BOARD DATE: 24 July 2020 DOCKET NUMBER: AR20180012247 APPLICANT REQUESTS: reconsideration of his previous request for an upgrade of his undesirable discharge and, as a new request, reinstatement of his rank. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Personal statements * Memorandum * Letter from the Veterans Evaluation Service * Letter of support from spouse * Documents from his personnel file * Excerpt of Army Regulation 635-212 (Personnel-Discharge-Unfitness and Suitability) * Photographs * Rating Decision from the Department of Veteran Affairs (VA) * Medical documents FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20160004890 on 18 July 2017. 2. The applicant states, in part: a. All of his performance reports were graded as excellent. After his training, he was transferred to Ft. Hood Texas for preparation to dispatch to Vietnam. He exercised poor judgement in going absent without leave (AWOL). His going AWOL was because his sweetheart broke up with him ending their relationship. He was charged and court- martialed. He departed for Vietnam on 4 October 1967. During combat missions his unit encountered ambush and sniper fire. He witnessed his buddy being shot in the head and killed. On a mission in December 1967, his unit was outnumbered and under fire, a call was made for air support, resulting in the enemy being killed by napalm bombing, an unforgettable experience. In December 1967, while on point, he encountered an enemy scout, killed him, and took his rifle. b. On 7 September 1967, his unit received incoming mortar fire and the explosion hit him on the right side of his body. He was evacuated to the hospital at Ft. Hood TX. While under medical treatment, he left the hospital without authority and went home. The Army initiated an administrative discharge with a medical and mental exam. The exams stated he was physically and mentally fit with no defects; however, he was not in a stable state of mind. He tried reporting his pain caused by the remaining shrapnel during his exit exam. c. The VA found him service-connected for post-traumatic stress disorder (PTSD). The VA medical exam x-rays revealed large shrapnel lodged in his right hip area which causes his inability to assume certain positions. He continues to suffer with repeated pain. d. He would like the board to consider his age, education, and maturity level in his decisions to go AWOL, especially at the time he had 42 days leave accrued. PTSD can cause spur of the moment decisions resulting from a temporary lapse in judgement. These lapses of judgements would have started from the initial combat stressors encountered from 4 October 1967 through 7 September 1968, and according to today’s recognized studies of Soldiers' PTSD. The PTSD concept is the stipulation the etiological agent was outside the individual weakness (i.e., a traumatic event), rather than an inherent individual weakness (i.e., a traumatic neurosis). e. The Department of Defense acknowledges some Soldiers that were administratively discharged under other than honorable conditions (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 which served as a catalyst for their discharge. Research shows that misconduct caused by PTSD is typically based upon a spur of the moment decision resulting from a temporary lapse in judgement, therefore, PTSD is not a likely cause for premeditated misconduct or misconduct that continues for an extended period of time. f. It is noted the ABCMR has followed the view of the memorandum issued by the Secretary of Defense dated 3 September 2014, to consider the revised PTSD criteria as mitigating factors when taking action on applications from former service members administratively discharged UOTHC to upgrade the characterization of applicants service. The applicant's statements are available for the board's review and consideration. 3. The applicant enlisted in the Regular Army on 28 July 1966. Records show he served in Vietnam from 4 October 1967 to 22 September 1968. 4. The applicant accepted non-judicial punishment on the following occasions: * 6 April 1967, for violating a weekend pass * 4 May 1967, for being absent from his unit for 2 hours * 19 September 1967, for failing to go to appointed place of duty at prescribed time * 12 November 1968, for being absent without authority (reduced in grade from E-3 to E2) * 5 March 1969, for failing to go to appointed place of duty at prescribed time 5. The applicant was convicted by Special Courts-Martial on the following occasions: * 5 August 1967, for being absent without proper authority (reduced in grade from E-2 to E-1) * 26 January 1968, failing to obey lawful order * 25 March 1969, for breaking restriction 6. Fort Hood Form 195 (Certificate - Brief Clinical Abstract), dated 25 March 1969, outlined the applicant's psychiatric evaluation as follows: a. He was a 20-year old enlisted Soldier with 30 months of total service who was referred to the mental health clinic by his unit commander for psychiatric clearance under the provisions of Army Regulation 635-212. The applicant was convicted by two special courts-martial. He also has a history of accepting NJP under the provisions of Article 15, UCMJ, most recently for being absent and for failing to repair. His unit commander stated he could not perform his duties, could not get along with fellow Soldiers, and required constant supervision. The applicant showed no evidence of any neurosis or psychosis. b. There were no disqualifying mental defects sufficient to warrant disposition through medical channels. c. The applicant was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings. 7. DA Form 2496 (Disposition Form), Medical Statement, dated 24 April 1969, stated the applicant was physically and mentally fit for duty without profile limitations. He was responsible for his actions and able to understand and participate in board proceedings. 