IN THE CASE OF:  	  

		BOARD DATE:  3 February 2015		  

		DOCKET NUMBER:  AR20140008677 


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 under other than honorable conditions discharge.

2.  He states he is requesting an upgrade of his discharge so that he may file for the Department of Veterans Affairs (VA) benefits.  He offers that he is a Vietnam veteran who was exposed to Agent Orange and now suffers from ischemic heart disease, Type II diabetes, and Post-Traumatic Stress Disorder (PTSD).  He concludes that he is 64 years old and homeless.

3.  The applicant stated he provided "letter from church and friends;" however, no documents were provided with his application. 

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 15 August 1967.  He served in Vietnam from 6 February 1968 to 5 February 1969.

3.  His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice on:

* 23 November 1967 for failing to go at the time prescribed to his appointed place of duty on 21 November 1967
* 10 October 1968 for disobeying a lawful order on 5 October 1968
* 2 November 1968 for disobeying a lawful order on two separate occasions:  29 and 30 October 1968 
* 11 December 1968 for disobeying a lawful order on 3 December 1968
* 28 December 1968 for disobeying a lawful order on 28 December 1968 and for behaving with disrespect towards his commanding officer
* 1 April 1969 for being on post as watch with an unauthorized female person on 27 March 1969
* 11 July 1969 for failing to go at the time prescribed to his appointed place of duty on 3 July 1969
* 15 July 1969 for operating a privately owned vehicle without a valid driver's license and failing to yield the right of way at an intersection causing an accident on 23 June 1969

4.  On 29 May 1969, the applicant underwent a psychiatric evaluation at the Mental Hygiene Consultation Division, Fort Eustis, VA.  He was diagnosed with "mixed character disorder with features of immaturity and passive aggressive behavior."  The psychiatrist stated that the applicant could participate fully and actively in any or all administrative or judicial proceedings deemed necessary in his case.  The psychiatrist found:

   a.  There were no disqualifying mental or physical defects sufficient to warrant discharge under the provisions of Army Regulation 635-40A/B (Personnel Separations - Physical Evaluation for Retention, Retirement, or Separation).
   
   b.  The applicant was mentally responsible both to distinguish right from wrong and to adhere to the right and had the mental capacity to understand and participate in board proceedings.
   
   c.  His condition was not amenable to hospitalization, treatment, disciplinary action, training, transfer to another organization or station, or reclassification to another type of duty.
   
   
5.  On 15 July 1969, the unit commander notified the applicant of his intent to recommend his separation from the Army under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness.

6.  The applicant consulted with military counsel.  After being advised of the basis for the contemplated separation, its effects, and the rights available to him, he requested consideration of his case by a board of officers, personal appearance before a board of officers, and counsel.

7.  On 16 September 1969, the applicant appeared before an administrative separation board.  The board carefully considered the evidence concerning the applicant and found that he was undesirable for further retention in the military service because of habits and traits of character manifested by repeated commission of petty offenses.  He was also undesirable for habitual shirking and rehabilitation was not deemed possible.  In view of their findings, the board recommended the applicant be discharged from the service because of unfitness and issued an Undesirable Discharge Certificate.

8.  On 2 October 1969, the applicant submitted an appeal from elimination to the board.  In his appeal, he stated that his elimination from the service affected not only himself, but the Army and the country.  He continued by expounding on his military service and his duties and responsibilities in the units he served, to include Vietnam.  He concluded that he did not wish to be discharged and requested that he be retained in the Army and sent to where he could best serve.

9.  On 3 October 1969, after personally considering the evidence, the convening authority directed that the applicant be discharged with an undesirable discharge for unfitness under the provision of Army Regulation 635-212. 

10.  His DD Form 214 shows he was discharged under other than honorable conditions on 6 October 1969 and issued an Undesirable Discharge Certificate. The reason and authority for discharge was listed as Army Regulation 635-212. He completed 2 years, 1 month, and 20 days of total active service.

11.  On 8 November 1971, he appealed to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 4 February 1972, the ADRB denied his request for a discharge upgrade citing that he was properly discharged.

12.  The applicant's record is void of any evidence that shows he was diagnosed with PTSD.

13.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unsuitability and for unfitness.  Paragraph 6 of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

   b.  Paragraph 3-7a provides that 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.

   c.  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.  
   
15.  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." 

16.  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.

17.  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. 

18.  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.





DISCUSSION AND CONCLUSIONS:

1.  The applicant argues that his discharge should be upgraded so he can receive VA benefits.

2.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for VA benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the VA.

3.  He also argues, in effect, that his discharge should be upgraded because he suffers from PTSD and his indiscipline was based on PTSD. 

4.  There is no evidence and he did not provide any to show that he was diagnosed with PTSD or any other mental condition, or that he raised his mental conditions, as a possible defense at the time.  He provides no evidence now to show he has been diagnosed with a service-connected PTSD or other mental condition.  The evidence of record further shows he was discharged under the provisions of Army Regulation 635-212, unfitness, based on habits and traits of character manifested by repeated commission of petty offenses.  

5.  Additionally, he appeared before an elimination board that carefully considered the evidence and found that he was undesirable for further retention in the military service.  He appealed the board findings and the convening authority, after personally considering the evidence, directed he be discharged with an undesirable discharge for unfitness under the provision of Army Regulation 635-212.

6.  The available evidence confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The record further shows his discharge accurately reflects his overall record of service.  

7.  Based on this record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a general or an honorable discharge.

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)                                         AR20140008677





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ABCMR Record of Proceedings (cont)                                         AR20140008677



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