ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 August 2020 DOCKET NUMBER: AR20180002762 APPLICANT REQUESTS: an upgrade of his discharge under other than honorable conditions to general under honorable conditions. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Court-Martial Convening Order Number 15, Headquarters, 519th Military Police Battalion (Army), dated 31 May 1973 * Court-Martial Convening Order Number 18, Headquarters, 519th Military Police Battalion (Army), dated 13 June 1973 * Summarized Record of Trial (and accompanying papers) of [Applicant] by Special Court-Martial, tried from 12 through 21 June 1973 * Special Court-Martial Order Number 7, Headquarters 519th Military Police Battalion (Army), dated 30 August 1973 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) dated 26 September 1973 * Letter, Licensed Clinical Social Worker-Certified, Department of Veterans Affairs, dated 19 June 2019 * Letter, Veteran's Readjustment Counselor, Martinsburg Vet Center, dated 19 July 2019 REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. 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. 3. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. Chapter 10 provided that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. If disciplinary proceedings are not held in abeyance, the general courts-martial convening authority may nevertheless approve the member's request for discharge for the good of the service after the member has been tried. A discharge under other than honorable conditions is normally appropriate for a Soldier who is discharged in lieu of trial by court-martial. However, the separation authority may direct a general discharge if such is merited by the Soldier's overall record during the current enlistment. When a member is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade. 4. The Diagnostic and Statistical Manual of Mental Disorders (DSM), chapter 7, addresses trauma and stress or related disorders. The DSM is published by the American Psychiatric Association (APA) and provides standard criteria and common language for classification of mental disorders. a. In 1980, the APA added post-traumatic stress disorder (PTSD) to the third edition of its DSM nosologic classification scheme. Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice. From a historical perspective, the significant change ushered in by the PTSD concept was the stipulation that the etiological agent was outside the individual (i.e., a traumatic event) rather than an inherent individual weakness (i.e., a traumatic neurosis). The key to understanding the scientific basis and clinical expression of PTSD is the concept of "trauma." b. The fifth edition of the DSM was released in May 2013. This revision includes changes to the diagnostic criteria for PTSD and acute stress disorder. The PTSD diagnostic criteria were revised to take into account things that have been learned from scientific research and clinical experience. The revised diagnostic criteria for PTSD include a history of exposure to a traumatic event that meets specific stipulations and symptoms from each of four symptom clusters: intrusion, avoidance, negative alterations in cognitions and mood, and alterations in arousal and reactivity. The sixth criterion concerns duration of symptoms, the seventh criterion assesses functioning, and the eighth criterion clarifies symptoms as not attributable to a substance or co- occurring medical condition. 5. As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis, and treatment of PTSD, the Department of Defense acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had an undiagnosed condition of PTSD at the time of their discharges. It is also acknowledged that in some cases this undiagnosed condition of PTSD may have been a mitigating factor in the Soldiers' misconduct which served as a catalyst for their discharge. Research has also shown that misconduct stemming from PTSD is typically based upon a spur of the moment decision resulting from a temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues for an extended period of time. 6. 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 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 applicants' service. 7. 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. 8. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Service BCM/NRs regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, section 1552(b); however, the ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he developed PTSD after completing a tour of duty in Vietnam. Upon his return from combat, his marriage was falling apart. He requested leave to handle his family issues, but his request was denied. At the time, his wife's cousin was living with them and her former partner began to threaten his family. He felt he had to protect them. After returning from Vietnam, he had an even stronger innate feeling to protect his family. As a military policeman, he feared the worst for them and did not trust they would be safe without his presence. He lived only 9 miles off post and was absent without leave (AWOL) with intentions of a quick return. He has always felt he was treated unjustly as a result of his circumstances. In 1974, he filed for a review of his discharge, but an upgrade was denied. He has been growing more distrustful of the Government and its support of combat veterans. 3. His records show he was assigned to Company B, 720th Military Police Battalion, in Vietnam from 12 December 1971 through 3 August 1972. 4. On 5 February 1973, nonjudicial punishment was imposed against him under the provisions of Article 15, Uniform Code of Military Justice, for failing to go at the time prescribed to his appointed place of duty on 31 January 1973 at 0645 hours. His punishment consisted of forfeiture of $25.00 pay (suspended for a period of 30 days). He elected not to appeal. 5. On 9 April 1973, nonjudicial punishment was imposed against under the provisions of Article 15, Uniform Code of Military Justice, him for three specifications of being AWOL. a. on 21 March 1973, for absenting himself from his unit without authority and remaining so absent until 28 March 1973; b. on 3 April 1973, for absenting himself from his unit without authority and remaining so absent until 3 April 1973; and c. on 5 April 1973, for absenting himself from his unit without authority and remaining so absent until 9 April 1973. d. His punishment consisted of reduction in rank/grade from specialist four/E-4 to private first class/E-3. He elected not to appeal. 