IN THE CASE OF:	  

		BOARD DATE:	  14 April 2015

		DOCKET NUMBER:  AR20140014012 


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, under honorable conditions discharge.

2.  The applicant states he enlisted in the Regular Army (RA) in September 1968 for a period of 3 years for training as a medic or cook, but he was sent to infantry training.

   a.  He served with the 101st Airborne Division in the Republic of Vietnam (RVN).  He fought in the Battle of Hamburger Hill during the period 10 to 20 May 1969.

   b.  He was injured in November 1969 and hospitalized until April 1970.  He returned to the United States and went home to get married.  He found out his girlfriend had a boyfriend, which hurt him badly.

   c.  He states he should have been reassigned to the 101st Airborne Division at Fort Campbell, KY to complete his active duty obligation.  Instead, he was reassigned to the 2nd Armored Division at Fort Hood, TX.
   
   d.  From April 1970 to 3 September 1970, he served satisfactorily.  He was detailed to drive a tank (for 1 day) and then detailed to drive a jeep.  However, there were no Vietnam veterans in his company and the platoon sergeant picked on him.
   
   e.  He had plans to go home on Labor Day weekend to get back together with his girlfriend, but he was detailed to "kitchen police" (KP) duty.  He paid another Soldier to perform his KP duty.  However, when the Soldier reported for KP duty, the sergeant told him to leave and then reported the applicant absent without leave (AWOL).  He adds the sergeant was attempting to have him kicked out of the Army and that is when he left.  He returned to military control at Homestead Air Force Base, FL.

   f.  He was court-martialed at Fort Bragg, NC.  The judge noted his good record of service in Vietnam and sent him to an infantry company at Fort Benning, GA.

   g.  He states those who were inducted only had to serve 2 years in the Army. When they completed their tour of duty in Vietnam, instead of being reassigned to a unit in the United States, they were given an "early out."

   h.  He adds that he never got to be a medic or a cook, but he knows how to kill people.  Also, with early signs of post-traumatic stress disorder (PTSD), he knew something was wrong. 

3.  The applicant provides copies of a newspaper article, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a
DD Form 215 (Correction to DD Form 214), and a Florida Department of Education letter.

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.  A DD Form 4 (Enlistment Contract – Armed Forces of the United States) shows the applicant enlisted in the RA on 6 September 1968 for a period of 
3 years.  It also shows he enlisted for the "RA unassigned."  It does not show that he enlisted for any military occupational specialty (MOS) training option.
3.  Upon completion of training he was awarded MOS 11B (Light Weapons Infantryman).

4.  He attained the rank of specialist four (SP4)/pay grade E-4 on 13 March 1970.

5.  His DA Form 20 (Enlisted Qualification Record) shows in –

* item 31 (Foreign Service), he served in Vietnam from 12 April 1969 through 17 November 1969
* item 38 (Record of Assignments) –

* rifleman/scout observer with Company E, 3rd Battalion (Airmobile) 187th Infantry, from 28 March 1969 through 16 November 1969
* patient at U.S. Army Hospital, Camp Zama, Japan, from 17 November through 14 February 1970
* rifleman with Company A, 1st Battalion, 41st Infantry, 2nd Armored Division, Fort Hood, TX, from 24 March through 2 December 1970
* dropped from the rolls – desertion from 3 December 1970 through 6 January 1971
* duty soldier at the Special Processing Detachment, U.S. Army Garrison, Fort Bragg, NC, from 7 January through 24 February 1971
* rifleman with Company B, 1st Battalion, 58th Infantry, Fort Benning, GA, from 3 March through 3 November 1971

6.  The applicant accepted nonjudicial punishment (NJP) for his misconduct on
9 September 1970 and 18 May 1971.

7.  Headquarters Command, U.S. Army Garrison, Fort Bragg, NC, Special Court-Martial Order Number 42, dated 10 February 1971, shows the applicant was tried by a special court-martial.

   a.  He pled guilty and was found guilty of being AWOL from 3 November 1970 to 7 January 1971.

	b.  He was sentenced to be confined at hard labor for 2 months, forfeiture of $50.00 per month for 2 months, and to be reduced to the grade of private (E-1).

   c.  On 10 February 1971, the Special Court-Martial Convening Authority approved the sentence, except for the execution of the portion providing for confinement at hard labor for 2 months which was suspended for 2 months, at which time unless the suspension was sooner vacated, the suspended portion of the sentence would be remitted without further action.

