IN THE CASE OF: BOARD DATE: DOCKET NUMBER: AR20150001156 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests reconsideration of his previous request for an upgrade of his discharge under other than honorable conditions (UOTHC) to honorable or general under honorable conditions and reinstatement of his rank/pay grade to sergeant (SGT)/E-5 through a remand from the U.S. District Court for the District of Connecticut. 2. The applicant defers to counsel in these matters. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests an upgrade of the applicant's discharge UOTHC to honorable or, in the alternative, general under honorable conditions and reinstatement of his rank/pay grade to SGT/E-5 based on his diagnosis of post-traumatic stress disorder (PTSD). Counsel further requests the applicant's personal appearance before the Army Board for Correction of Military Records (ABCMR). 2. Counsel states: a. The applicant is a decorated Vietnam veteran who has suffered from PTSD for decades. The applicant would have received a medical discharge based on his PTSD under current military procedures. Instead, the applicant was given a discharge UOTHC at a time when PTSD was not a recognized medical diagnosis. b. The applicant's previous request for an upgrade of his discharge was denied by the ABCMR. Since that denial, the Secretary of Defense has mandated that the Service Boards for Correction of Military/Naval Records (BCM/NRs) give more liberal consideration to applicants with PTSD. The ABCMR should upgrade the applicant's discharge to honorable or general under honorable conditions under the new standards. Furthermore, the ABCMR should reinstate the applicant's rank/pay grade of SGT/E-5. c. The applicant should receive an in-person hearing before the ABCMR. Denying an in-person hearing implicates due process concerns which are heightened by the applicant's four-decade wait for a discharge upgrade hearing under appropriate medical standards. The ABCMR's near categorical refusal to grant in-person hearings is not simply an exercise of discretion; it may amount to a "legally erroneous failure to exercise discretion." Recognizing the need for in-person hearings, the Senate Armed Services Committee recently instructed the BCM/NRs to work to "increase the number of in-person hearings granted." In the applicant's case, an in-person hearing would best ensure that guidance is implemented and the applicant receives a meaningful opportunity to be heard in a fair and transparent forum. 3. Counsel provides a 21-page legal brief with 9 exhibits with attachments as follows: * Exhibit A – applicant's 14-page declaration, dated 8 January 2015, with the following attachments – * 1 – DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 20 July 1969 * 2 – DA Form 2166-4 (Enlisted Efficiency Report), dated 4 November 1971 * 3 – DD Form 214 for the period ending 28 January 1972 * 4 – DA Form 20 (Enlisted Qualification Record) * 5 – DA Form 2166-4, dated 10 December 1973 * 6 – DD Form 214 for the period ending 20 August 1974 * 7 – Department of Veterans Affairs (VA) Form 119 (Report of Contact), dated 12 May 1982 * 8 – Loma Linda Health Care Services Progress Notes, dated 16 May-1 June 2001, pages 588-590 * 9 – letter from the San Diego VA Regional Office, dated 5 January 2001, with rating decision * 10 – letter from the San Diego VA Regional Office, dated 16 May 2001, with rating decision * 11 – letter to ABCMR, dated 3 June 2001 * 12 – San Bernardino Veterans Counseling Center medical history, dated 4 April 2001 * 13 – San Bernardino Veterans Counseling Center Standard Form 600 (Progress Notes), dated 7 May 2001, 17 May 2001, 11 February 2002, and 3 February 2003 * 14 – East Los Angeles VA Medical Center Progress Notes, dated 14 September 2004 (records printed at West Los Angeles VA Medical Center), pages 35 and 36 * 15 – East Los Angeles VA Medical Center Progress Notes, dated 14 September 2004 (records printed at West Los Angeles VA Medical Center), dated 14 September 2004, pages 15-17 * 16 – ABCMR records * 17 – U.S. District Court for the District of Connecticut Case Monk versus Mabus, Complainant, dated 3 March 2014 * 18 – U.S. District Court for the District of Connecticut Order on Motion for a Voluntary Remand * Exhibit B – Declaration of L____ B. C____ * Exhibit C – Secretary of Defense memorandum, dated 3 September 2014, subject: Supplemental Guidance to Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming PTSD * Exhibit D – letter from G____ B____, dated 26 January 2002 * Exhibit E – letter from R____ N. I____, dated 15 July 2001 * Exhibit F – letter from L____ B____ C____, dated 16 April 2000 * Exhibit G – letter from W____ M. W____, dated 12 April 2000 * Exhibit H – Expert Report of B____ L____, M.D., dated 12 January 2015, with Curriculum Vitae * Exhibit I – service medical treatment records – * Standard Form 88 (Report of Medical Examination), dated 29 May 1974 * DA Form 3822-R (Report of Mental Status Evaluation), dated 10 June 1974 * Supplemental – PTSD diagnosis with relevant medical record notes from the applicant's civilian provider and treating psychiatrist CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20090003055 on 14 July 2009. 