IN THE CASE OF:  	  

		BOARD DATE:  19 February 2015  	  

		DOCKET NUMBER:  AR20140007628


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) to an honorable discharge.

2.  The applicant states that the characterization of his service was inequitable as he was suffering from severe Post-Traumatic Stress Disorder (PTSD) which resulted from his service in the Republic of Vietnam.  He committed two offenses after returning from combat in Vietnam that under today's guidelines would have resulted in a medical diagnosis and an honorable discharge rather than the discharge he received.  He served honorably his entire time in service, including in combat, up to the time that he made a bad decision.  One bad mistake has erased all the good he did while serving in the Army before and during Vietnam.

3.  The applicant further states there are two reasons why he feels the characterization of his discharge is unjust.  PTSD was not a medical condition until 1980, nine years after his separation from the service.  There was no screening and diagnosis available that would have given him the treatment he needed to deal with PTSD.  Now, any mood disorder or personality changes are treated as a medical condition.  Soldiers returning from combat are receiving disability compensation (for the same actions he did) because they are diagnosed with PTSD.  It is not fair that at any time there was no information available regards to PTSD and now 43 years later, there is a wealth of knowledge on the subject.  He also believes it is unfair to characterize his entire time in the Army by actions that were an anomaly.  His character before and after the incident have been exemplary.  He has been able to work successfully, had been a productive member of his community and is sought out by members of the community when they need help.

4.  The applicant provides:

* Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim)
* a Certificate of Combat Service
* a letter from a Veterans Service Officer (VSO)
* two reference letters

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 5 December 1967.  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.  However, he held the rank/grade of private (PV1)/E-1 at the time of his discharge.

3.  His military service record reveals a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on 17 January 1968 for disobeying a lawful written order from a commissioned officer to remain in the unit area.

4.  Item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal Date Expiration Term of Service (ETS)) of his DA Form 20 (Enlisted Qualification Record) shows he had lost time from 6 to 29 May 1968, due to (absence without leave (AWOL).

5.  The applicant's DA Form 20 shows he arrived in the Republic of Vietnam on 1 June 1968 and he was assigned to C Battery, 1st Battalion, 11th Artillery, 9th Infantry Division on 15 June 1968.
6.  Special Court-Martial Order Number 2, issued by Headquarters, 1st Battalion, 11th Artillery, dated 7 June 1969, shows the applicant appeared before a special court-martial and he was found guilty of violating Article 86 of the UCMJ by being absent without leave (AWOL) from 17 September until 7 October 1968.

7.  Item 44 of his DA Form 20 shows he had additional lost time during the following periods for the reasons shown:

* from 27 July to 19 October 1968, due to AWOL
* from 3 November to 9 December 1969, due to AWOL
* from 10 December 1969 to 19 June 1971, due to confinement in the hands of civil authorities (CHA)

8.  Special Orders Number 40, issued by Headquarters, U.S. Army Training Center, Infantry and Fort Lewis, WA shows the applicant was dropped from the rolls of his organization effective 10 December 1969 due to being CHA at the Washington State Corrections Center, Shelton, WA.

9.  On 21 May 1971, the applicant's unit commander advised him that he intended to recommend him for discharge under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, Absence without Leave, Desertion)) by reason of a conviction and sentence by a civil court.  The commander told the applicant that he may receive an Undesirable Discharge Certificate as a result of this action and advised him of his rights.  On 21 May 1971, the applicant acknowledged receipt of this notification and indicated that he desired to waive his rights to have legal representation, or submit statements in his own behalf.

10.  On 4 June 1971, the applicant's unit commander recommended his discharge from the service under the provisions of Army Regulation 635-206 and the issuance of an undesirable discharge.  The commander cited the applicant's aforementioned punishments under Article 15, Special Court-Martial, and his civil conviction for commission of a felony offense.  The applicant's intermediate level commanders concurred with the unit commander's recommendation.

11.  On 14 June 1971, the separation authority, a major general, approved the applicant's discharge and directed the issuance of an Undesirable Discharge Certificate.

12.  On 19 July 1971, the applicant was discharged accordingly.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of Army Regulation 635-206 due to his conviction by a civil court during the current period of active service.  His service was characterized as UOTHC.

13.  The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his undesirable discharge.  On 16 May 1977, The Adjutant General informed the applicant that after careful consideration of his military records and all other available evidence, the ADRB determined he was properly and equitably discharged.  Accordingly, his request for a change in the type and nature of his discharge was denied.

14.  The applicant provides:

	a.  a self-authored VA Form 21-4138, dated 17 March 2014, wherein he rendered the following statement in support of a claim for VA benefits:

I served honorably in the Army until I reached the point where everything that happened in Vietnam caught up with me.  I was in Vietnam from 1 June 1968 until 20 June 1969.  During my tour in Vietnam I put the horrors of the war I saw and the experiences I lived through behind me in the back of my consciousness.  This allowed me to stay engaged in the day-to-day missions.  When I returned to the states the availability of alcohol created an overwhelming opportunity to escape my thoughts of the war.  Alcohol allowed me to sleep at night.  However, drinking became drinking in excess.  My friends changed.  Regrettably the excess in alcohol led to making bad decisions.  Returning to the states I committed two nonviolent offenses against the people of the State of Washington.  These actions have disturbed and haunted me ever since.

In 1978, I was released from the Washington State penal institution for Burglary and Grand Larceny.  I have tried to change my life.  I stopped drinking,  Although I know I will not completely recover from Vietnam I have been able to work from time to time (Reference letter, dated 14 February 2014 from retired U.S. Air Force Brigadier General O------
H---------).

	b.  a Certificate of Combat Service presented in recognition of his service with the 9th Infantry Division in armed conflict against insurgent forces in the Republic of Vietnam.

	c.  a letter rendered by a VSO at the Missouri Veterans Commission located at Fort Leonard Wood, MO, on 10 April 2014.

