IN THE CASE OF: BOARD DATE: 14 July 2022 DOCKET NUMBER: AR20210016169 APPLICANT’S REQUEST: The applicant requests reconsideration of the previous Army Board for Correction of Military Records (ABCMR) decision promulgated in Docket Number AC74-03363B on 16 August 1989. Specifically, the request is that his undesirable discharge (UD) be upgraded to honorable with a medical discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * private psychiatric evaluation and opinion FACTS: 1. Standard of Review. When arriving at its findings and making its determinations, the Board shall review the petition for requested relief independent from any previous petitions submitted to the Army Review Discharge Board or the Army Board for Correction of Military Records (ABCMR). 2. The applicant defers statements to his counsel. Counsel states the veteran developed schizophrenia while in Vietnam which affected his ability to make reasonable decisions, his judgment was impaired and his sense of reality was distorted. The attached report from Dr. explains that this is an error and that according to the Kurta memo, the applicant would be entitled to an honorable medical discharge so that he can get full benefits from the Department of Veterans Affairs (VA). 3. On the applicant's application, it is indicated that post-traumatic stress disorder (PTSD) was a contributing and/or mitigating factor in the circumstances that resulted in the applicant's separation. 4. The applicant enlisted in the Regular Army for 3 years on 16 June 1969. He served in Vietnam from 15 February 1970 until 21 September 1970 as a telephone switchboard operator. 5. The applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice on the following dates for the indicated offenses: * 17 March 1970, for on or about 14 March 1970, failure to obey a lawful order by being in an off-limits area and resisting lawful apprehension * 12 June 1970, for on or about 0630 hours, 10 June 1970 failure to obey a lawful order to report for switchboard duty * 4 July 1970, for 0900 hours 12 June 1970 failure to obey a lawful order to report for switchboard duty * 11 August 1970, for being absent without leave (AWOL) from on or about 1730 hours 9 August 1970 until on or about 0730 hours 10 August 1970 * 9 September 1970, for being AWOL from on or about 1700 hours, 25 August 1970 until on or about 0830 26 August 1970; on or about 1700 hours, 8 September 1970, failure to obey a lawful order from a commissioned officer, and on or about 1200 hours, 9 September 1970 breaking restriction 6. The complete facts and circumstance surrounding the applicant's discharge are not available. The applicant's complete discharge packet is not filed in the official military personnel file (OMPF). 7. On 11 September 1970, the applicant's company commander notified the applicant that he was initiating separation proceeding under Army Regulation (AR) 635-212 (Personnel Separations-Unfitness and Unsuitability). In that notification it was stated that statements from the applicant's platoon leaders and platoon sergeants, a report of psychiatric examination, and a report of physical examination were enclosed; however, copies of these items are not of record. The applicant acknowledged the proposed action and waived his rights to a board of officers' review and to submit a statement on his own behalf. 8. On 22 September 1970, the separation authority approved the discharge and directed the applicant be issued an Undesirable Discharge Certificate, DD Form 258A, and his reason and authority for separation be shown as AR 635-212, paragraph 6a(4), SPN 28B. 9. The separation authority directed the applicant be discharged under the provisions of paragraph 6a(4) which referred to separation for shirking; however, he directed that the SPN 28B be utilized which is for unfitness. The company commander's recommendation does not include a reference to shirking. 10. The applicant was discharged on 1 October 1970. His DD Form 214 (Report of Transfer or Discharge) shows: * he was discharged in the rank/grade of private/E-1 * the reason and authority for separation was "AR 635-212, SPN 386" (Shirking) * he had 1 year, 3 months and 9 days of creditable service with 7 days of lost time * he had 7 months and 17 days of service in Vietnam * his characterization of service was "under other than honorable conditions" with the issuance of a DD Form 258A (Undesirable Discharge Certificate) * his awards are shown as the National Defense Service Medal, Vietnam Service Medal and the Republic of Vietnam Campaign Medal with 60 Device. 11. The DA Form 20 (Enlisted Qualification Record) shows he qualified as a sharpshooter with the M-14 rifle and as an expert with the M-16 rifle. He served in Vietnam during one campaign period. 