2. Counsel presents new evidence and a new argument in the form of the Secretary of Defense memorandum, dated 3 September 2014, and extracts of the applicant's medical records which will now be considered by the Board. 3. The applicant enlisted in the Regular Army on 20 November 1968. He was honorably discharged in the rank/pay grade of private first class/E-3 on 20 July 1969 for immediate reenlistment. 4. He reenlisted on 21 July 1969. He served in Vietnam from 3 October 1969 through 3 November 1970 and participated in four campaigns. 5. He was honorably discharged in the rank/pay grade of specialist four/E-4 on 28 January 1972 to attend school. His DD Form 214 for this period shows he was awarded or authorized the: * National Defense Service Medal * Vietnam Service Medal with one bronze service star * Republic of Vietnam Campaign Medal with Device (1960) * Army Commendation Medal * Sharpshooter Marksmanship Qualification Badge with Rifle Bar 6. On 18 December 1972, the applicant again enlisted in the Regular Army. 7. His DA Form 20 shows: a. He was assigned to Battery A, 2d Battalion, 4th Field Artillery, 9th Infantry Division, Fort Lewis, WA, effective 4 January 1973. b. He was promoted to the rank/pay grade of SGT/E-5 effective 1 September 1973. c. He was absent without leave (AWOL) from 14 January to 23 May 1974, a period of 4 months and 10 days. 8. Headquarters, U.S. Army Training Center and Fort Ord, CA, Special Orders Number 226, dated 14 August 1974, reduced the applicant to the rank/pay grade of private (PV1)/E-1 by reason of misconduct effective 10 August 1974. 9. The applicant's discharge packet is not available for review. However, his DD Form 214 shows he was discharged UOTHC for the good of the service in lieu of trial by court-martial on 20 August 1974 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, and issued an Undesirable Discharge Certificate. He completed 1 year, 3 months, and 23 days of creditable active service with 129 days of lost time due to being AWOL. 10. On 14 July 2009, the ABCMR denied the applicant's previous request for an upgrade of his discharge based on the policies in effect at the time of his separation. 11. On behalf of the applicant, counsel provided the following documentation: a. The applicant's Standard Form 88, dated 29 May 1974, shows he stated he was in good health. He was examined and found qualified for separation. b. The applicant's DA Form 3822-R, dated 10 June 1974, shows he was evaluated for discharge because of desertion. His behavior was rated as normal he was fully alert and fully oriented, his mood was level, his thinking process was clear, his thought content was normal, and his memory was good. He did not present significant mental illness. He was mentally responsible, able to distinguish right from wrong and adhere to the right, and had the mental capacity to understand and participate in board proceedings. He met the retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. c. A VA Form 119, dated 12 May 1982, shows the health care provider diagnosed the applicant as having a major affective disorder. The applicant presented with a more than 2-year history of depressed mood, inability to cope and concentrate, decreased attention span, feelings of unresolved rage and anger, decreased appetite, insomnia/early wakening, and decreased libido. The health care provider stated, "He is able to vent considerable anger at reception in the [United States] [upon] returning from [Vietnam]." d. A medical history summary from the San Bernardino Veterans Counseling Center, dated 4 April 2001, shows the applicant presented in the context of a history of PTSD and depression. Since his return from Vietnam he has had significant difficulty with his post-military adjustment. He endorsed numerous PTSD symptoms; specifically, he described having combat-related nightmares, social isolation, anger dyscontrol, sleep problems, concentration problems, hyperstartle responses, and hypervigilance. The current assessment data indicated the applicant presently met the criteria for chronic and severe PTSD as the direct result of the war zone trauma he experienced in Vietnam. e. A San Diego VA Regional Office Rating Decision, dated 16 May 2001, shows service connection for the applicant's PTSD was granted with an evaluation of 100 percent retroactive to 16 February 2000. f. Loma Linda Health Care Services Progress Notes, dated 16 May-1 June 2001, pages 588-590, show the applicant was seen on 16 May 2001 to ascertain his potential for PTSD treatment with partial cognitive therapy. The PTSD Evaluation Form entries, dated 22 May 2001, show his Vietnam veteran status was verified; he reported receipt of an undesirable discharge in "1972" based on being AWOL; and he reported that he had experienced "survivor guilt" after his friend "fragged"/killed the "CO [commanding officer]" in August 1970. g. San Bernardino Veterans Counseling Center Standard Forms 600, dated 7 May 2001, 17 May 2001, 11 February 2002, and 3 February 2003, show the applicant was treated