IN THE CASE OF: BOARD DATE: 12 February 2015 DOCKET NUMBER: AR20140018813 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, in effect, affirmation of his general discharge under the provisions of the Special Discharge Review Program (SDRP). 2. The applicant states he was diagnosed with post-traumatic stress disorder (PTSD). 3. The applicant provides a letter from a Department of Veterans Affairs (VA) licensed clinical psychologist, dated 23 January 2012. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. 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 Army Board for Correction of Military Records (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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant was inducted into the Army of the United States on 24 April 1968. He completed his training and was awarded military occupational specialty 94B (cook). 3. Between June 1968 and October 1968, nonjudicial punishment (NJP) was imposed against him on four occasions for: * being absent without leave (AWOL) from 7 June 1968 to 10 June 1968 * being AWOL from 12 August 1968 to 21 August 1968 * being AWOL from 20 September 1968 to 22 September 1968 and violating a lawful regulation * failing to obey a lawful order 4. He arrived in Vietnam on 17 December 1968. 5. Between February 1969 and May 1969, NJP was imposed against him on three occasions for: * using disrespectful language toward a sergeant first class * failing to repair * wrongfully appropriating and damaging a truck through neglect and failing to obey a lawful order 6. In May 1969, he underwent a psychiatric evaluation and was diagnosed with a sociopathic personality. No mental illness which would warrant his disposition through medical channels was noted. The psychiatrist recommended his separation from the service under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability). 7. His unit commander initiated action to separate him for unfitness under the provisions of Army Regulation 635-212. The basis for the proposed discharge was the applicant's habits and traits of character manifested by repeated commission of petty offenses and excessive drinking. 8. After consulting with counsel and being advised of his recommended separation for unfitness, he waived consideration of his case by a board of officers and representation by counsel. He acknowledged that he understood he might expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions were issued to him. He further acknowledged he understood that as the result of issuance of an undesirable discharge under other than honorable conditions, he might be ineligible for any or all benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life. He elected not to submit a statement in his own behalf. 9. On 13 May 1969, the separation authority approved the recommendation for separation and directed the issuance of an Undesirable Discharge Certificate. 10. He departed Vietnam on 6 July 1969. 11. On 7 July 1969, he was discharged for unfitness under the provisions of Army Regulation 635-212. He completed 1 year and 2 months of total active service with 14 days of lost time. Separation program number 386 shown on his DD Form 214 represents an established pattern for shirking. 12. In March 1971, the Army Discharge Review Board (ADRB) denied the applicant's request for an honorable discharge. 13. On 22 July 1977, the ADRB upgraded the applicant's discharge to general under honorable conditions under the provisions of the SDRP. 14. In September 1978 after having re-reviewed the applicant's case as required by Public Law 95-126, the ADRB determined not to affirm the recharacterization of his discharge because the board concluded he was properly and equitably discharged at the time of his separation. He had established an extensive pattern of disciplinary problems prior to requesting a compassionate transfer because of his mother's illness. Insufficient mitigation was noted to excuse his extensive acts of indiscipline. 15. He provided a letter from a VA licensed clinical psychologist, dated 23 January 2012, which states: a. The applicant presents with the classic symptoms of PTSD, including hypervigilance, generalized anxiety, irritability and anger management difficulties, social withdrawal, recurrent and intrusive recollections of traumatic events, survivor guilt and nightmares. b. More likely than not, the applicant's PTSD is derived from his military service. c. The applicant's PTSD has significantly and adversely affected almost all aspects of his functioning, including emotional, social, and vocational. d. He fully supports the application for service connection for PTSD. 16. Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unsuitability and unfitness. Paragraph 6a(4) provided that members involved in an established pattern of shirking were subject to separation for unfitness. An undesirable discharge was normally considered appropriate. 17. The Department of the Army SDRP was based on a memorandum from Secretary of Defense Brown and is often referred to as the "Carter Program." It mandated the upgrade of individual cases in which the applicant met one of several specified criteria and when the separation was not based on a specified compelling reason to the contrary. The ADRB had no discretion in such cases other than to decide whether recharacterization to fully honorable as opposed to a general discharge was warranted in a particular case. Absentees who returned to military control under the program were eligible for consideration after they were processed for separation. Individuals could have their discharges upgraded if they met any one of the following criteria: wounded in action, received a military decoration other than a service medal, successfully completed an assignment in Southeast Asia, completed alternate service, received an honorable discharge from a previous tour of military service, or completed alternate service or were excused there from in accordance with Presidential Proclamation 4313 of 16 September 1974. Compelling reasons to the contrary to deny discharge upgrade were desertion/AWOL in or from the combat area, discharge based on a violent act of misconduct, discharge based on cowardice or misbehavior before the enemy, or discharge based on an act or misconduct that would be subject to criminal prosecution under civil law. 18. Public Law 95-126 provided for a "Relook Program." All cases upgraded from under other than honorable conditions under the SDRP or Presidential Proclamation programs (and their extensions) required a second review and affirmation (or not) under uniform standards. 19. 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." 20. 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. 21. 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. 22. 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. 23. 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. 24. 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? 25. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant's discharge proceedings for misconduct were conducted in accordance with law and regulations in effect at the time. The characterization of the applicant's discharge was commensurate with the reason for discharge and overall record of military service in accordance with the governing regulations in effect at the time. 2. His undesirable discharge was upgraded to general under honorable conditions as a result of the SDRP review in May 1977. In 1978, his general discharge was not affirmed by the ADRB in accordance with Public Law 95-126. 3. At the time of his discharge, PTSD was largely unrecognized by the medical community and DOD. However, both the medical community and DOD now have a more thorough understanding of PTSD and its potential to serve as a causative factor in a Soldier's misconduct when the condition is not diagnosed and treated in a timely fashion. 4. Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible re-characterization of their overall service. 5. The applicant contends he was diagnosed with PTSD and he provided a letter from a VA licensed clinical psychologist which states he had classic symptoms of PTSD in 2012. 6. Although his record of service included seven NJPs and 14 days of lost time, his misconduct (AWOL) prior to being assigned to Vietnam was not specifically cited as a reason for his discharge for unfitness (repeated commission of petty offenses and excessive drinking). Since the evidence suggests his PTSD may have been a contributing factor in the misconduct that led to his discharge, there is a sufficient basis to affirm his general discharge. BOARD VOTE: ___x____ ___x____ __x_____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing his general discharge under the provisions of the SDRP was affirmed. ___________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) AR20140018813 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140018813 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1