8. On 25 April 1969, the applicant's unit commander initiated separation under the provisions of Army Regulation 635-212 for unfitness. The commander stated the applicant did not display any potential for retention or rehabilitation in a military setting and separation was warranted. 9. On 25 April 1969, the applicant received legal counseling and waived consideration of his case by a board of officers, waived a personal appearance, waived representation by counsel, and declined to submit a statement in his own behalf. 10. On 10 May 1969, the appropriate authority approved the separation action and directed issuance of DD Form 258A (Undesirable Discharge Certificate). On 23 May 1969, the applicant was discharged accordingly. He completed 2 years, 6 months, and 10 days of active duty service. In addition to his marksmanship qualification badges, he was awarded or authorized the Purple Heart, Vietnam Service Medal with two bronze service stars, and Republic of Vietnam Campaign Medal with Device (1960). 11. There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 12. The applicant's record is void of documentation that shows he was treated for an injury or an illness that warranted his entry into the Physical Disability Evaluation System (PDES). Additionally, there is no indication he was issued a permanent physical profile or underwent a medical evaluation board (MEB) or a physical evaluation board (PEB). 13. In the processing of the applicant's previous case, a staff medical advisory opinion was obtained wherein the psychologist made the following comments and conclusions based on the available personnel and medical records: a. The applicant had a pattern of misconduct that existed prior to his service in Vietnam and continued throughout his military service. b. The applicant did not provide a diagnosis of PTSD. He contends that his PTSD was undiagnosed based on his service in Vietnam. The applicant's service medical records show his separation medical examination revealed he was depressed with worry that was connected to his military service. c. The applicant's commander requested a psychiatric evaluation which failed to show any neurosis or psychosis. The totality of the evidence is that the applicant did not, at the time of his discharge, have symptoms consistent with a diagnosable psychiatric condition and was not expressing symptoms consistent with having PTSD. d. The applicant met medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness). His medical condition was considered at the time of discharge. e. A review of the available documents did not reveal evidence of mental health considerations that are sufficient to warrant changing the characterization of his discharge. A nexus between the applicant's misconduct and his mental health was not discovered. 14. On 19 December 2016, a copy of the advisory opinion was sent to the applicant for comment or rebuttal. He did not respond. 15. The applicant provides evidence showing he has a 70 percent service-connected disability rating for PTSD for treatment purposes only. 16. He also provides a letter from his former spouse attesting to the change in his behavior after his return from Vietnam. The former spouse's letter is available for the board's review and consideration. 17. In reference to the applicant's request to restore his rank, evidence shows the applicant was reduced in rank by NJP and a court-martial. There is no evidence showing he was promoted again prior to his discharge. 18. The applicant is applying to the ABCMR requesting a discharge upgrade contending that the misconduct which resulted in his Undesirable Discharge was due to PTSD he developed while deployed to the Republic of Vietnam. The Agency psychiatrist was asked to review this request. Documentation reviewed includes the applicant’s DD Form 149 and supporting documents and his military separation paperwork. Additionally, the VA electronic medical record (JLV) was reviewed. The military electronic medical record (AHLTA) was not reviewed as it was not in use during the applicant’s period of service. No hard copy military medical records or civilian medical documentation was provided for review. a. Review of the applicant’s military documentation indicates that the applicant received the following non-judicial punishment (NJP): 6 April 1967-violated a weekend pass; 4 May 1967-absent from unit for 2 hours; 19 September 1967-failing to report; 12 November 1968-absent without authority; 5 March 1969-failing to report. The applicant was convicted by Special Courts-Martial on the following occasions: 5 August 1967-being absent without proper authority; 26 January 1968-failiing to obey a lawful order; 25 March 1969-breaking restriction. b. Review of the applicant’s separation medical documentation indicates that the applicant underwent a psychiatric clearance under the provisions of Army Regulation 635-212, dated 28 March 1968, which indicated that he showed no evidence of neurosis or psychosis, had no disqualifying mental defects and was mentally responsible, able to distinguish right from wrong, able to adhere to the right and had the mental capacity to understand and participate in board proceedings. A DA Form 2496 (Disposition Form), Medical Statement, dated 24 April 1969, stated that the applicant was physically and mentally fit for duty without profile limitations. c. Review of the VA electronic medical record (JLV) indicates that the applicant is 70% service connected for treatment purposes only for PTSD. His Initial Post Traumatic Stress Disorder-DSM V Disability Benefits Questionnaire, dated 20 December 2017, indicates that the applicant meets the DSM-V criteria for PTSD. The examining psychiatrist writes the following: “ A close reading of the medical record does not contain any suggestion or explanation as to how a veteran could have been awarded combat decorations in September 1968 and yet by 6 November 1968 was found AWOL and subsequently court-martialed. It is noted that the veteran did NOT give any statement in his own defense, but plead guilty to all charges. Neither did he receive legal counsel, by