for severe and chronic PTSD. h. East Los Angeles VA Medical Center Progress Notes, dated 14 September 2004 (records printed at West Los Angeles VA Medical Center), pages 35 and 36, show the applicant was diagnosed as suffering from PTSD, panic disorder, and major depression on 29 May 2002. i. East Los Angeles VA Medical Center Progress Notes, dated 14 September 2004 (records printed at West Los Angeles VA Medical Center), pages 15-17, show the applicant was treated for chronic PTSD and recurrent major depression on 2 July-4 September 2003. j. The applicant's diagnosis with relevant medical record notes from his current civilian provider and treating psychiatrist show he was diagnosed as suffering from recurrent, moderate major depressive disorder; attention deficit hyperactivity disorder; PTSD; obsessive compulsive disorder; and sleep apnea among other ailments, and include his treatment notes for the following dates: * 15 March 2007, 14 May 2007, and 1 August 2007 * 25 April 2009, 25 May 2009, and 25 June 2009 * 25 August 2010, 29 September 2010, and 26 October 2010 * 17 May 2011, 15 June 2011, 13 July 2011, and 15 August 2011 * 25 February 2013, 25 March 2013, and 25 April 2013 12. PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster. The Diagnostic and Statistical Manual of Mental Disorders (DSM) is published by the American Psychiatric Association (APA) and provides standard criteria and common language for the classification of mental disorders. In 1980, the APA added PTSD to the third edition of its DSM nosologic classification scheme. Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice. From a historical perspective, the significant change ushered in by the PTSD concept was the stipulation that the etiological agent was outside the individual (i.e., a traumatic event) rather than an inherent individual weakness (i.e., a traumatic neurosis). The key to understanding the scientific basis and clinical expression of PTSD is the concept of "trauma." 13. 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. 14. The fifth edition of the DSM was released in May 2013. This revision includes changes to the diagnostic criteria for PTSD and acute stress disorder. The PTSD diagnostic criteria were revised to take into account things that have been learned from scientific research and clinical experience. The revised diagnostic criteria for PTSD include a history of exposure to a traumatic event that meets specific stipulations and symptoms from each of four symptom clusters: intrusion, avoidance, negative alterations in cognitions and mood, and alterations in arousal and reactivity. The sixth criterion concerns duration of symptoms, the seventh criterion assesses functioning, and the eighth criterion clarifies symptoms as not attributable to a substance or co-occurring medical condition. 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; or (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; or (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 or (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); and (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, and (6) sleep disturbance. f. Criterion F – Duration: Persistence of symptoms (in Criteria B, C, D, and E) for more than 1 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. 15. As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis, and treatment of PTSD, the Department of Defense (DOD) acknowledges that some Soldiers who were administratively discharged 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 has also shown that misconduct stemming from PTSD is typically based upon a spur of the moment decision resulting from a temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues for an extended period of time. 16. On 3 September 2014 in view of the foregoing information, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged 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 applicants' service. 17. BCM/NRs are not courts, nor are they investigative agencies. Therefore, the determinations will be based upon a thorough review of the available military records and the evidence provided by each applicant on a case-by-case basis. When determining if PTSD was the causative factor for an applicant's misconduct and whether an upgrade is warranted, the following factors must be carefully considered: * is it reasonable to determine that PTSD or PTSD-related conditions existed at the time of discharge? * does the applicant's record contain documentation of the occurrence of a traumatic event during the period of service? * does the applicant's military record contain documentation of a diagnosis of PTSD or PTSD-related symptoms? * did the applicant provide documentation of a diagnosis of PTSD or PTSD-related symptoms rendered by a competent mental health professional representing a civilian healthcare provider? * was the applicant's condition determined to have existed prior to military service? * was the applicant's condition determined to be incurred during or aggravated by military service? * do mitigating factors exist in the applicant's case? * did the applicant have a history of misconduct prior to the occurrence of the traumatic event? * was the applicant's misconduct premeditated? * how serious was the misconduct? 