ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 August 2019 DOCKET NUMBER: AR20170017686 APPLICANT REQUESTS: his discharge be upgraded to an honorable characterization of service due to his diagnosis of post-traumatic stress disorder (PTSD). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant’s Affidavit * Counsel’s Statement * Exhibit A – Applicant’s Service Statement * Exhibit B – Department of the Army, U.S. Army Criminal Investigation Command letter, dated 15 June 2017 * Exhibit C – Neuropsychiatric Examination Certificate, dated 21 October 1970 * Exhibit D – excerpts from Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service) * Exhibit E – Department of Veterans Affairs (VA) letters, dated 20 February 2015 and 12 March 2015 * Exhibit F – Secretary of Defense Chuck Hagel 3 September 2014 Memorandum * Exhibit G – excerpt from DA Form 20 (Enlisted Qualification Record) * Exhibit H – United States Court of Federal Claims Number 02-2042 filed 15 June 2005 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 states in his affidavit that he believes his discharge was unfair and unjust when he received it in 1970. He also asserts his discharge was not properly issued in accordance with Army regulations. As a result, he has been denied VA health benefits for his combat wounds and the right to educational benefits. Throughout his adult life he has felt the stigma and shame of having a less than honorable discharge characterization of service. He feels he was given a life sentence even though he served capably and was wounded in action. a. He states he is African-American and was born in His mother died when he was 10 years old and he then lived with relatives in, and. He attended elementary school in , but did not attend high school because he had to get a job to help his family members pay their bills. He moved to to live with an aunt and he found work starting as a dishwasher and then a janitor at a university hospital. During this period he realized he wanted to complete his education by meeting the requirements for the General Education Diploma (GED). b. He found information in a magazine showing he could complete his GED if he served in the military. Therefore, he enlisted in the Regular Army for 3 years at 20 years of age. What he didn’t realize is the country was at war at the time of his enlistment. He states, "I realize now that I probably was seeking some stability in my life that I had not had up until that time. I was immature in my expectations and my childhood experiences impaired my judgment to some extent." c. He attended basic combat and advanced individual training at Fort Knox, Kentucky in 1969. He states he received "Excellent" or "Good" conduct and efficiency ratings while in school. He admits he did receive one nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ). He failed to return to the post on-time due to lack of transportation in town. He also was found guilty during a court-martial because of an altercation with a superior noncommissioned officer (NCO). d. He wants the Board to know the facts and circumstances of the incident. The reveille bugle sounded and he was slow to get out of his bunk and into the washroom. Two NCOs (one white, one black) came into the washroom and the white NCO leaned into his ear shouting loudly, "Look boy, when you hear the bugle you get out." Unfortunately, his experiences of living in the South caused him to automatically react and he kicked the NCO and said, in effect, "Who are you talking to like that?" He thought the white NCO’s remarks were racially motivated because a more neutral term like soldier or trooper could have been used. He knows he did not hit him in the face nor did he talk harshly to him. During the court-martial he was found guilty and sentenced to 90 days in confinement. He does not recall the proceedings except that he felt overwhelmed by the entire process. His behavior in confinement was perfect, so he was released early. e. In January 1970, he was sent to the Republic of Vietnam where he was assigned to a troop of a cavalry unit within 25th Infantry Division. He served as a scout driver of an armored personnel carrier (APC). He and his troop went on search and destroy missions where he often witnessed fellow Soldiers being injured and dying from their wounds. He felt he was going to be the next injured or killed Soldier. f. On the morning of 24 August 1970 his troop was sent out to patrol an area that had rugged terrain. He was ordered to halt and get out of the APC and continue searching on foot along with other Soldiers. The lead Soldier ahead of him hit a booby trap and was killed immediately. He and another Soldier were injured. He ran back to his NCO to let him know what happened, then he passed out. He was medically evacuated to a hospital at Long Bihn where he was treated and hospitalized for about 3 weeks. While in the hospital he suffered emotionally and was very upset about his recent combat experiences. He felt shaky and frightened. What he didn’t know until recently was he was suffering from the symptoms of PTSD. g. After a few weeks he returned to his unit in the field. The wound to his shoulder had not yet healed and he was under mental duress. He was in pain because his shoulder wound became infected. He asked to see an Army doctor because of his emotional stress, but the doctor thought he was misusing drugs. h. At the time he was living in a shed-like structure that housed six Soldiers. He was sleeping in his bunk and his loaded rifle was under his mattress. An NCO came into the quarters and banged on