ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 June 2019 DOCKET NUMBER: AR20190000298 APPLICANT REQUESTS: Correction of her deceased father's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be upgraded from, under other than honorable conditions (UOTHC) discharge to, under honorable conditions (general) discharge. 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) * 146 pages of her deceased father's [former service member (FSM)] medical documentation and third party character statements that substantiate post-traumatic stress disorder (PTSD) * FSM's State of Florida Certification of Death FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code (USC), Section 1552 (b); however, the Army Board for Correction of Military Records (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 the veteran [her father] was listed as being absent without leave (AWOL); in effect, he was dealing with undiagnosed PTSD and this was the reason he was AWOL. She further states: * her father was a Vietnam war veteran that received a Bronze Star and other honors for meritorious conduct on the battle field * her father passed away from the same brain cancer that afflicted John McCain * her father tried for many years to get an upgrade for his service record because he served honorably * her father dealt with undiagnosed PSTD for years, until a Department of Veterans Affairs (VA) psychiatrist recognized his medical condition * his PTSD effected the entire family and made it a living nightmare * she was diagnosed with secondary PTSD from what her father put her through dealing with his PTSD * she doesn’t have the quality of life she should due to depression and anxiety * she doesn’t have friends and she don’t go out in crowds * It hurts her deeply that her father didn’t get the proper help that he needed due to his discharge * her father deserved better, he deserved respect – all he ever wanted was dignity, respect, and honor 3. The FSM enlisted in the Regular Army on 14 December 1964. He completed his initial entry training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman). He later completed the Basic Airborne Course. 4. The FSM served in the Republic of Vietnam from on or about 11 June 1965 through on or about 10 June 1966. For his service he was awarded or authorized the following: * National Defense Service Medal * Vietnam Service Medal with bronze service star * Republic of Vietnam Campaign Medal with Device (1960) * Republic of Vietnam Gallantry Cross with Palm Citation * Presidential Unit Citation * Meritorious Unit Commendation * Combat Infantryman Badge * Parachutist Badge 5. Before a special court-martial on or about 24 January 1967, at Fort Benning, Georgia, the applicant was convicted of being AWOL from on or about 6 September 1966 through on or about 8 December 1966 and again on or about 19 December 1966 through on or about 27 December 1966. He was sentenced to confinement at hard labor for three months, reduction in rank/grade to private/E-1, and forfeiture of $50.00 pay per month for three months. The sentence was approved on 27 January 1967. 6. Before a special court-martial on or about 5 September 1967, at Fort Benning, Georgia, the applicant was convicted of being AWOL from on or about 12 May 1967 through on or about 19 June 1967. He was sentenced to confinement at hard labor for six months, reduction in rank/grade to private/E-1, and forfeiture of $86.00 pay per month for six months. The sentence was approved on 8 September 1967. 7. The FSM's record contains a Standard Form (SF) 88 (Report of Medical Examination) that shows the FSM underwent a physical examination on 13 September 1967. The SF 88 contains the following notes: a. With respect to item 42 (Psychiatric), "#42 Psychiatric evaluation, no disease found. IND. See item #75." b. Item #75 (Recommendations – Further Specialist Examinations Indicated (Specify)) contains the entry: "There are no mental or physical defects which warrant medical disposition." 8. The FSM's record contains only a portion of his separation packet. However, his DD Form 214 shows he was discharged on 1 November 1967, under the provisions of Army Regulation 635-212 (Personnel Separations – Unfitness and Unsuitability), Separation Program Number (SPN) 28B [Unfitness]. His service was characterized as UOTHC. 9. It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant has provided no information that would indicate the contrary. 10. The applicant provides over 146 documents which attest to the following: a. Medical exams, medial history, psychological evaluations, and medical statements that confirm the FSM suffered from PTSD. b. Court Affidavits that support the applicant's contention that the FSM legally suffered from PTSD. c. Character statements from fellow comrades in arms that attest to the FSM serving in Vietnam, where he witnessed his best friend get killed in front of him. They note the FSM suffered emotionally from his friend's death and that life after the military was not easy for the FSM. 11. In the processing of this case, an advisory opinion was obtained on 26 March 2019 from the Army Review Boards Agency Senior Medical Advisor/Staff Psychiatrist, who opined: a. While Mr. [Applicant] has been diagnosed with combat-related PTSD by both civilian psychiatrists and VA medical personnel, his military records lack documentation of any PTSD symptoms. This fact, however, does not necessarily mean that he did not have PTSD while on active duty. In the era of