IN THE CASE OF:	  

		BOARD DATE:	  10 March 2015

		DOCKET NUMBER:  AR20140010524 


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 reconsideration of his earlier request for an upgrade of his bad conduct discharge (under other than honorable conditions discharge) to a general discharge. 

2.  The applicant states he served a full term from May 1964 to May 1966 with an honorable characterization of service.  During his second period of service, he served a full 13 months in Vietnam as a combat medic.  He returned to the United States and began having problems.  Since being under his doctor's care for post-traumatic stress disorder (PTSD), he is realizing many of the bad decisions and behaviors were a result of PTSD.  His psychologist describes his PTSD as severe and that he has been suffering from this condition for 40 years.  He believes his decision not to return to duty from leave was a result of his PTSD.  He also believes his prostate cancer is related to exposure to Agent Orange while in Vietnam.  He received a Pardon from President Ford in 1975; but this does not allow him to receive benefits from the Department of Veterans Affairs (VA).  Many of the Soldiers at the time refused to go to Vietnam; he, on the other hand, did.  It has been 40 years since his discharge and he is now 
72 years of age, at risk of losing his home, is financially struggling, and needs help. 

3.  The applicant provides:

* VA denial of benefits
* Pardon Certificate
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 
* DD Form 215 (Correction to DD Form 214, Report of Separation from Active Duty)
* Clemency Discharge Certificate
* Congressional correspondence
* Letter to the President of the United States 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR1999015983, on 4 February 1999.

2.  The applicant does not meet the two-tiered criteria for a request for reconsideration in that his request is neither received within one year of the original Board's decision nor does it contain any new evidence.  However, in view of the recent Secretary of Defense guidance regarding behavioral health issues of Vietnam veterans, his request will be considered by the Board. 

3.  The applicant received a civil waiver (drunk driving in September 1959 and disturbing the peace in September 1961) for induction into the Army of the United States on 27 December 1963.  

4.  He was inducted into the Army of the United States and entered active duty on 22 May 1964.  He was trained in and held military occupational specialty 91A (Medical Corpsman).  

5.  On 16 October 1964, while in training at Fort Sam Houston, TX, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for causing a breach of the peace by using provocative language towards two Soldiers by saying he was going to put them in the hospital. 

6.  He was honorably released from active duty on 20 May 1966 and he was transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his remaining service obligation.  His DD Form 214 shows he completed 1 year, 11 months, and 29 days of active service.

7.  He enlisted in the Regular Army on 28 June 1966.  He subsequently served in Vietnam from 20 July 1966 to 19 July 1967.  He was assigned to Headquarters and Headquarters Company, 1st Cavalry Division. 
8.  On 19 May 1967, while still in Vietnam, he accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty. 

9.  Following completion of his Vietnam tour, he was reassigned to the 3rd Battalion, 43rd Artillery Regiment, Edgemont, PA. 

10.  On 31 May 1968, he departed his unit in an absent without leave (AWOL) status and a month later, he was dropped from the Army rolls as a deserter.  He returned to military control on 5 October 1968.  

11.  Following his return, he was placed in pre-trial confinement pending a court-martial and his Secret security clearance was locally suspended.  He was assigned to the Special Processing Detachment, Fort Devens, MA. 

12.  On 31 October 1968, consistent with his pleas, he was convicted by a special court-martial of one specification of being AWOL from 31 May to
5 October 1968.  The court sentenced him to a forfeiture of $40 pay for 4 months and a reduction to the lowest enlisted grade.  The convening authority approved his sentence on 5 November 1968. 

13.  On 17 November 1968, he again departed his unit in an AWOL status and on 16 December 1968, he was dropped from the Army rolls as a deserter.  He returned to military control on or about 21 April 1970.  Following his return, he was placed in pre-trial confinement pending a court-martial.

14.  On 25 May 1970, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he 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.   In his request for discharge he indicated that:

* he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person
* he did not desire any further rehabilitation under any circumstances because he had no desire to perform further service
* he acknowledged he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions
* he acknowledged he understood that if the 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
* he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he elected to submit a statement in his own behalf

15.  In his statement, he stated: 

* He served in Vietnam as a medic for a whole year without incidents; he was advanced to E-5 and received many awards and decorations
* His problems began when he returned from Vietnam; he learned that his mother was drinking too much and on the verge of becoming an alcoholic
* No one in the family could control her but him and that is why he went AWOL 
* Upon his return from AWOL, he was convicted by a court-martial and received a light sentence; his mother started drinking again
* He also has three children from his first wife and two children from a woman he was living with 
* While he was AWOL, he was able to work and take care of his family; he wanted to be discharged in order to help his family 

16.  Consistent with the chain of command's recommendations the separation authority disapproved the applicant's request for voluntary discharge for the good of the service - in lieu of trial by a court-martial in accordance with Army Regulation 635-200, chapter 10.  The applicant was advised of this disapproval on 9 June 1970. 

