IN THE CASE OF:	  

		BOARD DATE:	    5 February 2015

		DOCKET NUMBER:  AR20140003053 


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 an upgrade of his discharge under other than honorable conditions (UOTHC), dated 13 May 1969.

2.  The applicant states, in effect, that he has been diagnosed with Post-Traumatic Stress Disorder (PTSD) and contends that PTSD was the catalyst for his misconduct.  He states that during the time he received the above discharge, PTSD was not prevalent; therefore, he was not properly diagnosed for his behavior at the time.

3.  The applicant provides a self-authored statement and two Medical Evaluation Notes extracted from his Department of Veterans Affairs (VA) medical records.

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 22 September 1964.  He completed his basic and advanced training and was awarded military occupation specialty 11B (Light Weapons Infantryman).

3.  He deployed with his unit to the Dominican Republic in April 1965 and remained there until July 1965.  He was awarded the Combat Infantryman Badge and the Armed Forces Expeditionary Medal for that deployment.  He was also advanced to the pay grade of E-3 on 1 July 1965.

4.  On 22 November 1965, he was honorably discharged for the purpose of immediate enlistment and on 23 November 1965, he enlisted in the Regular Army for a period of 3 years and assignment to Panama.  He was transferred to Panama on 6 January 1966.

5.  On 1 April 1966, nonjudicial punishment (NJP) was imposed against him for being apprehended by military authorities while attempting to enter Howard Air Force Base with a pass in his possession.  

6.  On 18 June 1966, NJP was imposed against him for sleeping on his guard post.  

7.  On 2 August 1966, he was convicted by a special court-martial of having three military identification cards in his possession, two specifications of breaking restriction, and being incapacitated in the performance of his duties due to  overindulgence in unknown incapacitating agents.  He was sentenced to a reduction to the pay grade of E-1, confinement at hard labor for 6 months, and a forfeiture of pay.  On 23 December 1966, the convening authority suspended the unexecuted portion of the sentence to confinement at hard labor for 1 month, unless sooner vacated. 

8.  The applicant was reassigned to another company in the same battalion and on 4 February 1967, NJP was imposed against him for being incapacitated for the proper performance of his duties due to overindulgence in an intoxicating agent.   

9.  On 23 March 1967, NJP was imposed against him for failure to go to his place of duty.  

10.  On 5 May 1967, NJP was imposed against him for being absent from his place of duty.  


11.  On 25 May 1967, he was convicted by a special court-martial of striking a married civilian female in the face with his fists and in the torso with his foot.  He was sentenced to confinement at hard labor for 6 months and a forfeiture of pay. On 21 August 1967, the convening authority suspended the unexecuted portion of the sentence to confinement at hard labor for a period of 3 months, unless sooner vacated.

12.  The applicant departed Panama on 26 January 1968 and was transferred to Vietnam on 4 March 1968, where he was assigned as a rifleman in the 4th Battalion, 503rd Infantry Regiment.  

13.  He was awarded the Bronze Star Medal with "V" Device for an action that occurred on 10 June 1968, in which he was cited for heroism involving his pulling two wounded Soldiers to safety while under fire.

14.  On 20 July 1968, he received a fragmentation wound to the leg and was evacuated to a hospital for treatment.  He was also awarded the Purple Heart at the Evacuation Hospital and was subsequently returned to his unit.

15.  On 20 October 1968, NJP was imposed against him for being absent from his place of duty.  

16.  On 28 October 1968, NJP was imposed against him for discharging his weapon through carelessness and for failure to go to his place of duty.

17.  The applicant was convicted by a special court-martial on 26 December 1968, of two specifications of disobeying lawful orders of a commissioned officer to go on detail and to go to the field with the company for combat operations.  His sentence consisted of confinement at hard labor for 6 months, reduction to the pay grade of E-1, and a forfeiture of pay.  On 13 February 1969, the convening authority set aside one specification and approved the sentence.

18.  The facts and circumstances surrounding the applicant's administrative discharge are not present in the available records.  However, his records do contain a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) signed by the applicant which shows he was issued a UOTHC discharged on 13 May 1969, under the provisions of Army Regulation 635-212, for unfitness due to his frequent involvement in incidents of a discreditable nature with civil/military authorities.  He had served a total of 3 years, 7 months, and 10 days of total active service and he had 376 days of lost time due to being in confinement.

19.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 28 August 1978 and asserted essentially the same contentions to the ADRB that he is asserting to this Board.  The ADRB opined that while he did have some satisfactory service in Vietnam during the period for which he was wounded and decorated, his overall service in Vietnam was unsatisfactory.  Given his seven records of NJP and his three court-martial convictions, his discharge was properly characterized.  The ADRB voted unanimously to deny his application and the applicant was notified of such on 22 March 1979.

20.  He provides a: 

	a.  self-authored statement wherein he recounts traumatic events that he experienced in Vietnam.  He states he received a leg injury in combat that was treated, but never evaluated for fitness for duty.  He refused to go into the field because of this leg wound which still holds the bullet that caused it along with approximately 100 pins.  This refusal to go into the field resulted in him being awarded a UOTHC discharge.

