IN THE CASE OF: BOARD DATE: 15 March 2022 DOCKET NUMBER: AR20210008740 APPLICANT REQUESTS: That his under other than honorable discharge be changed to a medical discharge. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), dated 28 October 2016 with supporting documents * Letter from Lieutenant Colonel Commander, Headquarters (HQ) and Headquarters Detachment, 3d Infantry, 1st Basic Combat Training Brigade (BCT Bde), Fort Jackson to the applicant’s mother, dated 17 April 1971 * DA Form 188 (Extract Copy of Morning Report), Company A, 3d Battalion, 1st BCT Bde, dated 14 July 1971, concerning the applicant showing Absence Without Leave (AWOL) on 17 April 1971, and Dropped from the Rolls (DFR) on 16 May 1971 * Special Orders Extract, HQ, United States Army Training Center (USATC), Infantry, and Fort Ord California, relieving the applicant from attached to and then assigning him to the United States Personnel Control Facility, USATC, Infantry, Fort Ord, California * Page one, paragraphs 1-5, memorandum, subject: Request for Discharge for the Good of the Service (concerning the applicant), dated 3 November 1981 * AGPERCEN Form 85 (Request for Absentee Records), telephone record addressed to the National Personnel Records Center, St. Louis, Missouri, requesting the applicant’s medical records showing that they were provided to the telephone record, from the Commanding Officer, AGPERCEN, Fort Harrison to HQ Commandant, Fort Ord, dated 3 November 1971 * VA Form 07-3101a (Veterans Administration (VA) Request for Information) addressed to the National Personnel Records Center, St. Louis, Missouri, requesting the applicant’s medical records showing that they were provided to the VA on 14 September 1978 * Page three, memorandum, subject: Request for Discharge for the Good of the Service (concerning the applicant), applicant’s statement, subscribed and sworn 5 November 1971 * Page two, paragraph 6 and signatures, subject: Request for Discharge for the Good of the Service, (concerning the applicant), dated 5 November 1981 * Letter, Department of Veterans Affairs, subject: claim for veteran’s benefits denied, dated 21 July 1992 * AF Form 807 (Receipt for Prisoners Personal Property), dated 27 October 1971, March Air Force Base, California * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), for the applicant, 7 December 1971, Under other than Honorable Conditions * Letter from civilian DDS B, dated 21 March 1979 * Letter from civilian DDS M, dated 15 May 1980 * VA Medical Record page dated 24 March 1994 * HIRE Evaluation from MD P, dated 6 December 1995 * Applicant’s supplemental statement with supporting document dated 1 June 2017 * Applicant’s supplemental statement with supporting document dated 28 May 2018 * Applicant’s supplemental statement with supporting documents dated 2 June 2018 * Applicant’s supplemental statement with supporting documents dated 6 August 2018 * Applicant’s supplemental statement with supporting documents dated 10 August 2018 * Applicant’s supplemental statement with supporting documents dated 25 October 2018 * Applicant’s supplemental statement with supporting documents dated 1 November 2018 contending PTSD * Psychological Evaluation, Mental Health Services of Clark County, 12 August 1992 * Medical Sufficiency Statement, Headquarters Air Force Material Command, Wright Patterson Air Force Base, 10 February 1994 * Psychological Evaluation, Mental Health Services of Clark County, 1 February 1995 * Neuropsychological Evaluation, Miami Valley Hospital, Dayton, Ohio, 28 August 1995 * Neuropsychological Report, Wexner Medical Center, Ohio State University, 4 January 2017 * CT Scan Report, Wexner Medical Center, Ohio State University, 24 October 2018 * Letter, Mid Valley Oral Surgeons, Salem, Oregon, 21 March 1979 * Applicant’s supplemental statement with supporting documents dated 15 February 2019 * Applicant’s supplemental statement with supporting documents dated 29 May 2019 * Applicant’s supplemental statement with supporting document dated 29 July 2019 * Applicant’s supplemental statement with supporting document dated 31 July 2019 * Applicant’s supplemental statement with supporting documents dated 11 October 2019 * Applicant’s supplemental statement with supporting documents dated 22 April 2021 * Applicant’s supplemental statement with supporting documents dated 21 June 2021 * Applicant’s supplemental statement with supporting documents dated 25 June 2021 * Applicant’s supplemental statement with supporting documents dated 13 December 2021 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 case number AC89-06710 on 4 April 1990 denied by the board; and AC91-06343 on 27 November 1991 denied for reconsideration finding that the evidence submitted provided no basis to reconsider his case or to correct his records. Also considered herein by reference are the military records which were summarized in the previous consideration of the is the applicant’s case by the Army Discharge Review Board (ADRB) in case number AD81-07327on 24 September 1981 which denied the applicant’s request for upgrade of his under other than honorable discharge. This case record is included in the records of ABCMR case AC89-06710. 