IN THE CASE OF:  	  

		BOARD DATE:  24 February 2015	  

		DOCKET NUMBER:  AR20140013505 


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, that his bad conduct discharge be upgraded to a general discharge.

2.  The applicant states he served honorably in combat in Vietnam.  He was not eligible for an early out at the time because he had more than 6 months time in service after his tour in Vietnam.  From the moment he departed the plane after returning from Vietnam to the United States, he and others were shamed and called baby killers.  His service, including his combat service, was honorable.  He is requesting this discharge upgrade so that he may receive service-connection for post-traumatic stress disorder (PTSD). 

3.  The applicant provides:

* Self-authored chronology of his life, dated 20 July 2010
* Self-authored letter to the Department of Veterans Affairs (VA)
* Certificate of Training 
* Newspaper article titled “More Vietnam Vets Seek Psychiatric Help”
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 
* DD Form 4 (Enlistment Record – Armed Forces of the United States)
* Standard Form 89 (Report of Medical History), dated 20 October 1970
* Standard Form 88 (Report of Medical Examination), dated 20 October 1970
* DA Form 20 (Enlisted Qualification Record)
* Initial Evaluation/Psychological Examination, dated 20 September 2012
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 AC72-00974B, dated 1 September 1982.

2.  The applicant does not meet the criteria for a request for reconsideration because his request was not received within 1 year of the Board's original decision.  However, in view of the Secretary of Defense's Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming PTSD, his request warrants consideration by the Board as an exception to policy.

3.  The applicant's records show he enlisted in the Regular Army on 29 June 1966 and he initially held military occupational specialty (MOS) 36K (Wireman).  

4.  He served in Vietnam from on or about 16 July 1967 to 15 July 1968.  He was assigned to the 168th Engineer Battalion in MOS 52B (Powerman) and the 104th Engineer Company in MOS 64B (Heavy Vehicle Driver).  

5.  Unit Orders Number 63, issued by Headquarters, 168th Engineer Battalion, promoted him to specialist four (SP4)/E-4 on 7 September 1967.  

6.  Following completion of his Vietnam tour, he was assigned to the 613th Engineer Battalion, Fort Carson, CO.  

7.  On 13 March 1969, he was convicted by a special court-martial of one specification of failing to go at the time prescribed to his appointed place of duty, one specification of being disrespectful in language toward a commissioned officer, and three specifications of dereliction in the performance of his duties. The court sentenced him to a forfeiture of pay and reduction to private two (PV2)/E-2.  The convening authority approved his sentence on 29 March 1969.  

8.  On 24 March 1969, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty at the time prescribed.  His punishment consisted of a reduction to private (PVT)/E-1. 

9.  On 21 April 1969, he again accepted NJP under the provisions of Article 15 of the UCMJ for disobeying a lawful order and absenting himself from his appointed place of duty. 

10.  On 20 August 1969, he was convicted by a general court-martial of:

* one specification of assaulting a commissioned officer by striking him on the body
* one specification of striking a noncommissioned officer by hitting him on the head
* one specification of disobeying a lawful general regulation by having an M7A2 canister of gas in his locker
* one specification of disobeying a lawful general regulation by having in his possession a switch blade knife
* one specification of wrongfully communicating a threat to kill a commissioned officer

11.  The court sentenced him to a bad conduct discharge, forfeiture of all pay and allowances, a reduction to the lowest enlisted grade of E-1, and confinement at hard labor for 18 months. 

12.  On 15 October 1969, 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 that the record of trial be forwarded to The Judge Advocate General of the Army for appellate review and ordered the applicant confined.

13.  On 15 April 1970, he was again convicted by a special court-martial of one specification of disobeying a lawful order and two specifications of unlawfully striking another private.  The court sentenced him to a forfeiture of pay for 3 months and confinement at hard labor for 3 months.  The convening authority approved his sentence on 6 May 1970. 

14.  On 6 May 1970, the U.S. Army Court of Military Review affirmed the general court-martial findings of guilty and only so much of the sentence as provided for a bad conduct discharge, forfeiture of all pay and allowances, confinement at hard labor for 1 year, and reduction to E-1.  

15.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 824, dated 28 August 1970, shows that, after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge executed. 

16.  On 14 September 1970, the U.S. Court of Military Appeals informed him that a petition for a grant of review was denied. 

17.  Headquarters, First U.S. Army, Fort Meade, MD, General Court-Martial Order Number 41, dated 2 October 1970, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge executed. 

18.  The applicant was discharged from the Army on 27 October 1970.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) as a result of court-martial.  This form further shows his character of service as under other than honorable conditions (UOTHC) and he was issued a Bad Conduct Discharge Certificate.  He completed 3 years, 1 month, and 18 days of active service during this period.  He also had 11 days of lost time prior to his discharge date and 418 days of lost time subsequent to his normal discharge date.  He was awarded or authorized the:

* National Defense Service Medal
* Vietnam Service Medal
* Republic of Vietnam Campaign Medal with Device (1960)
* two overseas service bars

19.  He provides, in pertinent part, a VA Initial Evaluation/Psychological Examination, dated 20 September 2010.  The examiner states that, all in all, the applicant is an individual who suffers from PTSD, chronic, moderate.  It is clear from his exposure to events while serving in the Army in Vietnam and the resultant symptoms expressed in this report that he suffers from PTSD.  His primary symptoms are re-experiencing, hyperarousal, and avoidance.  It is more likely than not that this condition developed immediately upon exposure to traumatic events in Vietnam.  His diagnosis is PTSD, chronic, moderate with depressive features.  

20.  He previously petitioned the ABCMR for an upgrade of his discharge on multiple occasions but his requests were either denied or returned without action. 

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

22.  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.

23.  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 (DSM) of Mental Disorders 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." 

24.  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.

25.  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. 

26.  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 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.  
27.  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.

28.  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?

29.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant's trial by a general court-martial, which led to his bad conduct discharge, 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.  The applicant's service in Vietnam is noted.  The Board wants him and all others concerned to know that its action in no way diminishes the sacrifices made by him in service to our Nation.  He and all Americans should be justifiably proud of his service in arms.  The Board also noted the circumstances at the time, including the conditions of the war.  However, unlike the thousands of Vietnam-era service members who experienced similar circumstances but served honorably and completed their military service, the applicant was convicted by a general court-martial due to the seriousness of his offenses.  

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 misconduct 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.  A review of the applicant's record and the evidence that he provided shows that he was subjected to the ordeals of war while serving in Vietnam.  Although he may not have been diagnosed with PTSD at the time of his discharge, years later and subsequent to his Vietnam experiences, medical evidence shows he was diagnosed with PTSD by a competent mental health professional.  Therefore, it is reasonable to believe the applicant's PTSD condition existed at the time of discharge. 

5.  The applicant was convicted by a general court-martial of multiple specifications of assault and communicating a threat to kill.  The Board carefully and cautiously weighed the mitigating evidence in the applicant’s case of serious misconduct and concluded that there is no likely causal relationship of the applicant’s symptoms to the misconduct for which he was convicted.  Therefore, it is concluded that the PTSD conditions were not a causative factor in the misconduct that led to the discharge. 

6.  Based on his extensive history of NJP and multiple court-martial convictions, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general 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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AC72-00974B, dated 1 September 1982.



      ___________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)                                         AR20140013505



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ABCMR Record of Proceedings (cont)                                         AR20140013505



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