IN THE CASE OF:	   

		BOARD DATE:	  18 November 2014

		DOCKET NUMBER:  AR20140004034 


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).

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.  The second day that his company commander took over the unit he called the applicant into his office and said that he did not like him and he would do everything possible to force him out with a dishonorable discharge.  He was forced to go absent without leave (AWOL) because the company commander cancelled his 2-week paternity leave as soon as he found out about it and forced him to go to the field when his wife was already 2 weeks overdue for delivery.  The commander told him that he did not care how pregnant she was, that he was going to the field and he did not care if she had their baby on the sidewalk.  There were 4 other Soldiers whose wives were only 2 to 6 months pregnant at the time whom he left behind because their wives were pregnant.  He reported the commander's actions to the Battalion Commander and the Post Chaplain and they both accused him of making up the story.  

3.  The applicant further states that he had served for nearly 10 years at the time and had never been in trouble.  He reenlisted because he was unable to get a job due to the fact that he had been to the Republic of Vietnam (RVN) and prospective employers always told him that they did not want a baby killer working for them as he might kill some kid.  He received his UOTHC discharge based upon advice from his lawyer who informed him that if he requested a different type of discharge the commander would recommend that the applicant be sentenced to incarceration in Fort Leavenworth prison for a period of 20 years.  In order to avoid this outcome, the lawyer advised him to request an undesirable discharge instead.  The lawyer had only been in the Army for 2 months.  He did not know that he had PTSD until 1992. 

4.  The applicant provides:

* a self-authored statement
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 24 October 1969
* 2 DD Forms 214 (Report of Separation from Active Duty) for the periods ending 19 March 1975 and 28 December 1976
* a letter from a civilian psychologist, dated 28 August 1985
* a Board of Veterans' Appeals Docket, dated 9 October 1991
* a Department of Veterans Affairs (VA) Rating Decision, dated 23 February 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 enlisted in the Regular Army on 27 October 1966.  His DA Form 20 (Enlisted Qualification Record) rendered for the period 27 October 1966 through 24 October 1969 shows in:

	a.  item 31 (Foreign Service), that he served in Germany from 10 April to 2 November 1967 and in the RVN from 30 December 1967 to 21 December 1968.

	b.  item 33 (Appointments and Reductions), that he advanced through the junior enlisted ranks from private/E-1 through specialist four/E-4 in 23 months.
	c.  item 38 (Record of Assignments), that he served with Headquarters and Headquarters Company, 2nd Infantry Brigade, 9th Infantry Division.

	d.  item 38, that he received all "Excellent" conduct and efficiency ratings.

3.  On 24 October 1969, the applicant was honorably released from active duty (REFRAD) and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  The DD Form 214 that he was issued at the time shows he completed 2 years, 11 months and 28 days of active duty service.  He was awarded or authorized the:

* National Defense Service Medal (NDSM)
* Vietnam Service Medal (VSM) with one silver service star
* Republic of Vietnam Campaign Medal (RVNCM) with Device (1960)
* Vietnam Unit Citation (presumably the Republic of Vietnam Gallantry Cross with Palm Unit Citation)

4.  On 20 March 1972, the applicant again enlisted in the Regular Army for a period of 3 years.  His DA Form 20 rendered for the period 24 October 1969 through 19 March 1975 shows in:

	a.  item 33, that he was promoted to sergeant/E-5 on 3 November 1974.

	b.  item 38, that he was assigned to Headquarters and Headquarters Detachment, 1st Brigade Combat Training Brigade with duty at 9th Signal Battalion, Fort Lewis, WA.

	c.  item 38, that he received "Excellent" conduct and efficiency ratings.

5.  On 19 March 1975, the applicant was honorably discharged upon completion of required service.  The DD Form 214 that he was issued at the time shows he completed 3 years of active duty service during this period.

6.  The applicant enlisted in the USAR on 11 November 1975 and was discharged from the USAR on 5 January 1976 for the purpose of immediate enlistment in the Regular Army.  The applicant enlisted in the Regular Army on 6 January 1976 and the highest rank/grade he attained while serving on active duty was sergeant/E-5.

7.  His DA Form 2-1 (Personnel Qualification Record) shows he was assigned to Company A, 2nd Battalion, 60th Infantry Regiment, 9th Infantry Division, Fort Lewis, WA, from 8 April 1976 to 28 December 1976.  During the period of his assignment he was AWOL, for a period of 77 days, from 28 August 1976 to 12 November 1976.

8.  His available military record does not contain any medical records.

9.  His record contains a DD Form 458 (Charge Sheet), dated 22 November 1976, which shows he was charged with being AWOL from on or about 28 August to on or about 13 November 1976.

10.  On 24 November 1976, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge and the issuance of an Undesirable Discharge Certificate, and the procedures and rights that were available to him.  Subsequent to receiving this legal counsel and without coercion, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

11.  In this request for discharge he acknowledged he understood if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  Although the applicant indicated that he submitted statements in his own behalf along with his request, there are none filed in his military record.

12.  On 17 December 1976, the Commander, Headquarters U.S. Army Personnel Control Facility, U.S. Army Garrison, Fort Lewis, WA, recommended approval of the applicant's request for discharge for the good of the service.  The commander stated the applicant had two previous 3-year enlistments in the Army, as well as a 2-year and 11-month enlistment in the inactive reserve between active duty hitches.  He served 9 months in Europe and 12 months in Vietnam.  He was decorated with the NDSM, VSM, and RVNCM.  He received honorable discharges for both enlistments.  Just prior to his third enlistment, (the applicant) was married.  He states that he and his wife discussed his reentry to active duty as a way of life; both thought it best and he reenlisted in November 1975.  (The applicant) was fully aware of hardships that could be incurred as an infantryman in a line division.  When difficulty arose in his marital affairs the applicant had a change of heart and decided that the Army way of life was not suited for him and his family.  (The applicant) states that he fell into financial trouble while in the service, yet failed to work during his period of AWOL.  The fact that he was apprehended and did not surrender to military control shows that he was definitely not motivated to return to military life.  Although successful service in Vietnam normally earns an individual a General Discharge, (the applicant's) career has been interrupted twice by breaks in service.  His Vietnam service was during an enlistment for which he earned an honorable discharge.  His present enlistment of approximately 1 year has been marred by an 84 (i.e. 77) day AWOL and is not deserving of other than an undesirable discharge and such is recommended.