2. Application and evidence submitted under ABCMR case AR20170000156, which as administrative closed, is combined with evidence submitted under this case number AR2021000874 and will be considered together. 3. The applicant’s military records show the following: a. 2 February 1971 - enlisted in the Army Reserve (USAR) for 6 years Delayed Entry Program at the age of 17 with parental consent. Received a medical examination at the Armed Forces Examination and Entrance Station, Raleigh, NC, which found him medically qualified for enlistment with the only defects being mild spin scoliosis and moderate pes planus (flat feet). These were within acceptable norms for military service. b. 26 March 1971 – discharged from the USAR and enlisted on the United States Army for 3 years with the Buddy Basic Plan and the 82d Airborne options c. 26 March 1971 – assigned to Fort Jackson to begin Basic Combat Training (BCT) on 29 March 1971 d. 2 April 1971 – assigned to Co A, 3rd Battalion, 1st Basic Combat Brigade, U.S. Army Training Center, Infantry, Fort Jackson e. 7-12 April 1971 – applicant was AWOL (see DA Form 20 and applicant’s corroborating Chapter 10 discharge statement) f. 12 April 2017 – the applicant reported that he was assaulted by other Soldiers; based a letter from the Brigade Command, Fort Jackson, to the applicant’s mother dated 17 April 2017 g. 17 April 1971 – a letter from the Commander, Headquarters and Headquarters Detachment, 3rd Battalion, 1st Basic Combat Training Brigade, Fort Jackson, to the applicant’s mother is states: “Since your departure from Fort Jackson, [Name of Applicant] has completed 2˝ days of training, and appears to be adjusting well. I last talked to him today and he indicates he is getting along fine. I have asked his Company Commander to advise me, should it appear [Name] is having difficulty”. "For his AWOL, [Name] was fined $35.00 per month for two months. His fine will be deducted from his pay over the next two pay periods. I felt that the fine was sufficient and that without restriction or extra duty he would have a better opportunity to adjust in his new company.” “Investigation of the assault on [Name] has been completed. The Investigating Officer took sworn testimony from many individuals in an attempt to find an eye witness to the assault. In addition, [Name] was given an opportunity to identify his assailant. Positive identification could not be made and there was insufficient evidence to substantiate who committed the assault.” “I will continue to closely monitor [Name] progress and if I may be of further assistance, please feel free to write.” h. 17 April 1971 – the applicant went AWOL at 1200 hours and on 16 May 1971 – the applicant was dropped from the rolls. i. 27 October 1971 – the applicant was apprehended by civil authority in Upland, CA, and returned to military control at March Air Force Base (AFB), CA (also see Receipt for Prisoner Personal Property, March AFB, dated 27 March 1971) ; on 29 October 1971, he was transferred to the Provost Marshall (PMO) at Fort MacArthur, CA; on 2 November 1971, he was transferred Personnel Control Facility at Fort Ord, CA, and placed in confinement in the Post Stockade by Fort Ord Special Orders 3 dated 3 November 1971 . j. 3 November 1971- the applicant was charged with AWOL specified as follows: “In that [Applicant], US Army Personnel Control Facility, US Army Training Center, Infantry and Fort Ord, CA - then a member of Company A, 3rd Battalion, 1st Brigade, Fort Jackson, SC, did, on or about 17 April 1971, without authority, absent himself from his organization, to wit: Company A, 3rd Battalion, 1st Brigade located at Fort Jackson, SC, and did remain so absent until on or about 27 October 1971.” k. 5 November 1971 – the applicant requested discharge under chapter 10, For The Good of the Service. He was afforded counsel and advised of his rights. By his signature he signed that he understood that if his request for discharge is accepted, he may be discharged under other than honorable conditions and furnished with an Undesirable Discharge Certificate. He understood that as a result the issuance of such a discharge, he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both State and Federal Law. He also understood that he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge. He agreed by his signature that he was advised of the basis for his contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, of the effects of this discharge, and of the rights available to him, and personally made the choices indicated in the foregoing request for discharge. l. He submitted a signed statement with his request for chapter 10 discharge that stated: “I (the applicant’s name) request a discharge for the good of the service under the provisions of AR 635-200, Chapter 10. I enlisted on 26 Mar 71 for 3 years. I now have 1 month good time and 7 months bad time. I had 1 article 15 for 1 week AWOL. I am not pending charges for an AWOL of 6 ˝ months from Fort Jackson. I can't adjust to military life. If I don't get out, I