The VSO stated that he had been working with the applicant for several months in an attempt to accumulate the necessary documentation to present reasonable case to the ABCMR for an upgrade of his discharge.
The VSO sincerely believes that although the applicant did violate both military and civilian law, there are extenuating circumstances.  He had spent a significant amount of time with the applicant and felt assured that he is both sorry for his past decisions and had been striving to become a productive member of society.  He has been proactive in getting letters of recommendation, kept appointments and stays in contact with the VSO to assist in the efforts on his behalf.  The VSO has gotten to recognize the applicant as a somewhat shy man, trying to age gracefully, helping friends, currently in a long-term relationship wand with at past the he regrets.

In the VSO's opinion, the applicant suffered from undiagnosed PTSD when he returned from Vietnam.  Vietnam veterans returning from Vietnam did not receive the kind of counseling they do now returning from Iraq and Afghanistan.  As addiction psychiatrists JM Schnitt and JJ Nocks pointed out, "Vietnam veterans with alcoholism and PTSD are a clinically problematic population" (cited from The Nebraska VA internet website).

The applicant turning to alcohol was not uncommon then, or now.  As the national Center for PTSD points out: 60 to 80 percent of Vietnam veterans seeking PTSD treatment have alcohol disorders.  They further point out:  "Alcohol. Use and intoxication also increase emotional numbing, social isolation, anger and irritability, depression, and the feeling of needing to be on guard (hyper vigilance) (cited from the Substance Abuse and mental Health Services Administration internet website).

Since the applicant's separation from the service in 1971, the military has also changed their rationale in the treatment of Soldiers displaying the types of problems that war creates in Soldiers returning from combat.
Army Regulation 40-5 (Medical Fitness Standards for Retention and Separation), chapter 3, refers service members to medical evaluation boards (MEBs) for:  disorders with psychotic features (paragraph 3-31), mood disorders (paragraph 3-32), anxiety, somatoform and dissociative disorders (paragraph 3-33).  The chapter sums up "The causes for referral to and MEB include persistence of symptoms or associated personality change sufficient to interfere with the performance of duty or social adjustment."

The VSO believes these character and personality difficulties, which the applicant agonized through, if identified today, would have resulted in medical treatment.  The attitude of the Army has also changed since the Vietnam War.  Now rehabilitative counseling is required when Soldiers demonstrate "personality disorder" (cited from Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 1-16, updated 6 September 2011).

The VSO attests it is a shame that the psychiatric problems the applicant developed as a result of his combat experience were not diagnosed and he turned to alcohol to sedate the effects of PTSD.  The punishment of his discharge is much worse that what Soldiers returning from Iraq and Afghanistan are receiving for similar situations today.  In this guard, the applicant is an excellent example of being a victim of his times.

Finally, disapproval of the war from American citizens was an important environmental factor.  Prior to the Vietnam War veterans were considered heroes.  During the Vietnam War they were considered murderers.  The VAO knows from personal experience as an Army Recruiter in the 1980s.  His first day in the high school in Manhattan Beach, CA where he was approached by students and asked "How many babies did you kill in Vietnam?"  Let us not forget that Soldiers do not choose their wars, politicians do.

Let's do the right thing after 43 years and give the applicant the dignity he deserves with an honorable discharge.

	d.  a reference letter rendered by a retired U.S. Air Force brigadier general (BG), dated 14 February 2014, wherein the BG states the applicant had worked for him for the better part of 4 years.  He found the applicant to be punctual, reliable and highly motivated.  He was always willing to do what was necessary to get the task done.  He would be pleased to have the applicant work for him again.

	e.  a reference letter rendered by the applicant's fiancée who had known him for about 3 and a half years at the time, but felt like she had known him her entire life.  She stated the applicant is a very honorable man and has great respect for the ladies.  She could not imagine him hurting anybody in any way.  She and the applicant had lived together for about 3 years and were engaged to be married.  They had recently started going to church every Sunday and he has great love for their God and believes in Jesus and family.  They live on $710 per month, but yet he's always finding ways to help others.  He is a good man.

15.  The applicant's record is void of any medical evidence and he has not provided any medical evidence showing that he was diagnosed with any type of medical or mental condition either during or after his period of service. 

16.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  This regulation provided, in pertinent part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action had been taken against them which was tantamount to a finding of guilty, for an offense for which the maximum penalty under the UCMJ was death or confinement in excess of 1 year.

17.  Army Regulation 635-200, currently in effect, sets forth the basic policy for the separation of enlisted personnel.  Paragraph 3-7a states an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  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.  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.

18.  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." 

19.  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.

20.  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. 

21.  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 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.  

22.  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.



23.  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?

24.  Although the 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 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-civil conviction 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 deployed to Vietnam and could have been subjected to the ordeals of war while serving in there.  However, there are no documented incidents of specific traumatic events.

5.  The applicant's record is void of any evidence and he has not provided sufficient medical evidence that shows the applicant was diagnosed with PTSD/PTSD-related symptoms by a competent mental health professional at any time.  Therefore, there is no reason to presume the applicant suffered from PTSD at the time of discharge. 

6.  In view of the foregoing and in the absence of a PTSD diagnosis, it cannot be concluded that 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 insufficient mitigating evidence to warrant upgrading the characterization of the applicant's service to a general discharge under honorable conditions.





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___ DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   _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)                                         AR20140007628



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