		(1)  On 20 July 1968, his brigade was ambushed while crossing a river.  The applicant and two other Soldiers were wounded and subsequently airlifted out during the gunfight.  The floor of the helicopter was smooth and the only thing for him and the other wounded Soldiers to hold on to were the d-rings in the floor.  He and another wounded Soldier wrapped their arms around the Soldier who had been wounded the worst and did the best they could not to fall out of the aircraft, which was extremely difficult.  He received the Purple Heart for this incident.

		(2)  On 17 August 1968, while moving from one area to the next, their two point men were ambushed.  One Soldier was shot from behind his left ear with a bullet that traveled diagonally through his head but did not exit.  It caused a huge swelling to rise in the area the bullet would have exited.  The other Soldier stepped on a mine which propelled him away from the sniper.  They both began yelling for help.  The applicant noticed as he began to make his way toward them that no one else was attempting to assist them.  He had to go out twice, but brought them both back to safety while managing to also dodge the sniper.  He was also able to locate the sniper during all of this and they were able to eliminate him.  The Soldier with the bullet in his head eventually died.  The Soldier who stepped on the mine lived even though the mine caused extensive damage.  He was awarded the Bronze Star Medal with "V" Device for his actions during this incident.


		(3)  The applicant attests that he did not seek to disobey a direct order for his own safety or out of cowardice.  He had a bullet lodged in his leg along with 100 or more pins and was not in good physical condition required of someone who is in the field.  In his weakened condition not only was he a danger to himself, but to all fellow Soldiers around him and he did not want to be a burden to them.

	b.  Medical Evaluation Note extracted from his VA medical records which show the applicant was evaluated by a consulting psychiatrist on 10 December 2013.  The psychiatrist noted the following comments in the sections shown:

		(1)  History:  The applicant had served in Vietnam and ended up spending time in the stockade because he would not go back into combat.  He currently suffers from PTSD.  He saw certain horrific tragedies while he was there.  Chief complaint is "I got PTSD."  This man gives a well documented history of PTSD.  He has current and vivid nightmares.  He has emotional withdrawal.  He has prominent startle reflex.  He can't settle down.  It is hard for him to sleep.  He wakes up frequently.  Sometimes he has really bad dreams.  He becomes emotionally withdrawn, at times he has given up and he tries to stay to himself as much as possible so that he does not get emotionally involved.  In addition to this he has symptoms of depression.  He feels down in the dumps, blue and sad.  He has lethargy.  He can't get motivated.  He has poor concentration.  He does not care about eating or sleeping.  Sometimes he thinks life is not worth living.

		(2)  Decision Impression:

* Axis I:  Major depressive disorder recurrent severe; PTSD
* Plan:  Zoloft 100 milligrams (mg), Prazosin 2 mg, and return in 1 month.

	c.  Medical Evaluation Note extracted from his VA medical records which show the applicant was evaluated by a consulting psychiatrist on 7 January 2014.  The psychiatrist noted the following comments in the sections shown:

		(1)  History:  The applicant was doing reasonably well.  His mood and affect were stable.  He was not having any major problems.  He felt that the medication given was helpful.  He was having no current issues.  The applicant was compliant with medications and felt that he had no side effects.  Since the last time he was seen his wife was in an accident and this had caused him some stress, but had not caused any worsening of his condition.


		(2)  Examination:  He was an alert and oriented man.  He had normal gait and normal motor activity.  Speech was normal.  He had no hallucinations or delusions.  He had normal recent and remote memory.  Insight and judgment were fair.  He had good comprehension of his condition.  He was no longer depressed.  He was not having any breakthrough dreams.

		(3)  Plan:

* Continue current medication
* Zolpidem 10 mg hora somni (hs, before sleep)
* Prazosin 2 mg hs
* Zoloft 100 mg daily

21.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness.  It provided, in pertinent part, that members who were involved in frequent incidents of a discreditable nature with civil and/or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

22.  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 it 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-III nosologic classification scheme.  Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice.
From an 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." 

23.  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.

24.  The DSM fifth revision (DSM-5) 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 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. 

25.  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 under other than honorable conditions 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 Soldier's 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 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.  

26.  In view of the foregoing, on 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service.

27.  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?

28.  Although the DOD acknowledges that some Soldiers who were administratively discharged under other than honorable conditions 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 record 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.  Corrections Boards 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.  Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causeal 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.  At the time of the applicant's 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.

3.  Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible recharacterization of their overall service.

4.  A review of the applicant's record and the evidence that he provided shows that he was subjected to the ordeals of war while serving in the RVN.  Of particular note are the instances during which:

* he and two other Soldiers were wounded during an ambush and had to be medically evacuated during a firefight
* his unit was ambushed by a sniper and he put himself in harm's way to rescue two wounded Soldiers

5.  Subsequent to these experiences, medical evidence shows the applicant was diagnosed with PTSD/PTSD-related symptoms by a competent mental health professional.  Therefore, it is reasonable to believe the applicant's PTSD condition existed at the time of discharge. 

6.  It is concluded that the PTSD conditions were a causative factor in the misconduct that led to the discharge.  After carefully weighing that fact against the severity of the applicant's misconduct, there is sufficient mitigating evidence to warrant upgrading the characterization of the applicant's service to a general discharge under honorable conditions.






BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was 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 re-issuing the applicant's DD Form 214 for the period ending 13 May 1969 to show the characterization of service as "General, Under Honorable Conditions."



      _______ _   _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)                                         AR20140003053



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ABCMR Record of Proceedings (cont)                                         AR20140003053



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