will go AWOL again.” m. 2 December 1971 – the commanding general approved his request and directed that he be discharged under chapter 10 with an under other than honorable discharge, and reduced to the lowest grade. n. 7 December 1971 – the applicant was so discharged and issued a DD Form 214 that shows that he had lost time of 5 days from 7 to 11 April 1971 for AWOL, 193 days from 17 April to 26 October for AWOL, and 18 days from 3 to 20 November 1971 for confinement. The DD Form 214 also shows that he had 1 month 6 days net service between 26 March 1971 and 7 December 1971. o. 7 December 1971 – the applicant signed a statement of medical condition that he had a separation physical on 10 November 1971 and that there had been no change in his medical condition since then. The 10 November 1971 separation physical is not in his military record. He filled out a SF Form 93, Medical History, for his separation physical on 10 November 1971 stating that he was in good health, and checked that he had frequent or severe headaches and had nervous trouble of any sort, which was different than his SF Form 93. Medical History that he filled out for his entrance physical on 2 February 1971. On his 10 November 1917 SF Form 93, in box 20, he checked “No” that he had not had any injury and in box 11 that he had not had any broken bones. On 10 November 1971, the examining physician signed the medical history not finding any medical conditions requiring further notation. p. 24 September 1981 – the applicant applied to the ADRB for a discharge upgrade. The ADRB stated that after careful consideration of his military records and all other available evidence, determined that he was properly discharged and denied his request to change the type and nature of his discharge. (1) The ADRB noted that the applicant went AWOL for four in days in his second week of Basic Combat Training at Fort Jackson. He was returned by his mother to the base. The applicant alleged that he was then assaulted by his platoon leader on the day of his return, that although he identified the assailant, the Army covered it, up causing him to again go AWOL again. The record reflects in a letter from the battalion commander to applicant’s mother concerning his Article 15 punishment, and an investigation failed to identify the assailant. It also states applicant could not make a positive identification of his assailant and there was insufficient evidence to substantiate who committed the assault. There is an indication that applicant was placed in a new company, but his ensuing six-month AWOL is shown as having been from his original company. The applicant was apprehended in California and requested discharge at the Ft. Ord Personnel Confinement Facility. As noted in part 1V, section A, of his request for discharged under chapter 10, he threatened further AWOL if he was not discharged. The discharge was properly executed. In letters subsequently written applicant, he alleges facial problems associated with a broken facial bone secondary to his alleged assault. In his statement of medical history made at time of his discharge, he denied any injury and stated his health was good. (2) The applicant submitted to the ADRB a statement dated March 1, 1981, stating: “I joined the Army under the buddy system on March 21, 1971. I was discharged honorably from the Delayed Entry Program. After going through a week of basic training, my friend, (SG) decided he did not like the Army so he talked me into going AWOL with him. After being AWOL for one week my parents talked (SG) and I into going back to the Army. After arriving at Fort Jackson, SC on April 12, 1971, we went to the chaplain’s office. He instructed us to report to our company commander. When we arrived at our company, the Drill Sergeant had me go to the barracks and get my duffle bag and report back to him. I got my duffle bag and was on my way back to the Drill Sergeant, when I was approached by a black soldier, whom I believe was the platoon leader. I tried to walk around him, but he took me down to the pavement and pinned me there. That is when he started hitting me on the left side of the head, approximately twelve blows. After that he got up, then I got up and cussed him out to his face. Then I turned around and ran toward the parking lot where my mom and brother were parked. When I got in the car one of the three soldiers that were chasing me tried to pull me out of the car but my brother took off before he could. We reported the incident to the Adjutant General’s office. I wrote a statement about the assault. It happened around midday on April 12, 1971. There was an investigation conducted by the company commander. He called a formation and told me to pick out the one who had assaulted me. He told me to tell him how many rows down and across he was. I told him. Then he took me to the Dispensary. They took an X-ray of my head. Then the commander took me back to the company weapons room. There were eight black soldiers inside lined up. He told me to pick out the one who had beat me. I told that the one I had picked out in the formation was not in the