12. The Army Discharge Review Board (ADRB) denied the applicant's requests on 14 June 1971 and 18 February 1981. In concert with the second ADRB review, the records were reviewed by The Office of the Surgeon General. The consultant staff stated there was no evidence to indicate the former service member was schizophrenic, medically unfit, or was not mentally responsible for his behavior while in the Army. It was opined that the former service member was medically fit for retention or appropriate separation at the time. 13. The medical records submitted in concert with the applicant's ABCMR request (AC74-03363B) disclosed, in pertinent part, that on 8 December 1970 the applicant was taken to a community mental health center on a semi-emergent basis because he had been smoking marijuana and was showing a somewhat bizarre type of affect. During the intake interview it was disclosed that when he returned home from Vietnam he frequently talked to himself and laughed and cried to himself but would not respond to directed questions. He started using marijuana in Vietnam because he was bored and everyone was smoking it. He felt he could control his desire for marijuana. He enjoys smoking it now as well as he did in Vietnam. It was indicated he appeared as if he might be schizophrenic. Available records showed the former service member was under continuous psychiatric treatment until 29 July 1978. His appointments for 6 September 1978 and 26 April 1979 were not kept. The Medication order sheet indicates the applicant was provided medication through 31 May 1978. The applicant was diagnosed as suffering from schizophrenia on 19 September 1972. 14. Counsel submitted an 18-page report from Dr. a licensed clinical psychologist, dated 3 June 2020. In his evaluation of the applicant Dr. opined: a. The applicant was experiencing the early signs and symptoms of schizophrenia in Vietnam, which resulted in his behavior changes, his impairments in judgment, and his lack of awareness or concern for his actions. These schizophrenic behaviors and symptoms resulted in his absences, disobeying a lawful order, being in an off-limits area and resisting apprehension. b. His schizophrenic behavior and symptoms were obviously noted by others and he had a psychiatric exam while in service. c. His schizophrenic symptoms and behavior further deteriorated resulting in a severe suicide attempt in 1970 or 1971, and several psychiatric hospitalizations. d. Due to the Veteran's development of schizophrenia while in Vietnam, he believed the applicant's offenses and AWOL were directly due to his inability to make reasonable decisions, his judgment was impaired, his sense of reality was distorted. His military conduct and performance de­teriorated while deployed to Vietnam due to the development of his schizophrenia while in Vietnam. He was even examined by a VA psychiatrist in service. e. It is his clinical opinion that the applicant must have his discharge reviewed, and changed, and upgraded to a Medical Discharge Under Honorable Conditions, which would also allow for his full military benefits to be awarded. The 2018 Kurta Memo supports his clinical findings and opinion for this Veteran. f. There is nothing in the Veteran's records that say or mention malingering, symptom exaggeration, feigning of symptoms. The Veteran's statements and complaints of his continuing impaired conditions are credible and heavily supported in his medical records. g. In my clinical opinion the applicant was experiencing the early signs and symptoms of schizophrenia in Vietnam, which resulted in his behavior changes, his impairments in judgment, and his lack of awareness or concern for his actions. These schizophrenic behaviors and symptoms resulted in his absences, disobeying a lawful order, and being in an off-limits area and resisting apprehension. His schizophrenic behavior and symptoms were obviously noted by others and he had a psychiatric exam while in service. His schizophrenic symptoms and behavior further deteriorated resulting in a severe suicide attempt in 1970 or 1971, and several psychiatric hospitalizations. h. The applicant's current symptoms are shown as: * Depressed mood * Anxiety * Suspiciousness * Chronic sleep impairment * Mild memory loss * Flattened affect * Speech intermittently illogical, obscure, or irrelevant * Difficulty understanding complex commands * Impaired judgement * Impaired abstract thinking * Gross impairment in thought process or communication * Disturbances of motivation and mood * Difficulty in establishing and maintaining effective work and social relationships * Difficulty adapting to stressful circumstances, including work/work-like settings * Inability to establish and maintain effective relationships * Suicidal ideation * Persistent delusions or hallucinations * Grossly inappropriate behavior * Neglect of personal appearance and hygiene * Intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene i. Dr. rendered the diagnosis that the applicant was suffering from schizophrenia, noting this diagnosis was first rendered within two months of the applicant's discharge and had in his opinion there were manifestations while the applicant was on active duty. j. Dr. also answered the questions posed under the provisions of the Under Secretary of Defense (Personnel and Readiness) clarifying guidance to Service DRBs and Service BCM/NRs on 25 August 2017 [Kurta Memorandum]. k. There is no indication of a possible diagnosis of PTSD in his report in the report. 15. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 16. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. His hardcopy medical record was not available for review. A review of Department of Veterans Affairs (VA’s) Joint Legacy Viewer indicates the applicant has not been evaluated nor treated in the VA system. He does not have a service connected disability rating. Review of his civilian treatment records indicates he was prescribed antipsychotic medication in 1970 by a civilian doctor. A treatment plan dated 19 September 1972 indicates the applicant reported seeing “smoke coming up from the ground and started hearing voices.” He stated he was hearing voices while in Vietnam that told him to go AWOL. He stated he wandered around the U.S. for several months after his discharge before ending up back in Louisiana. He did not remember where all he traveled. He was diagnosed with schizophrenia, paranoid type. There is documentation to support behavioral health diagnosis at the time of his discharge. It is possible that the applicant was in the prodromal stage of schizophrenia at the time of his service. His condition is a mitigating factor for the conduct issues that led to his discharge. Recommend referral of his case to the Disability Evaluation System (DES) for their review and consideration regarding disability. * Did the applicant have a condition or experience that may excuse or mitigate the discharge? Yes. * Did the condition exist or experience occur during military service? Yes. * Does the condition experience actually excuse or mitigate the discharge? Yes. * Does the condition or experience outweigh the discharge? Yes. BOARD DISCUSSION: 1. The Board carefully considered the applicant's request, supporting documents, evidence in the records, a medical review, 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. The Board considered the applicant's behavioral health claim and the review and conclusions of the ARBA Medical Advisor. 2. The Board concurred with the conclusion of the ARBA Medical Advisor and determined this case should be referred to the DES to determine if the applicant had a condition that warranted his separation or retirement for disability. 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 the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring his records to the Disability Evaluation System for review to determine if he should have been separated or retired for disability. a. The individual concerned will be afforded due process through the Disability Evaluation System for consideration of any additional diagnoses identified as having not met retention standards prior to his discharge. b. If a formal Physical Evaluation Board (PEB) becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made after completion of the formal PEB. c. Should a determination be made that the applicant should be separated or retired for disability, these proceedings serve as the authority to issue the appropriate separation retroactive to the original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 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 any relief without benefit of the review described above. 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 State Code, section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 2. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability. Paragraph 6a of the regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed: (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and (6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments). When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. 4. AR 635-5-1 (Separation Codes), in effect at the time, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the Separation Program Number (SPN) to be entered on the DD Form 214. The regulation stated the SPN 386 was the appropriate code to assign Soldiers separated because of unfitness due to an established pattern of shirking. SPN 28B was to be utilized for separations for frequent incidents of a discreditable nature with civil or military authorities. 5. AR 635-200 (Personnel Separations Active Duty Enlisted Administrative), superseded AR 635-212. It provides at: a. Paragraph 3-7a states that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. c. Paragraph 3-7c provides for a discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable. It may be issued for misconduct, fraudulent entry, homosexual conduct, security reasons, or in lieu of trial by court martial in the following circumstances: (1) When the reason for separation is based upon a pattern of behavior that constitutes a significant departure from the conduct expected of Soldiers of the Army. (2) When the reason for separation is based upon one or more acts or omissions that constitutes a significant departure from the conduct expected of Soldiers of the Army. 6. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. a. Paragraph 3-1, provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating. b. Paragraph 3-2b(1), provides that 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 they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. c. Paragraph 3-2b(2), provides that when a member is being separated by reason other than physical disability, their continued performance of duty creates a presumption of fitness. The presumption of fitness can be overcome only by clear and convincing evidence that they were unable to perform their duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendering the member unfit. d. Paragraph 3-4 states that in order to be eligible to receive retirement and severance pay benefits the disability must have been incurred or aggravated as the proximate cause of performing active duty. 7. 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. 8. 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 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. 9. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military 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. 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, 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210016169 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1