18. Although DOD acknowledges that some Soldiers who were administratively discharged UOTHC may have had an undiagnosed condition of PTSD at the time of their discharge, it is presumed that they were properly discharged based upon the evidence that was available at the time. Conditions documented in the records that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which PTSD or PTSD-related conditions may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the UOTHC characterization of service. BCM/NRs will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of UOTHC. Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. BCM/NRs will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. 19. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred. A discharge UOTHC is normally considered appropriate. At the time of the applicant's separation, the regulation provided for the issuance of an Undesirable Discharge Certificate. b. Paragraph 1-13 states that when a Soldier is to be separated UOTHC, the separation authority will direct an immediate reduction to the lowest enlisted grade. c. Paragraph 3-7a provides that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the member'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. d. 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. 20. Army Regulation 15-185 (Army Board for Correction of Military Records) provides that the ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION AND CONCLUSIONS: 1. The applicant's records show he enlisted in the Regular Army on 18 December 1972 following a brief break in service after completing 3 years, 2 months, and 9 days of prior honorable active enlisted service which included foreign service in Vietnam. 2. On 20 August 1974, he was discharged UOTHC for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, and issued an Undesirable Discharge Certificate. As a result, he was administratively reduced to the rank/pay grade of PV1/E-1 in accordance with the governing regulation. He completed 1 year, 3 months, and 23 days of creditable active service during this period with 129 days of lost time due to being AWOL. 3. His records contain no evidence showing he was diagnosed with any mental health condition prior to his separation from active duty. 4. In the absence of the applicant's discharge packet, his voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial is presumed to have been administratively correct and in conformance with applicable regulations at that time. 5. Counsel provided substantial documentation showing the applicant was diagnosed as having a major affective disorder as early as 12 May 1982. He was subsequently diagnosed as suffering from PTSD in addition to other mental health conditions by a competent mental health professional on or about 4 April 2001. The applicant was granted 100-percent service-connected disability for PTSD by the VA retroactive to 16 February 2000. He continues to receive treatment for PTSD. 6. Therefore, the evidence presented is sufficient to reasonably conclude that the applicant's previously undiagnosed combat-related PTSD or PTSD-related conditions were a causative factor in the misconduct that resulted in his discharge UOTHC. Under these circumstances, his DD Form 214 should be corrected to show he was discharged under honorable conditions (general) and he should be issued a General Discharge Certificate in lieu of the Undesirable Discharge Certificate he currently holds. 7. Absent the applicant's discharge UOTHC, there was no basis for his administrative reduction to PV1/E-1. Therefore, his rank/pay grade of SGT/E-5 should be reinstated effective 1 September 1973 as a result of this correction. 8. The overall quality of the applicant's service during the period under review, when measured against his unauthorized absence for 129 days, was not so meritorious as to warrant a fully honorable discharge. 9. Counsel's request for an in-person hearing before the ABCMR was carefully considered. However, the evidence presented in this case is sufficient for the Board to render a just and equitable decision without the necessity of a personal appearance by the applicant. BOARD VOTE: ________ ________ ________ 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 amendment of the ABCMR's decision in Docket Number AR20090003055, dated 14 July 2009. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. reinstating his rank/pay grade to SGT/E-5 effective 1 September 1973; and b. reissuing his DD Form 214 to show: * his rank/pay grade as SGT/E-5 * his date of rank as 1 September 1973 * his character of service as general under honorable conditions 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 a personal appearance before the Board. ___________X_____________ CHAIRPERSON 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. ABCMR Record of Proceedings (cont) AR20150001156 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150001156 13 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1