lineup. He told me that would be all. So after that, I was changed from company A to company D by COL (H). After staying around for four days and not receiving any more medical treatment and knowing the Army let the assailant go scott free, I decided that my only alternative was to go AWOL again, because I could never trust the Army again especially knowing the evil they did to me. Even until this day, I have tried to get those records of the investigation that rightfully belong to me. But naturally your evil organization denies they exist. …” q. On 4 April 1990, the ABCMR considered the applicant’s request that his undesirable discharge be upgraded, and that his records be corrected to show he was injured while in the Army as a result of an assault. The board considered his contentions, his evidence, and his record and did not find sufficient evidence to justify correcting the record to provide him an upgrade of his discharge under other than honorable conditions or to change his chapter 10 for the good of the service reason for discharge. The board denied his request under case number AC89-06710. r. On 27 November 1991, the ABCMR considered his 23 September 1990 request for reconsideration of his case AC89-06710 under case number AC91-06343. The board did not find any new or compelling evidence that warranted a reconsideration of denial of his application under AC89-06710 and denied his request for reconsideration. 5. The applicant states in his DD Form 149 (Application for Correction of Military Records) for this reconsideration case: I believe the record to be in error or unjust for the following reasons: I was 17 years old when I joined the Army with a friend of mine under the buddy system. My friend decided he did not like the Army and talked me into going AWOL with him. After we were AWOL about 5 days our parents talked us into returning to the Army. Upon my return the First Sergeant told me to go to the barracks to get my duffle bag and return to the First Sergeant’s office. On my way back to the First Sergeant’s office, the platoon leader assaulted me. He pinned me to the pavement and hit me in the side of my head approximately 12 times. I escaped and ran to the car where my mother and younger brother and sister were waiting. We reported the assault to the Headquarters on the Fort at Fort Jackson, SC, but the Army covered the assault up. The Army never let me see a doctor after the assault and I eventually went AWOL again after the Army let the assailant go free. I was eventually arrested for being AWOL in CA. Evidence submitted with this application: a. LTC K’s letter to my mother dated, April 17, 1971 describing the assault. The only evidence that an assault took place because the Army destroyed the other records pertaining to the assault. b. Unsigned morning report dated July 14, 1971. c. Special orders dated November 3, 1971 assigning me to Personnel Control Facility Fort Ord, CA. The Army knew I was assaulted and rushed my discharge in violation of the pertinent Anny Regulations governing the type of discharge I was issued. I was issued a Chapter 10 discharge the Good of the Service resulting in a Discharge Under Other Than Honorable Conditions. d. I requested that discharge on November 3, 1971. Army Regulations stipulate that a soldier can request a Chapter l0 discharge for the Good of the Service after charges have been referred. Charges could not have been referred on me the same day l arrived at Fort Ord, CA. e. Request for Absentee Records from Fort Jackson, SC, dated November 3, 1971. The Army did not even have my records from Fort Jackson on November 3, 1971. The Army Regulations stipulate that I was supposed to receive 72 hours of counseling in order to understand the consequences of the type of discharge I was requesting. There simply would not have been enough time to provide me with the required amount of counseling. f. Request for Information. Army Regulations stipulate that I had to get a discharge Physical prior to being discharged. There are no Army records that I received a discharge physical prior to being discharged from the Army on December 7, 1971. g. Statement regarding request for discharge for the Good of the Service dated 5 November 1971. Army Regulations stipulate that the statement contain an admission of guilt to the preferred charges. The statement only states that charges were pending with no admission of guilt to any crime. h. Letter from the VA stating that my records show that I was in the Confinement Facility until November 20, 1971 and the paperwork was completed on December 7, 1971. i. Receipt for Prisoner's Personal Property showing I was released on November 20, 1971 with a balance of $2.23 (two dollars and twenty-three cents). 10 U.S.C, section 1168, stipulates that a member of the Armed forces may not be discharged or released from active duty until his discharge certificate or certificate of release from active duty, respectively, and his final pay or a substantial part of that pay, are ready for delivery to him or his next of kin or legal representative. 