his metal frame bed yelling for him to get up and get outside because he was going on a mission. He states, "In my state of sleepy stupor and disorientation I mistook the NCO's noise and yelling for a true battlefield situation and I inadvertently grabbed my rifle." He pulled the trigger firing a round into the ceiling of the structure. He also recalls yelling and screaming that someone (the enemy) was trying to kill him. Both he and the NCO ran from the structure. He recalls leaving his rifle behind. At some point the military police came and took him to a confinement facility. i. He does not recall the events that transpired after the firing incident. He does remember talking to an Army lawyer, but does not recall if an investigation took place. He was charged with assaulting an NCO with a deadly weapon, but he does not recall receiving the formal charges. He recently asked the Army in 2017 for his investigative reports and was told none existed. j. He also requested copies of documents filed in the official military personnel file concerning how he was separated, but none were found. He does recall meeting with an Army lawyer who said he could get him out of the Army and home. He was in a state of emotional duress, anxious and in pain from his shoulder wound. When he signed a paper he did not understand what it meant. He trusted his Army lawyer who produced a paper with a typed paragraph that he wanted him to sign. He did not understand its meaning. He does not recall the Army lawyer explaining his rights to him nor did he understand the types of discharges. k. He is working with a different lawyer now who explained that the statement he signed did not comply with the Army regulatory guidance in effect at the time. He states, "I feel that my command abused its authority when it effectively coerced me into accepting a[n] 'Under Conditions Other Than Honorable' discharge without fully explaining to me the consequences." He never received psychiatric medical advice or counseling nor was he given an opportunity for rehabilitation. He states, "He was not even given a Purple Heart for my having been wounded in action." l. His record shows he underwent a neuropsychiatric examination, but he believes the doctor did not properly diagnose him. He says this report shows his memory was intact, his intellect was below normal, his judgment was poor and insight limited. There was no indication of psychosis, neurosis or cerebral dysfunction. The doctor did state he had a character and behavior disorder and he probably would not benefit from rehabilitation. m. His counselor says the doctor’s statement saying his judgment was poor and that he had limited insight would suggest a strong link or predictor of schizophrenia which was often diagnosed at the time. It wasn’t until much later that PTSD was recognized and understood as a mental illness. n. He recalls being sent to California and undergoing medical examinations and then he was discharged with a character of service of under other than honorable conditions. He claims his type of discharge is inconsistent with what his Army lawyer told him he would receive. o. He returned to Michigan where his PTSD symptoms continued to worsen. He went to a VA hospital and was admitted for a few days and then was discharged because of the type of discharge he had received. He relocated and found work as a taxi driver but resorted to public assistance for financial support. At age 60 the VA accepted him into a program for Veterans who suffer from PTSD. He was eventually diagnosed with PTSD. He now realizes his actions in a combat environment were due to his PTSD symptoms and were not malevolent or hostile. 3. Counsel provides a separate statement in support of the applicant’s application wherein he restates the applicant’s service and post-service history. a. He claims the Army gave up on the applicant when it unjustly separated him with an under other than honorable conditions characterization of service (Undesirable Discharge Certificate). He states the applicant’s military record lacks the evidence required to show the applicant was properly administratively separated in accordance with Army Regulation 635-200 because there are no investigative reports on file at the U.S. Army Criminal and Investigations Command as shown in a 2017 letter from that command. He asserts proper procedures where not followed: * the applicant’s record lacks evidence showing court-martial charges were preferred against him * that the applicant’s request for separation was involuntary * that military counsel did not adequately counsel the applicant concerning charges and possible punishments * the applicant did not voluntarily sign a personal statement indicating he had been adequately counseled and understood his rights * that an assigned counsel must sign and witness the applicant’s statement b. The second injustice the applicant encountered was at the time of the alleged incident he was suffering from PTSD symptoms. While PTSD was not defined or identified until 1980, the applicant was clearly exhibiting its symptoms. He was an infantryman performing duties in a cavalry troop in the Republic of Vietnam. During a search and destroy mission he was told to dismount his APC and search on foot for enemy soldiers. The lead United States Soldier on a trail encountered an enemy placed booby trap that detonated immediately killing the Soldier. The applicant was behind him and he was injured by shrapnel. Despite his wounding, he moved to the rear as quickly as possible to report to his NCO the situation and request