IN THE CASE OF:	  

		BOARD DATE:	  10 March 2015

		DOCKET NUMBER:  AR20140011394 


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 upgrade of his general discharge under honorable conditions to an honorable discharge.

2.  The applicant states:

* his original 12-month assignment in South Korea was extended to 18 months due to the USS Pueblo crisis
* his tour in Korea was stressful and frightening
* he had an excellent service record and was promoted to the rank of sergeant
* the stress of his tours in Korea and Germany combined with his only brother's tour in Vietnam and the racially-charged environment caused him to experience post-traumatic stress disorder (PTSD)
* his age, circumstances, and PTSD greatly influenced his state of mind, judgment, and ability to properly respond to a bad situation
* he was charged with interfering with a military police officer in the line of duty, but he acted to help a fellow African American Soldier who was being beaten by multiple white military police officers after being subdued
* he acted instinctively to protect a fellow Soldier
* he never actually touched the police officer but rather put out his hand to prevent a further blow to the other Soldier
* at the time of his discharge he was informed the character of his service would be honorable
* he did not become aware of the meaning of his discharge until he applied for a veteran's identification badge on 12 May 2014
* he has served his community as a church pastor for over 30 years and served as a probation officer and Equal Employment Opportunity/
Affirmative Action officer for over 27 years

3.  The applicant provides a self-authored letter to a veterans' service officer.

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 8 September 1966.  He served in Korea from 20 February 1967 through 18 April 1968 and in Germany from 6 June 1968 through 18 August 1969.

3.  He received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on the following occasions:

* 4 March 1969, for failing to go at the time prescribed to his appointed place of duty on 4 March 1969
* 26 May 1969, for failing to go at the time prescribed to his appointed place of duty on 23 May 1969

4.  He received a letter of admonition from his company commander on 23 May 1969, which was placed in his official military personnel file, informing him that his personal and military conduct were judged to be substandard.

5.  On 15 August 1969, he was tried by a special court-martial for charges preferred against him for the following offenses:

* assaulting a military policeman in the execution of his duties by striking him with his fist
* three specifications of sleeping while performing charge of quarters duty
* absenting himself from his appointed place of duty

6.  On 15 August 1969, he was found guilty of assault while the other two charges were dismissed.  He was sentenced to be restricted to the limits of Cambrai-Fritsch Kaserne for 30 days and to forfeit $100 per month for a period of 1 month.

7.  His records contain a DA Form 1811 (Physical and Mental Status on Release from Active Service) which reflects his physical condition on 21 August 1969 was such that he was considered physically qualified for separation or reenlistment without reexamination.

8.  There is no evidence of record and the applicant has not provided any corroborating evidence that he was diagnosed with PTSD or PTSD-like symptoms or that he experienced a traumatic event which could have been the catalyst for his misconduct.

9.  Although the applicant's discharge packet is not available for review, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was released from active duty under honorable conditions for the convenience of the government on 21 August 1969 as an oversea returnee under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-14.  He was credited with 2 years, 11 months, and 14 days of active military service.

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

	a.  Paragraph 5-14, in effect at the time, provided that enlisted members of the Regular Army and the Reserve Components who, upon arrival in the United States from an overseas assignment, had less than 3 months remaining before expiration of term of enlistment or period for which ordered to active duty would be discharged, released from active duty and returned to former Army National Guard or U.S. Army Reserve (USAR) status, or released from active duty and transferred to the USAR, as appropriate.  Separation Program Number (SPN 411) would be included in directives or orders directing individuals to report to the appropriate transfer activity for discharge or release from active duty, as appropriate.

	b.  Paragraph 1-9d, in effect at the time, stated an honorable discharge was a separation with honor.  Issuance of an honorable discharge would be conditioned upon proper military behavior and proficient performance of duty during the member's current enlistment of current period of service with due consideration for the member's age, length of service, grade, and general aptitude.  Where a member served faithfully and performed to the best of his ability and was cooperative and conscientious in doing his assigned tasks, he could have been furnished an honorable discharge.  Where there were infractions of discipline, the extent thereof was to be considered, as well as the seriousness of the offense(s).  It was the pattern of behavior and not the isolated instance which was to be considered the governing factor in determination of the character of service to be awarded.

11.  PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster.  The Diagnostic and Statistical Manual (DSM) of Mental Disorders is published by the American Psychiatric Association (APA) and 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 nosologic classification scheme.  Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice.  From a 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."

12.  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.

13.  The fifth edition of the DSM 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 criterion 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; or

		(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; or

		(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; or

		(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); and

		(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; and

		(6)  sleep disturbance.

	f.  Criterion F – Duration:  Persistence of symptoms (in Criteria B, C, D, and E) for more than 1 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.

14.  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 Soldiers' 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 a 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.

15.  On 3 September 2014 in view of the foregoing information, 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 applicants' service.

16.  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?

17.  Although 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 records 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.  BCM/NRs 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.  BCM/NRs 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 applicant's discharge proceedings 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 his overall record of military service in accordance with the governing regulations in effect at the time.

2.  At the time of his 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 records and the evidence he provided do not show he was subjected to a traumatic event during his military service or that he ever suffered from or was diagnosed with PTSD or PTSD-like symptoms.  Therefore, it cannot be concluded that PTSD conditions were a causative factor in the misconduct that led to the characterization of his service.

5.  He received NJP on two occasions, a letter of admonition was placed in his official military personnel file, and he was found guilty of assault by a special court-martial.  This pattern of poor behavior was clearly considered the governing factor in the determination of the character of service he was awarded.

6.  Based on his record of indiscipline, the applicant's service clearly did not meet standards of conduct and performance of duty so meritorious as to warrant an honorable characterization of service.  In view of the foregoing there is no basis for granting the requested relief.

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 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)                                         AR20140011394



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ABCMR Record of Proceedings (cont)                                         AR20140011394



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