10 U.S.C., section 1169, stipulates that no regular enlisted member of an armed force may be discharged before his term of service expires, except (1) as prescribed by the Secretary concerned; (2) by sentence of a general or special court martial; or (3) as otherwise provided by law. My discharge was not prescribed by the Secretary concerned, I was not sentenced by a general or special court martial; and the Army did not follow the law and or pertinent regulations so the discharge has no legal basis. j. DD Form 214 showing that l was discharged Under Other Than Honorable Conditions. k. Doctor reports from Dr. B, Dr. M, Dr. L from the VA, and Dr. P showing my disabilities. Taken together this evidence shows that the Army has no legal basis for the type of discharge I was issued and my disabilities were just as likely as not caused by the assault described by LTC K in his letter to my mother. The only reasonable conclusion that can be drawn from the evidence is that the Army should have issued me a medical discharge instead of the illegal Under Other Than Honorable discharge they issued to me. 6. On the applicant’s supplemental statements, dated 1 November 2018 and 11 October 2019, he contends that he suffers from PTSD as a result of the assault he experienced on 12 April 1971. He provided psychological and neuropsychological evaluation reports from 1998 to 2018 to support his contention which are enumerated in the evidence list above. 7. By regulation (AR 635-40 (17 August 1970), paragraph 1-14c, “A member who is charged with an offense for which he could be dismissed or given a punitive discharge may not be referred for disability processing. However, if the officer exercising appropriate court-martial jurisdiction dismisses the charge or refers it for trial to a court- martial which cannot adjudge such a sentence, the case may be referred for disability processing. When forwarded, the records of such a case must contain a copy of the action signed by the court-martial authority who made the decision.” 8. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is again applying to the ABCMR requesting an upgrade of his 7 December 1971 discharge characterized an under conditions other than honorable and a permanent retirement for physical disability. He claims his period of absences without leave was due to a traumatic brain injury sustained during an assault. b. The Record of Proceedings details the applicant’s military service and the circumstances of the case. His DD 214 for the period of Service under consideration shows he entered the regular Army on 26 March 1971 and was discharged on 7 December 1971 under the provisions provided in chapter 10 of AR 635-200, Personnel Management – Enlisted Personnel: Discharge for the Good of the Service. The DD 214 the applicant was a trainee (09B) at the time of discharge. c. This request has been made several times. It was denied by the ADRB on 28 October 1981, and by the ABCMR on 22 August 1990, and 27 November 1991. The most recent application, (AR20170000156), was returned with action on 10 June 2020. ARBA informed the applicant: “We recently received information stating you have a pending court case pertaining to your military records. Therefore, we are closing your case without prejudice or action by the Board until we receive further guidance from the Department of Justice (DOJ).” d. Rather than repeat their findings here, the board is referred to the record of proceedings for that case. This review will concentrate on new probative evidence submitted by the applicant. In addition, specific attention will be placed on psychiatric and neurological conditions as this appears to be the first case filed after the institution of liberal consideration polices e. A review from the 1981 ABCMR memorandum of consideration: “The applicant arrived for basic training at Fort Jackson, South Carolina, and was assigned to Company A, 3d Battalion, 1st Training Brigade. He was reported as being AWOL from 7 to 11 April 1971." f. Available records show that on 17 April 1971 the battalion commander wrote a letter to the applicant's mother and stated that the investigation of the 12 April 1971 assault on her son had been completed and positive identification could not be made to substantiate who committed the assault. The letter also stated that her son had been placed in a new company. g. There are no medical records documenting the injuries or treatment received as a result of the assault. The original medical and dental records are in the applicant's file but contain little or no information. h. After he returned to military control, charges were preferred against him for being AWOL from 17 April 1971 to 27 October 1971 in violation of Article 86 of the UCMJ. After being advised of his rights, he submitted a request for discharge for the good of the service in lieu of trial by court-martial. He stated that he could not adjust to military life and he would go AWOL again if not released. Also, he stated that there had been no change in his medical condition since his last examination. The appropriate authority approved his request for discharge and directed that he be issued an