13.  On 22 December 1976, the separation authority approved his request for voluntary discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial, with an Undesirable Discharge Certificate and reduction to the lowest enlisted grade.  Accordingly, he was discharged on 28 December 1976.

14.  His DD Form 214 confirms he was discharged on 28 December 1976 in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial and that he received an under other than honorable conditions characterization of service.  He completed 9 months of net active service during this period of service and had 84 (i.e. 77) days of lost time from 28 August to 13 November 1976.

15.  His DD Form 214 for the period ending 28 December 1976, as corrected by a DD Form 215 (Correction to DD Form 214), dated 23 October 1987, shows that in addition to the previously mentioned awards and decorations he was awarded the ARCOM, Marksman Marksmanship Qualification Badge, and Sharpshooter Marksmanship Qualification Badge.

16.  On 27 October 1987, the President of the Army Discharge Review Board (ADRB) notified the applicant that after careful review of his application, military records and all other available evidence, the ADRB determined that he was properly and equitably discharged.  Accordingly, his request for a change in the character and/or reason of his discharge was denied.

17.  He provides: 

	a.  a letter from a civilian psychologist, dated 28 August 1985.  The psychologist stated the applicant had been seeing him for PTSD counseling assessment, diagnosis, and counseling under VA contracts since August 1982.  He had a doctorate in Counseling Psychology and had counseled military and veterans since 1976 in private practice and public agencies.  He stated that the applicant's intense and constant PTSD symptoms included:  quick anger at any government or bureaucratic entity when their actions appear unfair; startle reflex and a tendency to react under stress with survival tactics; flashbacks and intrusive, recurring thoughts about several service experiences and observances; sleep disturbances and nightmares; fear of losing others close to him, while at the same time holding loved ones at an emotional distance, especially his children.  Other PTSD symptoms include numerous (reportedly 30-40) jobs since his return from Vietnam and approximately 25-30 moves.  He specifically cited the applicant's recollection of seeing American bodies "stacked like cordwood," often with no body bags and having to live, eat, and work with the sight and smell of these bodies for up to 2 weeks at a time.  Also during this time, one of his jobs was as a foot courier/messenger between ships and the groups in the field which required him to carry documents pertaining to troop movement and deployment, mostly at night and often in and out of Viet Cong territory which was very stressful.  However, he was also intensely proud, loyal, and involved in his country and the Army as the working protector of democracy and freedom.  This was apparently his way of sanctioning what he saw and did in Vietnam.  Therefore, when the Army told him that he could be with his wife when she delivered their child, that fit well with his belief and integrity system.  However, when the Army later reportedly did not allow him the leave requested, it appears he made a choice in favor of his family.  This feeling of "family above all" is a common denominator of many Vietnam PTSD victims.  It is also very possible that this reverse on the part of the Army was too close to the experiences in Vietnam of being sent out to deliver a message and find that the squad had been moved - leaving the applicant out without cover or closure.  The psychologist suggested that this alone would be enough to trigger a stress reaction such as his AWOL depicts.

	b.  a Board of Veterans' Appeals Docket, dated 9 October 1991, which shows:

		(1)  in February 1990, the Board of Veterans' Appeals granted service connection for PTSD in accordance with the VA Schedule for Rating Disabilities (VASRD) Code 9411 (PTSD - Non-Combat/Stressful Event).

		(2)  a March 1990 rating action assigned a 30 percent disability rating from August 1987.

		(3)  that he successfully appealed the 30 percent rating and his rating for service-connected PTSD was increased to 70 percent. 

		(4)  the bases for the findings and conclusions included:

* he slept with loaded weapons near his bed
* his sleep was disturbed by frequent awakening due to nightmares of Vietnam
* a mental status examination showed a depressed affect and he gave the impression of expending much energy controlling his anger
* he stated that he felt depressed and suicidal
* he had recurrent and intrusive distressing daily recollections about Vietnam and almost daily dreams and nightmares about Vietnam
* he had some diminished interest in significant activities, and feelings of detachment and estrangement from others
* he complained of outbursts of anger, difficulty concentrating, hypervigilance and an exaggerated startle response
* his symptoms of PTSD had increased and these symptoms had an adverse effect on his interpersonal relationships and industrial adaptability

	b.  a VA rating decision, dated 23 February 2012, which shows the VA awarded him service-connected disability compensation for PTSD incurred during the Vietnam Era with a 70 percent rating from 17 August 1987 and a 100 percent rating from 14 January 1992.

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.  At the time, an undesirable discharge was normally given.

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 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." 

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 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. 

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 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.  

23.  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.

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 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 had to live, work, and eat in the vicinity of the bodies of fallen Soldiers
* the courier missions that required him to venture into areas controlled by the Viet Cong in order to deliver messages
* the later denial of paternity leave during his wife's difficult pregnancy



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.  The applicant's record is void of any serious previous misconduct during this period of service and the misconduct of going AWOL appears to have been an isolated event that was the result of an uncharacteristic lapse in judgment.

7.  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 28 December 1976 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)                                         AR20140004034



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ABCMR Record of Proceedings (cont)                                         AR20140004034



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