17.  On 10 June 1970, consistent with his guilty plea, he was convicted by a general court-martial of one specification of being AWOL from 17 November 1968 to 22 April 1970.  The court sentenced him to a bad conduct discharge, a reduction to the lowest enlisted grade, a forfeiture of all pay and allowances, and confinement at hard labor for 6 months.  

18.  On 4 August 1970, the convening authority approved the sentence and, except for that part of the sentence extending to a bad conduct discharge, he ordered the sentence executed.  He also ordered the record of trial to be forwarded to The Judge Advocate General of the Army for appellate review and he ordered the applicant to be confined.

19.  On 16 September 1970, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

20.  There is no indication he petitioned the U.S. Court of Military Appeals for a grant of review. 

21.  Headquarters, Fort Devens, MA, General Court-Martial Order Number 102, dated 21 September 1970, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge executed. 

22.  The applicant was discharged from the Army on 24 September 1970.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion)) as a result of court-martial.  This form further shows his character of service as under other than honorable conditions and he was issued a Bad Conduct Discharge Certificate.  He completed 2 years and 7 months of active service during this period.  He also had 800 days of lost time. 

23.  On 10 December 1975, he was awarded a Clemency Discharge pursuant to Presidential Proclamation 4313, dated 16 September 1974.  He was issued a
DD Form 214 and a Clemency Discharge Certificate. 

24.  On 4 February 1999, the Board denied his petition for an upgrade of his discharge. 

25.  On 20 June 2006, the Board’s staff determined his request for reconsideration did not meet the criteria and as such, his case was returned without action. 

26.  He provides: 

	a.  A letter, dated 9 May 2014, from the VA denying him service-connection for PTSD and prostate cancer. 

	b.  A Presidential Certificate signed by the Adjutant General confirming his Clemency Discharge.  

	c.  Congressional correspondence.

	d.  A letter to the President of the United States. 

27.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel:

   a.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

   b.  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.  

28.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, 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 moderate the severity of the punishment imposed.

29.  Presidential Proclamation 4313, issued on 16 September 1974, provided for the issuance of a clemency discharge to certain former Soldiers, who voluntarily entered into and completed an alternate public work program specifically designated for former Soldiers who received a less than honorable discharge for AWOL-related incidents between August 1964 and March 1973.  Under this proclamation, eligible deserters were given the opportunity to request discharge for the good of the service with the understanding that they would receive an undesirable discharge.  Upon successful completion of the specified alternative service, the deserter was issued a clemency discharge.  The clemency discharge did not affect the individual’s underlying discharge and did not entitle him to any VA benefits.  Rather, it restored federal and, in most instances, state civil rights which may have been denied due to the less than honorable discharge.  If a participant of the program failed to complete the period of alternative service the original undesirable characterization of service would be retained.

30.  PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster.  Military Sexual Trauma and Stalking are stressors that could lead to PTSD.  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." 

31.  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.

32.  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. 

33.  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.  

34.  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.

35.  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?

36.  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 causal relationship of symptoms to the misconduct.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant's trial by a general court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  This Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

2.  With respect to his arguments:

	a.  Contrary to his contention that his actions were caused by his combat experience, the evidence of record clearly shows his misconduct began prior to his induction, upon his induction, during his combat tour, and after his return from Vietnam.  

	b.  There is no evidence in his records and he provides none to show a diagnosis of a behavioral health or any other medical condition.  Likewise, there is no evidence in his records that shows a behavioral/mental health issue was the cause of his extensive history of misconduct throughout his career.  His statement with his request for discharge indicates it was his mother’s health that caused his discharge.

	c.  The clemency discharge did not affect his underlying discharge and did not entitle him to any VA benefits.  Rather, it restored federal and, in most instances, state civil rights which may have been denied due to the less than honorable discharge.  

	d.  None of his contentions are substantiated, especially after the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence. 

3.  His service in Vietnam was considered.  However, his misconduct spanned his entire period of military service and a review of his entire record of service including his two instances of NJP, two court-martial convictions, and an extensive history of being AWOL clearly show his overall period of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  As such, he is not entitled to an upgrade of his discharge to either general or honorable. 

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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR1999015983, dated 4 February 1999.



      _______ _   __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)                                         AR20140010524



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ABCMR Record of Proceedings (cont)                                         AR20140010524



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