IN THE CASE OF:  
	  

		BOARD DATE:  17 March 2015	  

		DOCKET NUMBER:  AR20140010486


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 to a discharge under honorable conditions (general).

2.  The applicant states:

* He was only 16 years old when he entered the service
* His date of birth was listed as 3 March 1947 when it actually is 22 November 1951
* Being a child, he did things to fit in with the men because he wanted to be accepted
* He admits to his wrong decisions and he has changed since he left the service
* When he returned home from war, he was diagnosed with post-traumatic stress disorder (PTSD) by a psychiatrist at Fort Ord, California
* Vietnam really damaged him as a young man and he has been in denial all of these years
* He needs medical, housing, and other benefits

3.  The applicant provides:

* Two Army Review Boards Agency letters (Undated)
* Amended Certificate of Birth (Amended Date – 19 May 1979)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Waterfront Rescue Mission letters dated, 13 February, 19 May, and 20 May 2014
* VISTA Electronic Medical Documentation Lab Results and Progress Notes
* U.S. Department of Veterans Affairs (VA), Pensacola Vet Center Intake Assessment dated 3 July 2014

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 26 October 1967.  His DD Form 47 (Record of Induction) shows his date of birth as 3 March 1947.

3.  While he was in training, the applicant accepted nonjudicial punishment (NJP) on 6 January 1968 for being derelict in the performance of his duties.

4.  The applicant went on to complete his training as a light weapons infantryman.  He was promoted through the ranks to pay grade E-3 on 7 April 1968.  He arrived in Vietnam on 8 April 1968.

5.  The applicant accepted NJP on three separate occasions between 4 November 1968 and 14 February 1969 for the following:

* Being absent without leave (AWOL)
* Failure to obey a lawful order
* Failure to be at his appointed place of duty
* Being in Saigon with no Identification Card, with a Ration Card and Social Security Card which did not belong to him, in a uniform that was in sloppy conditions
* Violating a lawful order of his company commander and the battalion standing operating procedures

6.  He departed Vietnam en-route to the United States on 9 April 1969.

7.  On 4 June 1969, the applicant accepted NJP for being disrespectful in language toward his superior noncommissioned officer.

8.  On 7 November 1969, the applicant was convicted by a special court-martial for the following offenses:

* Being AWOL from 20 July until 27 July 1969
* Being AWOL from 1 August until 9 August 1969
* Stealing a sports jacket, two suit jackets, three shirts, and four pair of trousers from another Soldier
* Putting another Soldier in fear and stealing from him $53.00

9.  He was sentenced to a reduction to pay grade E-1, a $450.00 fine, confinement at hard labor for 6 months, and to be discharged from the service with a bad conduct discharge (BCD).

10.  On 26 February 1970, the convening authority approved the sentence as adjudged and deferred payment of the fine until the sentence was ordered executed.  The applicant was ordered to be confined in the post stockade at Fort Ord, California, or elsewhere as competent authority may direct, pending completion of appellate review.

11.  On 27 March 1970, while in the stockade, the applicant was convicted by a special court-martial of communicating a threat to kill a specific Soldier and of assaulting another Soldier with his fists.  He was sentenced to confinement at hard labor for 4 months, and a forfeiture of $50.00 per months for 3 months.

12.  On 7 May 1970, the convening authority approved the sentence as adjudged and ordered the applicant to be confined in the post stockade at Fort Ord, California, or elsewhere as competent authority may direct.

13.  On 25 November 1970, the U.S. Army Court of Military Review having found the findings of guilty and sentence as approved by proper authority correct in law and fact and have determined, on the basis of the entire record, that the findings of guilty and only so much of the sentence as provided for a BCD, confinement at hard labor for 6 months, forfeiture of $70.00 pay per months for 6 months (deferred), and a reduction to pay grade E-1 should be approved, the same as thus modified were affirmed.

14.  United States Army Training Center, Infantry and Fort Ord, California, Special Court-Martial Orders Number 124, dated 19 May 1971, noted that only so much of the approved sentences as provided for a BCD, confinement at hard labor for 6 months, forfeiture of $70.00 pay per months for 6 months and reduction to pay grade E-1 had been affirmed.  The petition for grant of review pursuant to Article 67 was denied by the U.S. Court of Military Appeals on 11 May 1971.  The deferment of that portion of the sentence pertaining to forfeiture of $70.00 pay per month for 6 months was rescinded effective the date of the orders.  The forfeiture of pay was to become due on and after the date of the rescission.  The provisions of Article 71(c) having been complied with, the sentence as modified was ordered duly executed.  That portion of the sentence pertaining to confinement at hard labor for 6 months had been served.