medical evacuation for other Soldiers that were seriously wounded. He too was medically evacuated and treated at a military hospital for his wounds. He returned to his unit within a short period of time still suffering from open shrapnel wounds and was expected to return to the fight. While sleeping in his bunk, he was abruptly alerted or startled by an NCO. In the process of the alert, he discharged his weapon hitting the ceiling. The NCO and the applicant’s leadership thought he was committing an assault with a weapon. Counsel states the applicant’s startled response to the environment is typical of one who has PTSD and returns to battle shortly after an incident. The applicant had sought behavioral health treatment shortly after the booby-trap incident because he knew he was not well. c. In 2017, the applicant was diagnosed with PTSD by a VA psychologist. Under the provisions of Secretary Hagel’s 2014 memorandum the Board must now liberally review the applicant’s application taking into account the diagnosis of PTSD that might have been a mitigating factor during the incident that led to the applicant’s less than honorable conditions discharge. Further, he states the behavioral health examination rendered in 1970 should not be taken into consideration or given weight by the Board for it is the only report that appears to relay the facts and circumstances of the applicant’s separation. d. In summary, the applicant’s separation was unjust and administrative procedures were not properly followed. At the time of the incident the applicant was exhibiting signs of PTSD symptoms. Based on new guidance published in 2014, the Board should upgrade the applicant’s discharge to an honorable discharge which will assist him with his claim at the VA for benefits. 4. The applicant enlisted in the Regular Army on 27 May 1969 for a 3 year period of service. He attended basic combat training at Fort Knox, Kentucky. A review of his DA Form 20 (Enlisted Qualification Record) shows during basic training he received "Excellent” conduct and efficiency ratings. He continued with his training at Fort Knox where he attended his advanced individual training. During this training period he received a "Good" rating for his conduct and an "Excellent" rating for his efficiency. He trained as a scout observer. 5. Special Orders Number 198, dated 17 July 1969, issued by Headquarters, U.S. Army Training Center, Armor, Fort Knox, Kentucky awarded him the Marksman Marksmanship Qualification Badge. 6. On 27 September 1969 while in a training status the applicant accepted nonjudicial punishments under the provisions of Article 15, UCMJ as recorded on DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ for absenting himself from his unit from 1300 hours 20 September 1969 to 0200 hours 21 September 1969 and for wrongfully and without proper authority wearing his fatigue uniform off post. His punishment consisted of reduction to the rank and pay grade of private/E-1 and forfeiture of $50 per month for 1 month and 20 days extra duty. He did not appeal. Special Orders Number 168, dated 2 October 1969 ordered the forfeiture of pay. 7. On 6 November 1969 the applicant was court-martialed during a special court- martial and found guilty of striking a NCO who was in the execution of his duties by striking him on his face with his fist. He was also found guilty of being disrespectful in language toward a NCO who was in the execution of his duties by saying to him, “My name is Do you understand? Mr. [Applicant],” or words to that effect. His sentence included forfeiture of $60 per month for 4 months and to be confined to hard labor for 4 months. On 17 November 1969, the sentence was approved with the sentence of confinement suspended for 4 months. Special Court-Martial Order Number 300, dated 17 November 1969, records the aforementioned facts. 8. On or about 6 February 1970 he was reassigned to the United States Army Pacific Command with duty in the Republic of Vietnam. He was assigned to Troop A, 3rd Squadron, 4th Calvary, 25th Infantry Division as a scout driver. 9. Special Orders Number 79, dated 20 March 1970, issued by Headquarters, 25th Infantry Division awarded the applicant the Combat Infantryman Badge effective 19 February 1970. 10. Filed in the applicant’s official military personnel file is DA Form 8-275-3 (Clinical Record Cover Sheet) showing the applicant was admitted to the hospital from an evacuation hospital on 24 August 1970 because he was wounded in action by a booby trap on or about 1230 hours 24 August 1970. He received shrapnel wounds to his right shoulder, right flank, and left abdominal wall for which he received medical treatment. 11. General Orders Number 187, dated 24 August 1970, issued by Headquarters, 24th Evacuation Hospital awarded the applicant the Purple Heart for wounds incurred on 24 August 1970. 12. General Orders Number 9225, dated 26 August 1970, issued by Headquarters, 25th Infantry Division awarded the applicant the Army Commendation Medal for Heroism, First Oak Leaf Cluster (Army Commendation Medal with "V" Device first oak leaf cluster) for his actions on 24 August 1970. 13. There is an appointment slip filed in his record showing on 24 September 1970 he sought medical treatment from the mental hygiene clinic and he was returned to full duty with his next appointment scheduled for 28 September 1970. 