Undesirable Discharge Certificate.” i. From a psychological evaluation dated 12 August 1992: (1) “The Wechsler Memory Scale was administered at this time, to obtain a recent memory quotient. A memory quotient was obtained of 64, which falls three standard deviations below the mean, for an individual his age. Where {applicant} had the most difficulty was remembering a small short story after it was read to him, being able to remember only two facts of a possible 20 to 25. He also had a difficult time remembering more than 5 digits forward. (2) This is a type of protocol generally associated with an individual with rather severe memory loss and possible neurological damage.” j. The psychologist diagnosed the applicant with “Amnestic Disorder due to Self- Reported Head Trauma.” k. From a neuropsychological evaluation on 28 August 1995: (1) “He described the incident as having occurred after he had just returned from being AWOL. He stated that after reporting to his drill sergeant he left the drill sergeant's office and was walking through a hall, when he was attacked by an individual. He said this individual forced him to the floor and beat his head onto the concrete floor approximately a dozen times. Mr. {Applicant} said he did not lose consciousness at the time although he was functioning in daily tasks for some period of time after that, for example he was unable to march with the other soldiers because he couldn't keep step, and regularly forgot to salute commanding officers. (2) ‘It set me way back. I lost everything that I had learned in school.’ When asked for a self-description, the client described himself as ‘at one time I was O.K., I had good abilities, now I can't do the things that I need to do.’ (3) The client said that he was hospitalized psychiatrically in 1973 for depression. He has had a number of periods of outpatient mental health evaluation and therapy since that time. He has formed a therapy relationship with Alan Matthews at the Clark County Mental Health Center. (4) The client's brother corroborated the client's memory and cognitive functioning problems. (5) CONCLUSIONS: Mr. [Name] showed performance ranging from mildly impaired to low Average range on tests … Also, Mr. [Name] appeared to be mildly or moderately depressed at this time, showing significant dysphoria and lack of self- esteem. The client seems to have a reasonable level of awareness of his cognitive and memory deficits, as well as his needs for supervision from family in daily living tasks as well as occupationally related tasks. (6) In summary, it appears that Mr. [Name] has mild-to-moderate cognitive impairments, particularly in verbal memory/attention, that significantly impair his daily functioning. The client's brother's account completely corroborated the client's report, and also seemed to indicate that these problems have occurred on a continuing basis since the incident in 1971, and were not present prior to that time. Little or no documentation from military records was present.” l. From a neuropsychological evaluation on 4 January 2017: In sum, the patent's neuropsychological profile reflected relative inefficiencies in executively-mediated tasks, as well as teaming inefficiency. These inefficiencies occurred in the context of very prominent reported psychiatric distress. Distress in this range would be expected to be associated with cognitive complaints. With attenuation of his distress, the patient is likely to see improvements in his physical, cognitive, and emotional functioning. At present. however, the patient meets criteria for disability due to severe, poorly controlled depression. m. Finally, from a forensic psychology evaluation dated 23 February 2017: “[Name] reported that he is seeking disability benefits for a head injury he sustained while in the military. He complained of cognitive deficits. He obtained an FSIQ score lower than what would be expected based on his clinical presentation. Another measure revealed that aspects of his memory functioning are poor. In addition, he reported that he has struggled with depression for many years. Finally, he described some symptoms associated with PTSD from the assault.” n. The final diagnoses were moderated dementia, dysthymia, and traumatic brain injury secondary to assault while in the Army in 1971 o. There are no clinical encounters in JLV. p. Based on the information currently available and in accordance with Liberal Consideration guidance, it is the opinion of the ARBA medical advisor that the applicant’s traumatic brain injury with resultant deficits mitigate his UCMJ violation. This condition is associated with avoidant behaviors, thus there a nexus between this condition and his period of absence without leave. Furthermore, there is sufficient evidence to warrant further evaluation by The Office of the Surgeon General for possible referral into the Disability Evaluation System. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted The Board carefully considered the applicants request, supporting documents, evidence in the records, and published DoD guidance for liberal consideration of discharge upgrade requests. The Board considered the applicant's statement, the applicant's record of service, the frequency and nature of the applicant's misconduct and the reason for separation. Because the applicant was pending a court-martial that could have adjudged a punitive discharge, he was ineligible for entry into the disability evaluation system per AR 635-40 in effect at the time. However, Board members sided with the medical reviewer and agreed that the applicant’s injury with resultant deficits mitigate his UCMJ violation. This condition is associated with avoidant behaviors, thus there a nexus between this condition and his period of AWOL. The Board also agreed with the advisory official's recommendation that there is sufficient evidence to warrant further evaluation by The Office of the Surgeon General for possible referral into the Disability Evaluation System. Although a medical disability is premature, a determination by OTSG is appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF XX: XX: XX: GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was 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 Office of the Surgeon General for review to determine if he should have been discharged or retired by reason of physical disability under the Legacy Disability Evaluation System (DES). a. In the event that 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 subsequent to completion of the formal PEB. b. Should a determination be made that the applicant should have been separated under the DES, these proceedings will serve as the authority to void his administrative separation and to issue him the appropriate separation retroactive to his 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 that 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 changing his type of discharge without evaluation under the IDES. 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 ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 635-200 (Personnel Separations, Enlisted Personnel), 15 July 1966, in effect at the time of the applicant’s discharge, Chapter 10 (Discharge for the Good of the Service), paragraph 2 (Personal Decision) states: a. Commanders will insure that an individual will not be coerced into submitting a request for discharge for the good of the service. The member will be given a reasonable time (not less than 72 hours) to consult with a consulting counsel (para 1-3c and 1-10e) and to consider the wisdom of submitting such a request for discharge. b. Consulting counsel will advise the member concerning the elements of the offense or offenses charged, burden of proof, possible defenses, possible punishments, provisions of this chapter, requirement of voluntariness, type of discharge normally given under the provisions of this chapter, rights regarding the withdrawal of his request, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. Consulting counsel may advise the individual regarding the merits of this separation action and the offense pending against him (para 1-3c). c. If the member, after receiving counseling (b above), elects to submit a request for discharge for the good of the Service, he will personally sign a written request, certifying that he has been counseled, that he understands his rights, that he may receive a discharge under other than honorable conditions, and that he understands the adverse nature of such a discharge and the possible consequences. The consulting counsel will sign as a witness, indicating that he is a commissioned officer of the Judge Advocate General's Corps, unless the request is signed by a civilian counsel representing the member. A member, nevertheless, may not waive consultation with a consulting counsel. If the member refuses to consult with a consulting counsel, he will be ordered to do so by his commander. If he persists in his refusal, a statement to this effect will be prepared by the commander and included in the file. Separation action may then proceed as if the member had consulted with a consulting counsel or the general court- martial convening authority may refuse to accept the tendered request for discharge. 3. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the 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. The regulation provides that the mere presence of impairment or physical disability does not 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 member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit due to medical conditions to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be considered for medically retirement or separation. 