his own choosing. This interviewer concluded that the veteran was traumatized, noted in the Medical Exam of 22 April 1969 by Hal Crawford, M.D., because of the notation that he was wounded in VN with shrapnel to the right side of his body, (hip and foot) and that he had documented "depression and worry connected with military service." Insufficient attention has been paid to this notation, which documents a level of distress that could account for his subsequent behavior. Also, in the ABCMR Record of Proceedings of his court-martial, the psychiatric exam (conducted by a social worker, Lee Johnson) found that the veteran had a "pattern of misconduct that continued through his service." Further, the social work officer, Lee Johnson, stated that the veteran "cannot perform his duties that he cannot get along with fellow workers, and that constant supervision is necessary in order for the EM to perform his duties." One might wonder how such a deteriorated SM could have performed courageously in combat, so much so that he was decorated at age 18. Furthermore, the "pattern of misconduct" that is noted, contains only two examples: (1) he violated the 60-mile regular weekday pass limitation on 6 April 1967 and that (2) he was absent from his unit for two hours between 7:30 and 9:30 a.m. Finally, on 1-09-17, this veteran screened positive for PTSD. d. Therefore, after reviewing all the available information and in accordance with the liberal consideration guidance, it is the opinion of the Agency psychiatrist that the applicant has a behavioral health condition, combat-related PTSD, which mitigates his post-deployment misconduct. 19. Army Regulation 635-212, in effect at the time, established policy and prescribed procedures and guidance for eliminating enlisted personnel who were found to be unfit or unsuitable for further military service. Members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. An individual separated by reason of unfitness would be furnished an Undesirable Discharge Certificate, except than an Honorable or General Discharge Certificate could be awarded if the individual being discharged had been awarded a personal decoration or if warranted by the particular circumstances in a given case. 20. Army Regulation 635-40 (Disability Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting separation for disability. 21. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. 22. Title 38, USC, Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 23. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the VA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 24. In reaching its determination, the Board can consider the applicant's petition, his statement and service documents, in light of the published Department of Defense guidance on equity, injustice, or clemency. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that partial relief is warranted. 2. The Board concurred with the Agency psychiatrist's conclusion that the applicant has a behavioral health condition, combat-related PTSD, which mitigates his post- deployment misconduct. In light of the published Department of Defense guidance on equity, injustice, or clemency, the Board determined the evidence supports upgrading the characterization of his service to under honorable conditions (general). 3. Regarding reinstatement of his rank, the Board found insufficient evidence of mitigating circumstances that would support a recommendation for relief. The applicant's misconduct was punished, in part, by reductions in rank, and the Board determined the reductions were not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant partial amendment of the ABCMR’s decision in Docket Number AR20160004890, dated 18 July 2017. 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 to show his service was characterized as under honorable conditions (general). 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to restoring his rank. 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. REFERENCES: 1. Title 10, United States 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 ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 635-212, in effect at the time, established policy and prescribed procedures and guidance for eliminating enlisted personnel who were found to be unfit or unsuitable for further military service. Members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness. An individual separated by reason of unfitness would be furnished an Undesirable Discharge Certificate, except than an Honorable or General Discharge Certificate could be awarded if the individual being discharged had been awarded a personal decoration or if warranted by the particular circumstances in a given case. 3. Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. a. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate. Where there were infractions of discipline, the extent thereof was considered, as well as the seriousness of the offense(s). A member was not necessarily denied an honorable discharge solely by reason of a specific number of convictions by court-martial or actions under Article 15, Uniform Code of Military Justice (UCMJ). b. 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. 4. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 5. Army Regulation 635-40 establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 6. 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 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 applicant's 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 DRBs and 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 type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards 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. 9. Title 38, U.S. Code, section 1110 (General – Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 10. Title 38, U.S. Code, section 1131 (Peacetime Disability Compensation – Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180012247 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1