14. On 26 September 1970, court-martial charges were preferred against the applicant for on or about 1700 hours 26 September 1970 committing an assault upon an NCO by shooting at him with a dangerous weapon likely to produce grievous bodily harm, to wit an M-16 rifle. These charges are recorded on DA Form 438 (Charge Sheet). Also filed in his record are witness statements recorded on DA Forms 2823 (Witness Statement) attesting to the applicant’s conduct supporting the DA Form 438. a. Witness Specialist said he had just laid down on his bunk after chow when Staff Sergeant (SSG) came into the barracks to inform the applicant that Lieutenant (LT) wanted to see the applicant. He really didn’t pay attention because he was reading a letter. The next thing he knew he heard a shot and he hit the floor. He heard two more shots and when he looked up he saw a crowd had gathered outside. He answered separate questions where he stated he did not hear the applicant speak to the NCO; that after coming in from the field and when the supply room was locked he kept his weapon in his bunk under his mattress; and he did not hear the applicant and the NCO quarrel. b. Witness Specialist was in his barracks room when SSG came into it and told the applicant that LT wanted to see the applicant in the orderly room. The applicant responded by saying, "Why do you guys keep bugging me?" The NCO walked toward the door at which time he heard a shot from inside the barracks room. After the shot was fired, the NCO started to run out of the barracks. He stated the applicant also started running out of the barracks then he heard two more shots on the outside. The witness said he did not know who fired the shots inside or outside the barracks and he did not see the applicant with a weapon in his hands. He could not say for sure who fired the shots and he never heard the applicant threaten the NCO. c. The third witness statement is of very poor quality. However, he was on the sidewalk outside the barracks when he heard shots. He states he observed a Negro individual in the motor pool area running with a rifle (M-16) which he dropped, but kept running. He saw two individuals catch the applicant and hold him by his arms taking him to the orderly room. d. The fourth witness, SSG (or NCO), stated he went into the enlisted men’s billets in the company area to talk to the applicant. He found the applicant lying on his bunk. He told him to get dressed because the LT wanted to see him because he missed formation that afternoon. He gave the applicant the message and then turned to go out the door when the applicant jumped on top of his bunk grabbing his M-16 rifle from under his mattress saying, "Why are you people always fxxxxxx with me?" The applicant had his rifle at his waist and was pointing it at the witness. The witness rushed to get out of the billets but before he got out he heard a shot. He kept running for a few hundred meters and heard two more shots. When he stopped running and looked back he saw two people had restrained the applicant. Upon questioning, he stated that he had a problem with the applicant a week earlier when he told him to go on a detail. The applicant refused to go. He also reported two other witnesses were in the billet area with the applicant. 15. On 3 October 1970 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. He elected to submit a statement 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 under other than honorable conditions * as a result of the issuance of an Undesirable Discharge Certificate he could be deprived of many or all Army benefits * he could be ineligible for many or all benefits administered by the 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 16. The applicant prepared a statement saying, in effect, he was requesting a discharge under the provisions of chapter 10, Army Regulation 635-200. He further stated he requested issuance of a General Discharge Certificate. a. He said he never had any trouble in his civilian life, but before he joined the Service he began to have headaches and a nervous condition. He states he went to mental hygiene multiple times while in a training status. The doctor did not believe him. He recounts the reason for his court-martial due to his startle response when he struck an individual. He states his nervous condition worsened after he left training. Upon arrival in the Republic of Vietnam, he went to the clinic for his headaches. He went into the field on 13 February 1970. b. He served in Cambodia too with severe headaches and dizzy spells. On 24 August 1970 he was wounded in action. He spent 1 week at the 24th Evacuation Hospital and transferred to the 6th Convalescent Center for two more weeks. He returned to his unit on or about 14 September 1970. He went to the dispensary on 17 September 1970 for medical treatment of his wounds and for a consult for mental hygiene due to his continuing headaches and because he felt something was wrong with him. His unit was supposed to complete paper work, but it didn’t get it done delaying his appointment until 28 September 1970. c. The incident for which he received a charge statement occurred on 26 September 1970. He has tried to be a good Soldier and to perform his duties to the best of his abilities. He stated he did not think he was capable of performing his Army duties any longer. His nervousness and headaches have not been relieved. He feels if he were to remain in the U.S. Army he would have further difficulty. He concluded his statement by requesting issuance of a General Discharge Certificate. 