified through the multiple nonjudicial punishments to his experiences while in the military service and does not differentiate his combat service. 18. 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. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. The applicant’s and his counsel’s contentions, medical concerns, letters of support, and the medical advisory were carefully considered. The medical advisory official determined there were symptoms of mitigating factors to his misconduct that led to his subsequent separation. 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. Notwithstanding the advisory opinion, the Board unanimously agreed his pattern of misconduct began prior to serving during war, and that his discharge characterization was warranted as a result of the continued 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 to amend the decision of the ABCMR set forth in Docket Number AR20110005209 on 6 September 2011. 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. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The Board may recommend a personal appearance hearing when appropriate in the interest of justice. 2. Army Regulation 40-501 Chapter 3 (Medical Fitness Standards for Retention and Separation, including Retirement) provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below acceptable physical standards. For anxiety, somatoform, dissociative disorders and mood disorders (depression) a Soldier can be referred to a medical evaluation board if the medical condition(s) require extended or recurrent hospitalization, limitation of duty or duty in a protected environment or interfere with effective military performance. Situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability, but may be the basis for administrative separation if recurrent and causing interference with military duties. 3. 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 4. 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 provisions of Army Regulation 635-200, Chapter 10 5. 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. 6. 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." //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170010356 2 1