15.  On 21 May 1971, the applicant was discharged pursuant to his court-martial sentence under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 11, as a result of a duly reviewed and affirmed special court-martial conviction.  He completed 2 years, 1 month, and 12 days of total active service.  He received a BCD certificate.

16.  On 22 March 1982, the Army Discharge Review Board (ADRB) reviewed his discharge and determined it was proper and equitable.  Accordingly, the ADRB denied his request for an upgrade of his discharge.

17.  The applicant provides a VA Intake Assessment dated 3 July 2014, in which he reports incidents that occurred throughout his life before, during, and after his military service.  He provides VISTA Electronic Medical Documentation Progress Notes dated 12 December 2014, which show he has been diagnosed with the following:

* Diabetes Mellitus
* Hypertension
* Seizures
* Migraine Headaches
* Dermatitis
* PTSD
* Hepatitis C

18.  He provides a copy of his Amended Certification of Birth which shows his date of birth as 22 November 1951 and three letters from Waterfront Rescue Mission attesting to his good character, good attitude, and his desire to improve over the last year.

19.  Title 10, U.S. Code, section 1552, the authority under which this Board acts, provides that the ABCMR is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy or instance of leniency to modify the severity of the punishment imposed.

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

   a.  Chapter 11 of the regulation in effect at the time states that a member will be given a BCD pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed.

   b.  Paragraph 3-7a states 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 states 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.

21.  Post-traumatic stress disorder 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." 

22.  Post-traumatic stress disorder 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.

23.  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) 

* Direct exposure 
* Witnessing, in person
* 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
* 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) 

* Recurrent, involuntary, and intrusive memories 
* Traumatic nightmares 
* Dissociative reactions (e.g., flashbacks) which may occur on a continuum from brief episodes to complete loss of consciousness 
* Intense or prolonged distress after exposure to traumatic reminders 
* 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)

* Trauma-related thoughts or feelings
* 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)

* Inability to recall key features of the traumatic event (usually dissociative amnesia; not due to head injury, alcohol, or drugs)
* Persistent (and often distorted) negative beliefs and expectations about oneself or the world (e.g., "I am bad," "The world is completely dangerous")
* Persistent distorted blame of self or others for causing the traumatic event or for resulting consequences
* Persistent negative trauma-related emotions (e.g., fear, horror, anger, guilt, or shame)
* Markedly diminished interest in (pre-traumatic) significant activities
* Feeling alienated from others (e.g., detachment or estrangement)
* 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)

* Irritable or aggressive behavior
* Self-destructive or reckless behavior
* Hypervigilance
* Exaggerated startle response
* Problems in concentration
* 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. 

24.  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.

25.  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.

26.  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?

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was convicted by a special court-martial for being AWOL, stealing from a Soldier, and putting another Soldier in fear and stealing from him $53.00.  He was sentenced to a reduction to pay grade E-1, a $ 450.00 fine, confinement at hard labor for 6 months, and to be discharged from the Army with a BCD.

2.  All requirements of law and regulation were met and his rights were fully protected throughout the discharge process.  His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

3.  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 conduct when the condition is not diagnosed and treated in a timely fashion.  Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible re-characterization of their overall service.

4.  The applicant's service in Vietnam is noted.  However, his offenses were serious and the reason for his discharge was clearly premeditated and was not related to any medical conditions (stress and/or depression) he may have been diagnosed with or related to his service in Vietnam.  His conduct rose to the level of him being convicted and discharged as a result of a duly approved and affirmed special court-martial conviction.  He received a BCD Certificate.  Even if he had been recently awarded service-connection for PTSD by the VA, the 

nature of the applicant's conduct (stealing and putting another Soldier in fear) has no relation to the PTSD or any stressors he claims.

5.  Although it is reasonable to believe he was subjected to the ordeals of war while serving in Vietnam, the nature of his offenses does not entitle him to an upgrade of his discharge.

6.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

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)                                         AR20140010486



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ABCMR Record of Proceedings (cont)                                         AR20140010486



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