17. On 9 October 1970, by letter, the applicant’s company commander stated he had interviewed the applicant regarding the 26 September 1970 incident. The applicant indicated he was of no further use to the U. S. Army and he expressed a desire to be discharged. His commander stated there was no indication to make him believe the applicant was mentally disturbed to the point he could not distinguish right from wrong. The applicant explained his medical problem which the commander said was constant recurring headaches. The commander was aware the squadron surgeon saw the applicant multiple times and the applicant would undergo a psychiatric examination. He stated he did not support the applicant’s request for a General Discharge Certificate based on his disciplinary history. He recommend issuance of an Undesirable Discharge Certificate. 18. On 21 October 1970 the applicant underwent a medical examination. He completed Standard Form 89 (Statement of Medical History) wherein he indicated he had nervous trouble, a skin disease, and problems with his ears, nose and throat. He indicated his nervous troubles were constant headaches. A medical provider completed Standard Form 88 (Report of Medical Examination) wherein he stated the applicant had a psychiatric problem identified as a character disorder – passive aggressive tendencies that were chronic and severe. The medical provider determined the applicant met the medical qualification standards for retention or release from active duty. 19. He also underwent a neuropsychiatric examination on 21 October 1970 wherein a psychiatrist diagnosed the applicant with a character and behavior disorder – passive aggressive personality manifested by poor impulse control, low tolerance to stress, hostility, apathy, negativism and difficulty with authority figures; chronic, severe. The doctor stated the applicant met the medical retention standards identified in Army Regulation 40-501 (Standards of Medical Fitness) with no indication of psychosis, neurosis or cerebral dysfunction. The doctor said it was unlikely that efforts to rehabilitate or develop the applicant into a satisfactory Soldier would be successful. He concluded by recommending the applicant’s administrative discharge. 20. On 26 October 1970 the separation authority, a major general, approved the applicant’s request for discharge and directed issuance of an Undesirable Discharge Certificate. 21. The applicant returned to the continental United States on or about 29 October 1970. 22. On 1 November 1970, Special Orders Number 305 were issued by Headquarters, U.S. Army Personnel Center, Oakland, California, discharging the applicant the same date. Initially the orders directed issuance of a General Discharge Certificate; however, an amendment was published directing issuance of an Undesirable Discharge Certificate with a characterization of service of under other than honorable conditions. 23. Accordingly, he was discharged from the Regular Army on 1 November 1970. He was issued a DD Form 214 showing he completed 1 year, 4 months and 12 days of net service with 23 days of lost time under the provisions of Title 10, U.S. Code, section 972. His DD Form 214 contains the following pertinent information: * item 5a (Grade, Rate or Rank) – private * item 5b (Pay Grade) – E1 * item 11c (Reason and Authority) – Army Regulation 635-200, Separation Program Number 246 * item 13a (Character of Service) – under other than honorable conditions * item 13b (Type of Certificate Issued) – DA Form 258A (Undesirable Discharge Certificate) * item 15 (Reenlistment (RE) Code) – RE 3 * item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) – shows the * National Defense Service Medal * Vietnam Campaign Medal with Device (1960) * Vietnam Service Medal * item 30 (Remarks) – Republic of Vietnam from "15 February to 1 November 1970" 24. The applicant applied to the Army Discharge Review Board (ADRB) for a review of his discharge. On or about 13 December 1971 a hearing was held. The ADRB determined he was properly discharged and that his appeal to the ADRB should be denied. On 26 January 1972 he received a letter informing him the ADRB denied his request to upgrade his discharge. 25. In 1977, he again appealed to the ADRB writing a letter wherein he explained his desire to seek higher education through joining the U.S. Army. He also states he was promised a medical military occupational specialty. He didn’t receive that training, he was trained as a scout observer and APC driver. He survived an enemy fire-fight in the Republic of Vietnam and was wounded in action. He witnessed two Soldiers die due to the effects of an enemy booby-trap. He kept thinking he should have been one of the dead men. He was hospitalized for his wounds and treated. He states he was released early when he should have been retained in the hospital because his wounds had not healed. He stated his headaches and nervous condition increased after he was wounded in action. The NCO, SSG, constantly harassed him and put him on heavy details such as loading and unloading supply trucks with heavy ammunition and other heavy stock supplies. He kept working the details until his wounds became infected while his headaches and nervous condition increased which caused him to lose sleep at nights. He would wake up at night sweating and shaking. He asked to see a psychiatrist, but before his appointment there was an incident with SSG the barracks. He states he was asleep in his bunk with SSG kicked his bunk and using profane language told him he had detail work to do. He lost control of his behavior and started firing his weapon. 