IN THE CASE OF:	  

		BOARD DATE:	  24 February 2015

		DOCKET NUMBER:  AR20140015364 


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 under other than honorable conditions discharge to a fully honorable discharge. 

2.  The applicant states his under other than honorable conditions discharge was unjust as he, in effect, suffered from post-traumatic stress disorder (PTSD).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's under other than honorable conditions discharge be upgraded to fully honorable.  

2.  Counsel states the applicant, as a combat veteran who served in Vietnam, was unjustly discharged.  His disciplinary infractions did not involve drug use, alcohol use, or violence.  Counsel argues that:  

* the discharge was unjust because his disciplinary actions were the result of his undiagnosed and untreated PTSD as well as his youth and immaturity
* the applicant's under other than honorable conditions discharge was unjust considering his otherwise laudable combat service
* it has been over 40 years since his discharge and he has been a positive contributing member of the society 

3.  Counsel provides:

* DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for periods ending on 29 October 1971 and 24 July 1970
* Self-authored statement, dated 6 April 2012
* DA Forms 2823 (Witness Statement), dated 28 and 20 September 1971
* Chronological Record of Medical Care, dated 10 October 1971
* DA Form 20 (Enlisted Qualification Record)
* Article about racial issues in Germany
* Article from the American Psychological Association
* VA Form 21-4138 (Statement in Support of Claim)
* Internet Article from the Washington Times, title: Military Misconduct May be Sign of PTSD
* Internet article title: The Unmaking of the President
* Internet article in relation to combat-related PTSD
* Department of Veterans Affairs (VA) medical statement, dated 22 April 2013
* Character reference letter

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born in September 1950 and enlisted in the Regular Army at 19 years of age on 20 October 1969.  He was trained in and held military occupational specialty 76Y (Unit Supply Specialist).  He served in Germany from 3 April to 24 August 1970. 

2.  He was honorably discharged on 24 July 1970 for the purpose of immediate reenlistment.  His DD Form 214 shows he completed 9 months and 5 days of active service.  He was awarded or authorized the National Defense Service Medal and Sharpshooter Marksmanship Qualification Badge with Rifle Bar. 

3.  He reenlisted in the Regular Army, at nearly 20 years of age, on 25 July 1970, in Germany.  He then proceeded to the Overseas Replacement Detachment, Fort Lewis, WA. 

4.  On 4 October 1970, he departed his unit in an absent without leave (AWOL) status and on 4 November 1970, he was dropped from the Army rolls as a deserter.  He ultimately returned to military control on 12 January 1971. 

5.  While at Fort Lewis, WA, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on/for:

* 25 January 1971, failing to go at the time prescribed to his appointed place of duty
* 3 February 1971, refusing a lawful order form a superior noncommissioned officer  

6.  On 5 February 1971, he was convicted by a special court-martial of one specification of being AWOL from 4 October 1970 to 12 January 1971.  The court sentenced him to confinement at hard labor for 30 days, a forfeiture of pay, and reduction to private (PVT)/E-1. The convening authority approved and suspended his sentence for 90 days. 

7.  He served in Vietnam from 10 February 1971 to 9 February 1972.  He was assigned to the 27th Engineer Battalion.  While there, Special Orders Number 117, issued by Headquarters, 27th Engineer Battalion, on 2 June 1971 promoted him to specialist four (SP4)/E-4. 

8.  While in Vietnam, he accepted NJP under the provisions of Article 15 of the UCMJ on/for:

* 28 April 1971, willfully disobeying a lawful order to report for a recon patrol
* 29 July 1971, failing to go at the time prescribe to his appointed place of duty; his punishment consisted of a reduction to private first class (PFC)/E-3 (suspended until 29 August 1971)

9.  The complete facts and circumstances, including his separation packet, are not available for review with this case.  However, his records contain a duly-constituted DD Form 214 that shows he was discharged on 29 October 1971 under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability), by reason of unfitness with a character of service of under other than honorable conditions.  He was assigned Separation Program Number 386 (established pattern of shirking).  He completed 11 months and 26 days of active service during this period and he had 99 days of lost time.