8.  The applicant's DD Form 214 shows he was released from active duty (REFRAD) under honorable conditions on 3 November 1971, in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-3 (Secretarial Authority), based on early release of first term RA enlisted personnel, and transferred to the U.S. Army Reserve Control Group (Reinforcement).

   a.  He had completed 2 years, 11 months, and 14 days of net active service this period that included 7 months and 6 days of foreign service.  He also had
76 days of time lost.

   b.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized), as corrected by a DD Form 215 issued on 26 June 2001, shows he was awarded the –

* National Defense Service Medal
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar
* one Overseas Service Bar
* Vietnam Service Medal with three Bronze Service Stars
* RVN Campaign Medal with Device (1960)
* Presidential Unit Citation
* Valorous Unit Award
* RVN Civil Actions Honor Medal First Class Unit Citation
* RVN Gallantry Cross with Palm Unit Citation
* Bronze Star Medal
* Combat Infantryman Badge

9.  A review of the applicant's military service records failed to reveal he was diagnosed with PTSD.  This review also failed to reveal evidence that he applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations.

10.  In support of his application the applicant provides the following documents.

   a.  A newspaper article (publication and date not specified) that appears to be an "open letter" from the applicant to the "Youth of the World."  The applicant's rank is shown as private (E-2).  He offers a perspective that a Soldier chooses to keep the Nation and its citizens safe.  He encourages others in carrying out their life's mission.

   b.  Division of Career and Adult Education, Florida Department of Education Tallahassee, FL, letter, dated 19 February 2014, that informed the applicant his request for a standard high school diploma through the Florida Veterans' High School Diploma Program could not be processed because his DD From 214 shows "Under Honorable Conditions" and the Florida statute states, "The Commissioner of Education may award a standard high school diploma to an honorably discharged veteran."

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

   a.  Chapter 5 (Separation for Convenience of the Government),
paragraph  5-3, provided that the separation of enlisted personnel for the convenience of the Government was the prerogative of the Secretary of the Army and would be accomplished only by his authority.  The discharge or release of any enlisted Soldier of the Army for the convenience of the Government would be in the Secretary's discretion with issuance of an honorable or general discharge certificate, as determined by him.

   b.  Chapter 3, 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

12.  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." 

13.  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.

14.  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 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. 

15.  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 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.  

16.  In view of the foregoing, on 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards 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 under other than honorable conditions (emphasis added) 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.

17.  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?

18.  Although the DoD acknowledges 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 under other than honorable conditions 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 under other than honorable conditions.  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 applicant contends that the characterization of his service should be upgraded to fully honorable because he served in Vietnam, was reassigned to the United States to complete his service obligation, and he began to display signs of PTSD.

   a.  There is no evidence of record that shows the applicant was diagnosed with PTSD.

   b.  Records show the applicant was REFRAD on 3 November 1971 under honorable conditions.

2.  The applicant's administrative discharge under the provisions of AR 635-200, paragraph 5-3, based on early release for first term RA enlisted personnel was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  In addition, the reason for and type of separation directed were appropriate and equitable.

3.  The evidence of record shows the applicant received NJP for his misconduct on two occasions.  He then went AWOL from his unit.  When he returned to military control, he was tried at a special court-martial, convicted of the offense, and reduced to private (E-1).  Thus, his record of service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.

4.  The ABCMR does not grant requests for upgrade of discharges for the purpose of making the applicant eligible for veterans' benefits (e.g., a high school diploma).  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veterans' benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for such benefits should be addressed to the Department of Veterans Affairs or appropriate government agency.

5.  Therefore, in view of all of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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 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)                                         AR20140014012



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ABCMR Record of Proceedings (cont)                                         AR20140014012



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