IN THE CASE OF:	  

		BOARD DATE:	  12 March 2015

		DOCKET NUMBER:  AR20140012255 


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, in effect, an upgrade of his general discharge under honorable conditions to an honorable discharge. 

2.  The applicant states, in effect, he was imprisoned for being black and for a crime he did not commit.  The alleged crime was a setup by his executive officer, the first sergeant, and the platoon sergeant.  During the first several weeks at Fort Sill, OK he could feel the hatred toward blacks.  When the platoon went to lunch at the mess hall a black Soldier came up to him and asked him what he should do because he was threatened with injury.  He told the Soldier to defend himself when the white Soldier got in his face to fight him.  As a fight broke out all the whites attacked the blacks and a riot took place.  Having taken the position of speaking up for the other black Soldiers, he was isolated and scrutinized.  The first sergeant came to him while he was sleeping in the barracks and wrestled him to the floor where the military police held and handcuffed him.  Prior to being taken to the stockade he was taken to the hospital where a white Soldier identified him as being the one who beat him up.  He was taken to the stockade and no charges were filed for approximately 5 months.  He would have taken responsibility if he had committed the crime.  Reliving being unlawfully incarcerated and forced to sign a bad conduct discharge (BCD) devastated him.  It left him emotionless toward family and friends.  He felt he would have had to stay in the stockade if he hadn't signed for the BCD.  The Army would not let him go to a court-martial because they knew they had no case.  


3.  He is claiming a right shoulder injury while in the service that still exists today. He is claiming 100 percent disability for post-traumatic stress disorder (PTSD) and the shoulder injury.  He also claims the Army should adjust his DD Form 214 to show 3 years of honorable service and the rank of sergeant/pay grade E-5.

4.  The applicant provides his DD Form 214 (Report of Separation from Active Duty) with an effective date of 14 December 1971.

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.  On 14 May 1971, he enlisted in the Regular Army for 2 years.  He completed basic combat training; however, he did not complete advanced individual training (AIT).

3.  He accepted nonjudicial punishment (NJP) on:  

* 2 July 1971, for failing to go at the time prescribed to his appointed place of duty
* 24 August 1971, for failing to go at the time prescribed to his appointed place of duty

4.  On 11 September 1971, the Commander, Battery C, 2nd Training Battalion, U.S. Army Training Center, Field Artillery, Fort Sill, OK assigned an unsatisfactory conduct and efficiency rating to the applicant.

	a.  He had an established pattern of shirking his duties.

	b.  He was pending a court-martial for violation of Articles 86, 91, 92, and 134 of the Uniform Code of Military Justice.

5.  On 25 October 1971, court-martial charges were preferred against the applicant for:

* being disrespectful toward a sergeant first class (SFC)
* failing to obey a lawful order from an SFC
* four specifications of breaking restriction
* being absent from his appointed place of duty
* on 22 October 1971, committing an assault on a private by striking him on the head with his fist and thereby intentionally inflicting grievous bodily harm upon him, to wit: a cut on his head

6.  His DA Form 20 (Enlisted Qualification Record) shows that on 26 October 1971 he was confined in the post stockade at Fort Sill, OK.  No release date was indicated.

7.  On 4 November 1971, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He acknowledged he had been afforded the opportunity to speak with counsel prior to making his request.  He acknowledged he understood the elements of the offense he was charged with and he was:

* making the request of his own free will
* making a statement in his own behalf (not available for review)
* advised he might be furnished an Undesirable Discharge Certificate

8.  He acknowledged he might expect to encounter substantial prejudice in civilian life if he were issued an undesirable discharge and he:

* would be deprived of many or all Army benefits
* might be ineligible for many or all veterans' benefits
* might be deprived of his rights and benefits as a veteran under both Federal and State laws

9.  In an undated statement defense counsel recommended the applicant's request be approved and that he be issued a general discharge under honorable conditions.

10.  On 4 November 1971, the applicant's company commander and battalion commander recommended approval of his request with the issuance of a general discharge under honorable conditions.  The Commander, U.S. Army Training Center Field Artillery, Fort Sill, OK recommended approval of his request with the issuance of an Undesirable Discharge Certificate.
11.  On 24 November 1971, the applicant submitted a request to withdraw his request for discharge for the good of the service.

12.  On 9 December 1971, the Commanding General, U.S. Army Field Artillery Center and Fort Sill disapproved his request to withdraw his request for discharge for the good of the service.  The commanding general approved the applicant's voluntary request for discharge and directed the issuance of an Undesirable Discharge Certificate.

13.  On 14 December 1971, he was discharged under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service with an undesirable discharge.  He completed 7 months and 1 day of total active service that was characterized as under conditions other than honorable.  His service medical records were not available for review.

14.  He applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 3 August 1979, the ADRB determined his discharge should be upgraded to a general discharge under honorable conditions.  On 3 August 1979, he was informed his discharge had been upgraded and he was provided a new DD Form 214.  Based on this upgrade the ADRB also restored his rank to private/E-2 (the highest rank that he held) with a date of rank of 14 September 1971.

15.  Army Regulation 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel.  

	a.  Chapter 10 stated a member who committed an offense or offenses for which the authorized punishment included a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate.  At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

	b.  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.

16.  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." 

17.  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.

18.  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. 

19.  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 (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.  

20.  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.

21.  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?

22.  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 causal relationship of symptoms to the misconduct.

23.  Title 38, United States Code, provides for the Department of Veterans Affairs (VA) to make a determination and award compensation for disabilities which were incurred in or aggravated by active military service.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his general discharge under honorable conditions was carefully considered.

2.  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.  He contends he was imprisoned and accused of a crime because he was black.  However, he has provided no evidence to support this contention.  



5.  He contends he was taken to the stockade and no charges were filed for 
5 months.  However, the evidence does not support this contention.  Court-martial charges were referred on 25 October 1971 and he was confined in the post stockade on 26 October 1971.  He was discharged on 14 December 1971, less than 2 months from the date of his incarceration.  

6.  He contends he was required to sign for a BCD and the Army would not let him go to a court-martial.  However, a BCD is only awarded as a result of a court-martial.  He voluntarily requested a discharge to avoid a court-martial.  Therefore, his contention is without merit.  

7.  His records are void of and he provided no evidence showing he was diagnosed with PTSD then or now.

8.  His voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  A discharge under other than honorable conditions is normally considered appropriate when a member is separated under the provisions of chapter 10.  The records contain no evidence of procedural or other errors that would have jeopardized his rights.

9.  The ADRB upgraded his undesirable discharge to a general discharge under honorable conditions.

10.  An honorable character of service is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel and an under honorable conditions character of service is appropriate for those Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  He did not complete AIT and the charges that were referred for court-martial were very serious in nature.  Therefore, he is not entitled to an honorable discharge.

11.  In view of the foregoing, there is no basis for granting the applicant an upgrade of his discharge.  

12.  He was properly discharged after he requested a discharge for the good of the service.  He completed 7 months and 1 day of active service.  Therefore, there is no basis for adjusting his DD Form 214 to provide for 3 years of active service.  The ADRB restored his rank to private E-2, which was the highest rank that he held.  There is no basis for adjusting his rank to sergeant/pay grade E-5.
13.  He contends he is claiming 100 percent disability for PTSD and a right shoulder injury.  Disabilities which are diagnosed or worsen after a Soldier is separated are treated and compensated for by the VA.  Any claims or issues concerning treatment or compensation for service connected disabilities should be addressed to that agency. 

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)                                         AR20140012255



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ABCMR Record of Proceedings (cont)                                         AR20140012255



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