Mr. [Applicant]'s military service, PTSD symptoms were frequently not recognized. Oftentimes, in such cases, the presence of PTSD has to be inferred from behavioral indicators. Such is the case with Mr. [Applicant]. Review of his military records indicates that Mr. [Applicant]'s periods of AWOL occurred after he returned from his first tour of duty in Vietnam. Medical documentation provided by the applicant's daughter clearly indicates that Mr. [Applicant] was suffering from severe PTSD during this time. When told he would be returning to Vietnam for a second tour, he decompensated psychologically and absented himself without leave. Such behavior is commonly seen in PTSD wherein the PTSD sufferer engages in avoidant behaviors in order to escape confronting his PTSD-associated traumatic stressors. In this case, combat was the traumatic stressor. b. In conclusion, based on the available information and in accordance with the 2014 Liberal Guidance memorandum, it is the opinion of the Agency psychiatrist that Mr. [Applicant] had a mitigating Behavioral Health condition – PTSD. As PTSD is associated with avoidant behaviors, there is likely an association between the FSMs diagnosis of PTSD and his offenses of being AWOL. c. In accordance with the 3 September 2014 Secretary of Defense Liberal Guidance Memorandum, Mr. [Applicant]'s VA and civilian diagnoses of PTSD provide sufficient evidence to support Mr. [Applicant]'s daughter's contention that Mr. [Applicant] developed combat-related PTSD while on active duty. Mr. [Applicant]'s military records indicate that he DID meet military medical retention standards IAW AR 40-501. Mr. [Applicant]'s diagnosis of PTSD IS a mitigating factor in the misconduct that resulted in his discharge from the military. 12. A copy of the advisory opinion was forwarded to the applicant on 28 March 2019, for information and to allow her the opportunity to submit comments or a rebuttal. She did not respond. 13. The Board should consider the applicant's statement and the FSM's PTSD diagnosis and supporting medical documentation in accordance with the published liberal consideration and equity, injustice, or clemency determination guidance. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents, evidence in the records, the advisory opinion and published DoD guidance for liberal consideration of discharge upgrade requests. The Board discussed the Soldier’s record to include his Vietnam service, the frequency and nature of his misconduct, his post- service PTSD diagnosis and the conclusions of the advising official regarding his meeting medical retention standards but having a mitigating condition for the misconduct. The Board determined that liberal consideration applies in the case and that his character of service should be upgraded as requested. The Board expresses their thanks to the applicant for her Father’s service. 2. After reviewing the application and all supporting documents, the Board determined that relief was warranted. 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 amending his DD Form 214 for the period of service ending 1 November 1967 to show his Character of Service as General, under honorable conditions. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. 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 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 635-212, in effect at the time, set forth the policy and prescribed procedures for discharging enlisted personnel for unsuitability. Action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that: the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability. Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality. Evaluation by a medical officer was required and, when psychiatric indications are involved, the medical officer must be a psychiatrist, if one was available. A general or honorable discharge was considered appropriate. 3. The Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs), on 3 September 2014, 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. 4. The Secretary of Defense provided clarifying guidance to Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) on 25 August 2017. The memorandum directed them to give liberal consideration to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD, TBI, sexual assault, or sexual harassment. a. Guidance documents are not limited to UOTHC discharge characterizations but rather apply to any petition seeking discharge relief including requests to change the narrative reason, re-enlistment codes, and upgrades from general to honorable characterizations. b. An honorable discharge characterization does not require flawless military service. Many veterans are separated with an honorable characterization despite some relatively minor or infrequent misconduct. c. Liberal consideration does not mandate an upgrade. Relief may be appropriate, however, for minor misconduct commonly associated with mental health conditions, including PTSD; TBI; or behaviors commonly associated with sexual assault or sexual harassment; and some significant misconduct sufficiently justified or outweighed by the facts and circumstances. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records 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. a. 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, Boards 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. b. 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. ABCMR Record of Proceedings (cont) AR20190000298 6 1