IN THE CASE OF:	  

		BOARD DATE:	 5 May 2015

		DOCKET NUMBER:  AR20140014303 


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 an upgrade of his discharge under other than honorable conditions (UOTHC) to general under honorable conditions.

2.  The applicant states:

* he was suffering from shell shock (currently known as combat stress reaction), battle fatigue, mental instability, alcohol and substance abuse, as well as discrimination at the time of his discharge
* he has undergone medical care from private doctors, to include hospitalization due to illnesses and mental issues stemming from his Army service in 1969 which prevented him from challenging the type of discharge he received in 1974 until now
* he received his Vietnam Combat Certificate in the Republic of Vietnam with the 1st Team Academy, 1st Cavalry Division (Airmobile), for the period 8 October 1969 to 4 November 1969
* he was a model Soldier during his first 2 years of military service from 1969 through 1971
* he was awarded the National Defense Service Medal, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, Vietnam Service Medal with one bronze service star, and Expert Marksmanship Qualification Badge (M-60)
* after honorably completing his initial 2 years of service, he reenlisted for another 4 years of service in March 1971
* his eventual discharge UOTHC was the result of being absent without leave (AWOL), which was due to extenuating circumstances that the Army grossly and purposely overlooked at the time
* his longest period of AWOL was when God spoke to him and told him to get away from the people who were trying to harm him
* he was not given any medical attention or examination by mental health professionals to determine whether he was capable of making sound decisions
* he was also under extreme duress from his superior officers simply because of his dark skin color and was regularly called "n____r"
* he only experienced isolated incidents of racism during the 2 years of his initial enlistment but these incidents were more prevalent during the years of his reenlistment where he feared for his life, suffered severe alcohol and drug problems, was depressed, heard voices, had suicidal thoughts, and was shell shocked and battle fatigued
* his drug and alcohol problems began in advanced individual training, but they did not hinder his service until later when his drug and alcohol intake significantly increased and no one wanted to diagnose his condition
* what he encountered during his short duration in Vietnam, seeing the carnage of dead bodies, explosions blowing body parts everywhere, and breathing in the fumes of Agent Orange led to his self-destructive behavior
* near the end of his first 2 years of Army service he was shipped to Japan for serious medical reasons and later shipped to Fort Hood, TX, where his mental depression and abuse of drugs and alcohol increased
* one of his superior officers was willful and persistent in making homosexual overtures to him and he was too young and afraid to say anything
* he was AWOL several times to get away from the depression, nightmares, and oppression from his superiors who were white and discriminated against him
* suffering from undiagnosed mental depression and certain that he could not get a fair trial in a white man's Army, he accepted what was offered to him in order to be released from the Army
* he was told he would face retribution and a dishonorable discharge if he spoke against his superior officers
* a discharge UOTHC renders a veteran ineligible for most Department of Veterans Affairs (VA) benefits
* he served an honorable tour in Vietnam, after which he suffered psychological trauma and only engaged in minor misconduct which did not warrant a discharge under other than honorable conditions



3.  The applicant provides:

* VA Form 10-10EZ (Application for Health Benefits)
* 1st Cavalry Division Vietnam Combat Certificate
* DD Form 214 (Report of Separation from Active Duty)
* DD Form 258A (Undesirable Discharge Certificate)

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 was inducted into the Army of the United States on 8 April 1969 and served in military occupational specialty 11E (armor crewman) in Vietnam from on or about 15 October 1969 through 4 November 1969.

3.  Item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) reflects his status as a patient under the U.S. Army Pacific Far East Command from 5 November 1969 through 26 November 1969, after which he was en route to Fort Hood, TX, for reassignment.  There are no documents in his record, medical or otherwise, addressing the reason for his status as a patient, his treatment, or his diagnosis.

4.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 10 June 1970 for assaulting a noncommissioned officer on 9 June 1970.

5.  His initial term of service ended on 18 March 1971 and he enlisted in the Regular Army on 19 March 1971.

6.  He accepted further NJP under the provisions of Article 15, UCMJ, on the following occasions:

* on 10 May 1971, for absenting himself from his unit without authority from 5 May 1971 until on or about 7 May 1971
* on 1 June 1971, for absenting himself from his place of duty from 30 May 1971 until on or about 1 June 1971
* on 31 July 1971, for failing to go at the prescribed time to his appointed place of duty on 31 July 1971
* on 2 June 1972, for failing to go at the prescribed time to his appointed place of duty on 31 May 1972
* on 6 September 1972, for failing to go at the prescribed time to his appointed place of duty on 3 September 1972

7.  His records show charges and their specifications were preferred against him on 7 February 1974 for absenting himself from his place of duty without authority from 9 February 1973 through 12 February 1973, from 6 March 1973 through 29 March 1973, and from 1 April 1973 through 6 February 1974.  On 7 February 1974, he was referred to trial by a special court-martial for the listed charges.

8.  He consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge UOTHC, and the procedures and rights available to him.  Subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial on 12 February 1974.

9.  In his request, he indicated he understood that by requesting discharge he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He stated he did not desire further rehabilitation under any circumstances as he had no desire to perform further military service.  He elected not to submit statements in his own behalf.

10.  In the endorsement from his battalion commander, dated 21 February 1974, he states it is apparent that the applicant did not meet the minimum standards of the U.S. Army and had no desire to do so.  The extreme length of his AWOL and the fact that he was apprehended and did not surrender indicates a total lack of the qualities necessary in a Soldier and a total lack of ability to be rehabilitated to meet these standards.  He did not believe the applicant would ever be an asset to the U.S. Army.

11.  A mental status evaluation conducted on 5 March 1974 showed the applicant was mentally responsible, had the mental capacity to understand and participate in the proceedings, and met the retention standards prescribed by Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

12.  His DD Form 214 shows he was discharged on 13 March 1974 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.  His service was characterized as UOTHC and he had 339 days of lost time in that 2-year period of active service.

13.  There is no record of evidence and the applicant has not provided any corroborating his contention that he previously or currently suffers from or was treated for mental illness, battle fatigue, shell shock, alcoholism or drug abuse, post-traumatic stress disorder (PTSD), or any similar condition.  There is also no record of evidence the applicant was racially discriminated against.

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

	a.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge UOTHC is normally                               considered appropriate.

	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.

15.  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."

16.  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.

17.  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.

18.  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.

19.  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.

20.  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?

21.  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 request for an upgrade of his discharge to general under honorable conditions was carefully considered; however, the evidence is insufficient to support his request.

2.  His records show he accepted NJP six times during his 4 years of service and charges were preferred against him for three further counts of AWOL, amounting to 339 days of lost time in the final 2-year period of his service.

3.  He voluntarily requested discharge under the provisions of Army Regulation
635-200, chapter 10, to avoid a trial by court-martial that may have resulted in a felony conviction.

4.  There is no evidence of record and the applicant has not provided any showing a diagnosis of or treatment for battle fatigue, shell shock, depression, mental illness, drug and alcohol abuse, PTSD, or any similar condition which he might have suffered from at the time of his discharge and might have been a contributing factor in his misconduct.

5.  The mental health evaluation conducted immediately prior to his discharge shows he was mentally responsible, had the mental capacity to understand and participate in the proceedings, and met the retention standards prescribed by regulatory guidance.

6.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

7.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an upgraded 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 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)                                         AR20140014303



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ABCMR Record of Proceedings (cont)                                         AR20140014303



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