10.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 

11.  He provides, in pertinent part: 

	a.  Multiple internet articles talking about PTSD, Vietnam veterans, and racial injustices at the time of his service. 

	b.  Letter of support, dated 22 April 2013, from a VA Social Worker in Los Angeles, CA, who states he has witnessed the applicant address critical issues in his life including those pertaining to recovery, housing, health, and family.  The applicant has a history of chronic homelessness and addiction.  Through help, he has been able to secure housing and become a father to his child.  He has grown significantly and he has a positive attitude.

   c.  Self-authored statement, dated 6 April 2012, describing his background and upbringing, military service in Germany and Vietnam, and the difficulties he encountered during his military service. 

	d.  Sworn statements, dated September 1971, in relation to being threatened in Vietnam, experiencing racial issues, and having mental duress. 

	e.  Chronological Record of Medical care, dated 10 October 1971, showing he was unable to sleep and had an anxiety disorder for which he was prescribed Librium. 

12.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts.  This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

13.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic policy for the separation of enlisted personnel.  

	a.  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.

	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.  

14.  Post-traumatic stress disorder 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." 

15.  Post-traumatic stress disorder 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.

16.  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. 

17.  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 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.  

18.  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.
19.  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?

20.  Although 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 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 applicant’s record is void of the facts and circumstances that led to his discharge.  However, his record contains a duly-constituted DD Form 214 that confirms he was discharged on 29 October 1971 in accordance with Army Regulation 635-212 by reason of unfitness (established pattern of shirking) with a UOTHC character of service.

2.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He has provided no information that would indicate the contrary.

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.  The applicant's service in Vietnam is noted.  However, his misconduct began before he arrived in Vietnam.  From the date of his enlistment in October 1969 to the date prior to his arrival in Vietnam in February 1971, he had/was:

* accepted NJP under the provisions of Article 15 in January 1971 for failing to go at the time prescribed to his appointed place of duty
* accepted NJP under the provisions of Article 15 in February 1971 for disobeying a lawful order
* departed his unit in an AWOL status and had been dropped from the Army rolls as a deserter
* convicted by a special court-martial of one specification of AWOL from 4 October 1970 to 12 January 1971

5.  He then served in Vietnam, and while there he accepted NJP, in a combat environment, in/for 

* April 1971, willfully disobeying a lawful order to report for a recon patrol
* July 1971, failing to go at the time prescribe to his appointed place of duty

6.  Nothing in his records supports a claim that his extensive history of misconduct was caused by his service in Vietnam.  Although it is reasonable to believe he was subjected to the ordeals of war while serving in Vietnam, his misconduct began before his arrival in Vietnam.  Additionally, contrary to counsel’s assertion that the applicant’s service was laudable, the NJP, court-martial conviction, and AWOL tell a different story.  Furthermore, the applicant was 19 years of age when he enlisted and nearly 20 years of age when he reenlisted.  However, there is no indication he was any less mature than other Soldiers of the same age who successfully completed their term of service. 

7.  Nevertheless, 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.

8.  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.  Medical evidence shows he was diagnosed with and treated for a PTSD-related condition by a competent mental health professional.  Therefore, it is reasonable to believe the applicant's PTSD-related conditions existed at the time of discharge. 

9.  It is concluded that PTSD or a PTSD-related condition was a causative factor in the misconduct that led to his discharge.  After carefully weighing that fact against the severity of his misconduct, there is sufficient mitigating evidence to warrant upgrading the characterization of his service to a general discharge under honorable conditions and restoring his rank/grade to PFC/E-3 (the last rank/grade he held at the time of his separation) with an effective date of 29 October 1971.

10.  He is not entitled to an honorable discharge because an honorable discharge is a separation with honor and entitles and 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 meritorious. Based on his extensive history of AWOL, NJP, and court-martial conviction, 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 an honorable discharge.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR20050002730, on 8 November 2005.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by re-issuing the applicant's DD Form 214 for the period ending 29 October 1971 to show the characterization of service as "General, Under Honorable Conditions" and his rank/grade as PFC/E-3 with an effective date of 29 October 1971.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to how the characterization of service as "Honorable."



      _______ _   _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)                                         AR20140015364



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ABCMR Record of Proceedings (cont)                                         AR20140015364



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