4. PTSD is unique among psychiatric diagnoses because of the great importance placed upon the etiological agent, the traumatic stressor. In fact, one cannot make a PTSD diagnosis unless the patient has actually met the "stressor criterion," which means that he or she has been exposed to an event that is considered traumatic. Clinical experience with the PTSD diagnosis has shown, however, that there are individual differences regarding the capacity to cope with catastrophic stress. Therefore, while most people exposed to traumatic events do not develop PTSD, others go on to develop the full-blown syndrome. Such observations have prompted the recognition that trauma, like pain, is not an external phenomenon that can be completely objectified. Like pain, the traumatic experience is filtered through cognitive and emotional processes before it can be appraised as an extreme threat. Because of individual differences in this appraisal process, different people appear to have different trauma thresholds, some more protected from and some more vulnerable to developing clinical symptoms after exposure to extremely stressful situations. 5. The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), produced by the American Psychiatric Association, 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 includes 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 assesses functioning; and the eighth criterion clarifies symptoms as not attributable to a substance or co- occurring medical condition. a. Criterion A, stressor: The person was exposed to: death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence, as follows: (one required) (1) Direct exposure. (2) Witnessing, in person. (3) Indirectly, by learning that a close relative or close friend was exposed to trauma. If the event involved actual or threatened death, it must have been violent or accidental. (4) Repeated or extreme indirect exposure to aversive details of the event(s), usually in the course of professional duties (e.g., first responders, collecting body parts; professionals repeatedly exposed to details of child abuse). This does not include indirect non-professional exposure through electronic media, television, movies, or pictures. b. Criterion B, intrusion symptoms: The traumatic event is persistently re- experienced in the following way(s): (one required) (1) Recurrent, involuntary, and intrusive memories. (2) Traumatic nightmares. (3) Dissociative reactions (e.g., flashbacks) which may occur on a continuum from brief episodes to complete loss of consciousness. (4) Intense or prolonged distress after exposure to traumatic reminders. (5) Marked physiologic reactivity after exposure to trauma-related stimuli. c. Criterion C, avoidance: Persistent effortful avoidance of distressing trauma- related stimuli after the event: (one required) (1) Trauma-related thoughts or feelings. (2) Trauma-related external reminders (e.g., people, places, conversations, activities, objects, or situations). d. Criterion D, negative alterations in cognitions and mood: Negative alterations in cognitions and mood that began or worsened after the traumatic event: (two required) (1) Inability to recall key features of the traumatic event (usually dissociative amnesia; not due to head injury, alcohol, or drugs). (2) Persistent (and often distorted) negative beliefs and expectations about oneself or the world (e.g., "I am bad," "The world is completely dangerous"). (3) Persistent distorted blame of self or others for causing the traumatic event or for resulting consequences. (4) Persistent negative trauma-related emotions (e.g., fear, horror, anger, guilt, or shame). (5) Markedly diminished interest in (pre-traumatic) significant activities. Feeling alienated from others (e.g., detachment or estrangement). (6) Constricted affect: persistent inability to experience positive emotions. e. Criterion E, alterations in arousal and reactivity: Trauma-related alterations in arousal and reactivity that began or worsened after the traumatic event: (two required) (1) Irritable or aggressive behavior (2) Self-destructive or reckless behavior (3) Hypervigilance (4) Exaggerated startle response (5) Problems in concentration (6) Sleep disturbance f. Criterion F, duration: Persistence of symptoms (in Criteria B, C, D, and E) for more than one month. g. Criterion G, functional significance: Significant symptom-related distress or functional impairment (e.g., social, occupational). h. Criterion H, exclusion: Disturbance is not due to medication, substance use, or other illness. 6. Title 10, U.S. Code, chapter 61, provides for disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade, or rating because of disability incurred while entitled to basic pay. 7. Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge, or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency. 8. There is a difference between the VA and the Army disability systems. The Army's determination of a Soldier's physical fitness or unfitness is a factual finding based on the individual's ability to perform the duties of his or her grade, rank, or rating. If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature. The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the PEB hearing. The VA may find a Soldier unfit by reason of a service-connected disability and may even initially assign a higher rating. The VA's ratings are based on an individual's ability to gain employment as a civilian and may fluctuate within a period of time depending on changes in the disability. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210008740 15 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1