26. In his second ADRB appeal, he submitted a letter from a psychologist who diagnosed him with an "Inadequate Personality" under the provisions of the Diagnostic and Statistical Manual of Mental Disorders (DSM), Second Edition (DSM II) diagnosis number 301.82. He states persons with inadequate personality lack judgment and are deficient in impulse control when under stress. He states based on the applicant’s early childhood and movement between family members, it can lead to chronic fears and/or problems with impulse control. He continues by stating the applicant exhibited low levels of adaptability to excessive pressure – real or imagined. Under severe stress, a person with this disorder is rendered incapable of adhering to the right when under severe stress which leads to blocking them from differentiating proper ways to act. He continues by saying just two to three weeks before the incident, the applicant was wounded in action, hospitalized, suffered from headaches, and feared he was "going crazy." He sought behavioral health treatment, but it was not provided. The psychologist concludes the applicant’s behavior was a reaction to continuing and severe stress which caused a breakdown of his impulse control mechanism. There also is evidence that shortly after his discharge he was admitted to a psychiatric hospital. 27. On 27 September 1977, the ADRB again determined the applicant was properly discharged. He was further told the review of his discharge under the Department of Defense Discharge Review Program (Special) also denied his appeal. 28. In late 1978 by letter, he was informed his discharge could be reviewed again under the provisions of Court Order Number 76-0530, dated 23 August 1978. There is no evidence he requested a third review. 29. The Department of the Army Special Discharge Review Program (SDRP) was based on a memorandum from Secretary of Defense Brown and is often referred to as the "Carter Program." It mandated the upgrade of individual cases 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. 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 (court-martial) was not eligible for consideration under the SDRP. Absentees who returned to military control under the program were eligible for consideration after they were processed for separation. Individuals could have their discharges upgraded if they met any one of the following criteria: 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. Compelling reasons to the contrary to deny a discharge upgrade 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. 30. The applicant provided a letter from a VA psychologist who diagnosed him with PTSD from his combat experiences in the Republic of Vietnam. The applicant receives treatment at the VA and is part of a PTSD support group/medical team. The psychologist stated, "The applicant had a long history of intrusive recollections of combat-related experiences he had in Vietnam, behavioral avoidance of issues/reminders of combat related experience, and chronic physiological hyperarousal." The psychologist recounts the applicant’s military history including his wounding in action, other combat experiences, his exposures to the atrocities of war and his disciplinary actions based on his misconduct. He also reports the applicant had significant readjustment to civilian society post-service including a diagnosis of schizophrenia. In 2009, he was diagnosed with PTSD and entered treatment for PTSD. He receives medication management and attends group and individual appointments where he is a cooperative member of the group. He did not marry and spends a great deal of his time alone due to his mental health issues. 31. 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 post-traumatic stress disorder (PTSD) criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions 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 applicant's service. 32. He also provided a VA psychiatrist letter addressed to the Army Review Boards Agency, dated 12 March 2015, stating the applicant clearly meet the criteria for PTSD and his history is consistent with combat-related military PTSD from his service in the Republic of Vietnam. He recounts the applicant’s military history including defining the DSM standard for "passive aggressive behavior" in accordance with the DSM which was typical of the time period for PTSD had yet to be defined and recognized in the DSM. He reiterated the applicant’s post-service experiences and subsequent medical treatment. He believes there is no reason to doubt the applicant’s truthfulness and recommends the Board favorably grant the applicant an honorable discharge to recognize the honorable nature of his service. 33. 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 (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. 34. On 24 January 2018, the Army Review Boards Agency staff psychologist rendered an advisory opinion. She restates the applicant’s military history as he defined it in his statement. At the time of her review, the applicant’s official military personnel file was not available to her. She does acknowledge she reviewed the applicant’s statements upon his request for discharge, a 21 October 1970 neuropsychiatric examination which included a diagnosis of a character and behavior disorder and then a second diagnosis of a passive-aggressive personality manifested by poor impulse control, low tolerance to stress, hostility, apathy, negativism and difficulty with authority. She reviewed his limited medical records including his separation medical examination where his behavioral disorder was identified as passive-aggressive disorder. She further acknowledged the letters from VA doctors diagnosing him with PTSD. She concludes by saying from her perspective there appears