6. On 23 April 1973, nonjudicial punishment was imposed against him under the provisions of Article 15, Uniform Code of Military Justice, for two specifications of being AWOL: a. on 10 April 1973, for absenting himself from his unit without authority and remaining so absent until 19 April 1973; and b. on 22 April 1973, for absenting himself from his unit without authority and remaining so absent until 23 April 1973. c. His punishment consisted of forfeiture of $75.00 pay and reduction in rank/grade to private/E-2. He elected not to appeal. 7. On 25 May 1973, court-martial charges were preferred against him for violating Article 86 (AWOL) of the Uniform Code of Military Justice on 21 May 1973 by absenting himself from his unit without authority and remaining so absent until 25 May 1973. He was also charged with violating Article 90 (Disobeying Superior Commissioned Officer) on 21 May 1973 for willfully disobeying a lawful command from his superior commissioned officer to remain in the company area and to request express permission to leave. 8. Headquarters, 519th Military Police Battalion (Army), Special Court-Martial Order Number 7, dated 30 August 1973, states the applicant was arraigned and tried before a special court-martial on 21 June 1973. He was found guilty of violating Article 86 (AWOL) of the Uniform Code of Military Justice for being AWOL from 21 May 1973 through 25 May 1973. His sentenced consisted of reduction to the rank/grade of private/E-1 and forfeiture of $100.00 pay. 9. The complete facts and circumstances surrounding his discharge are not available for review. 10. On 26 September 1973, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows: * he completed 2 years and 22 days of net active service * he completed 8 months and 1 day of foreign service in Vietnam * he accrued 50 days of lost time during the periods – * 21 March1973 through 27 March 1973 * 3 April 1973 through 8 April 1973 * 10 April 1973 through 18 April 1973 * 22 April 1973 through 23 April 1973 * 21 May 1973 through 24 May 1973 * 5 July 1973 through 8 July 1973 * 13 July 1973 through 18 July 1973 * 25 July 1973 through 7 August 1973 11. The letter from the Department of the Army Office of the Adjutant General and the Adjutant General Center, dated 6 October 1981, stated the Army Discharge Review Board carefully considered his military records and determined he was properly discharged. Accordingly, his request for a change in the type and nature of his discharged was denied. 12. The letter from the Martinsburg Vet Center Veteran's Readjustment Counselor, dated 19 July 2019, states it is her expert opinion as a Licensed Independent Clinical Social Worker and Advanced Drug Counselor that after her assessment, the applicant meets the symptoms and diagnostic criteria for PTSD. She believes this condition stemmed from his service during the Vietnam War. The applicant completed the Life Events Checklist and experienced 10 traumatic events during his Vietnam tour of duty. He also completed the PTSD Checklist and according to this testing instrument, he experiences severe symptoms of PTSD. His symptoms include experiencing symptoms of intrusive memories and nightmares, avoidance of stimuli and emotional reminders associated with the trauma, negative altercations in world view and affect, changes in arousal, and reactivity associated with the traumatic events. In her clinical opinion, these symptoms are service related and impact the quality of his social relationships, self-perception, and sense of inner peace. 13. The Army Review Boards Agency (ARBA) psychiatrist was asked to review this request. Documentation reviewed includes the applicant’s completed DD Form 149 and supporting documents, the available military personnel records, the VA electronic medical record (JLV-Joint Legacy Viewer) and applicant-provided medical documentation. Review of the applicant’s military personnel records indicates that he was deployed to Vietnam from 12 December 1971 through 3 August 1972. After returning from Vietnam, he began engaging in a pattern of misconduct characterized by frequent occurrences of absenting himself without leave. On 26 September 1973, he was separated from the Army. At the time of discharge, he had accrued 50 days of lost time, all of it occurring post-deployment. Review of the VA electronic medical record, JLV, indicates that it contains no content regarding the applicant. Applicant-provided medical documentation consists of a letter, dated 19 July 2019, from the Veteran’s Readjustment Counselor of the Martinsburg Vet Center. Review of this letter indicates the following: The applicant has been receiving readjustment counseling at the Martinsburg Vet Center. The applicant has been assessed and found to meet the criteria for a diagnosis of PTSD stemming from his service in the Vietnam War. He has reported experiencing 10 traumatic events during his Vietnam tour of duty. His PTSD symptoms consist of nightmares, intrusive memories, avoidance behavior, a negative world view and changes in arousal and reactivity. Based on the available information, it is the opinion of the ARBA psychiatrist that the applicant has a mitigating behavioral health condition – PTSD. As PTSD is associated with avoidance behavior, there is a nexus between his diagnosis of PTSD and his multiple post-deployment incidents of absenting himself without leave. BOARD DISCUSSION: 1. The Board carefully considered the applicant's request, supporting documents, evidence in the records, a review by the ARBA psychiatrist, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, his record of service to include deployment, the frequency and nature of his misconduct, and the reason for his separation. 2. The Board considered the applicant's PTSD claim and the review and conclusions of the ARBA psychiatrist. The Board concurred with the conclusion of the ARBA psychiatrist that the applicant's PTSD is a mitigating factor for the misconduct that led to his discharge. Based on a preponderance of evidence, the Board determined the applicant's character of service should be upgraded to under honorable conditions (general). BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing his DD Form 214 for the period ending 26 September 1973 to show his service was characterized as under honorable conditions (general). 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180002762 8 1