to be a lack of evidence to support the applicant’s contention that an undiagnosed behavioral health condition contributed to his misconduct that led to his Undesirable Discharge Certificate and less than honorable characterization of service. She says the VA conducts their own evaluations to different standards. A copy of the complete medical advisory was provided to the Board for their review and consideration 35. The applicant with counsel was provided a copy of the advisory opinion and given an opportunity to submit comments. On 12 February 2018, counsel responded on behalf of the applicant. He states the applicant’s PTSD condition arose after his combat action including his wounding in action. He disagrees with how she presents the applicant’s misconduct evidence prior to his deployment and finds it irrelevant. As the advisory states there is a lack of evidence, this supports the position that appropriate recordkeeping was lost or was insufficient at the onset. In fact, PTSD was not recognized in 1970 at the time of the applicant’s service and subsequent discharge. Therefore, it is not surprising the neuropsychiatric examination done prior to his discharge is devoid of that characterization (medical diagnosis of PTSD). As he reviews the applicant’s records, "The VA diagnosis does not detract from, but actually supports, the contention that at the time of his discharge, [the applicant] was suffering from undiagnosed PTSD. The VA’s diagnosis was made at a time when the medical and psychiatric evidence and it implications were much better understood and therefore should not be denigrated but rather are entitled to substantial weight in the final analysis." BOARD DISCUSSION: After review of the application and all evidence, aside from the administrative notes below the signature block, the Board found insufficient evidence to grant relief. The board applied Office of the Secretary of Defense standards of liberal consideration and clemency to the complete evidentiary record, including the applicant’s statement and was unable to find sufficient evidence of error, injustice, or inequity. While the Board gave great consideration to the applicant’s combat service and Purple Heart Medal, it ultimately agreed with the medical advisory that the applicant’s military records indicate a history of serious misconduct prior to deployment and his medical condition existed prior to entry into service. Therefore, the Board found that, although the VA diagnosed the applicant with service-connected PTSD, there is insufficient evidence that the post- service-diagnosed PTSD mitigated the violent behavior that led to the applicant’s Bad Conduct Discharge. The Board agreed that the applicant’s discharge characterization is appropriate for the serious 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: Aside from the administrative notes below the signature block, 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): 1. Orders awarded the applicant the following awards which should be added to his DD Form 214: * Purple Heart * Army Commendation Medal with "V" Device first oak leaf cluster * Marksman Marksmanship Qualification Badge with Rifle Bar 2. Department of the Army General Orders Number 8, dated 1974, announced award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation to Headquarters, U.S. Military Assistance Command and its subordinate units during the period 8 February 1962 to 28 March 1973 and to Headquarters, U.S. Army Vietnam and its subordinate units during the period 20 July 1965 to 28 March 1973. The applicant served during a qualifying period; therefore, this award should be added to his DD Form 214. 3. Army Regulation 600-8-22 (Military Awards) states a bronze service star is worn on the appropriate service ribbon, to include the Vietnam Service Medal, for each credited campaign. A review of the regulation shows the applicant served during three campaigns; therefore he is entitled to three bronze service stars to be affixed to his Vietnam Service Medal. Remove the Vietnam Service Medal from his DD Form 214 and add the Vietnam Service Medal with three bronze service stars to it. 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 Army Board for Correction of Military Records (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. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-14, 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 stated an honorable discharge was given when the quality of the Soldier’s service had generally met standards of acceptable conduct and duty performance. c. Paragraph 3-7b stated a general discharge was 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) provided for 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 program designator (SPD) codes to be used for the stated reasons. * SPD KFF is the code for use directed by the service secretary under the provisions of Army Regulation, Chapter 5, Section Il * Separation Program Number (SPN) 246 was the code used by enlisted personnel separating under the provision of Army Regulation, Chapter 10 at the time of the applicant’s service 4. The SPD/RE Code Cross-Reference Table provides instructions for determining the RE code for Regular Army and Reserve Component Soldiers being separated. The Table in effect at the time stipulates an RE code of 4 will be assigned to members separated with an SPD code of KFS (formerly SPN 246). For the SPD code of KFF, it will be determined by an appropriate authority (Headquarters, Department of the Army directive). //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170017686 16 1