IN THE CASE OF:	  

		BOARD DATE:	  28 July 2015

		DOCKET NUMBER:  AR20140016204 


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 the upgrade of his other than honorable conditions discharge.

2.  The applicant states, in effect: 

	a.  He feels his service should be considered honorable.  He contends, exclusive of his prolonged period of being absent without leave (AWOL), his service should be viewed as honest, faithful, and meritorious for the following reasons:

* he was inducted into the Army on 29 April 1970 and, after completing basic combat training, received an accelerated promotion to 
private/E-2
* he went on to complete the Administration and Personnel Management course and received “excellent” conduct and efficiency ratings
* until his return from Vietnam, he had served 18 of his 24-month term of service in an honest, faithful, and meritorious manner
* he did not have a single violation of the Uniform Code of Military Justice (UCMJ) and his records show no misconduct or derogatory information
* on the contrary, he had received multiple awards and certificates, and had been quickly promoted to specialist four (SP4)/E-4
* after leaving Vietnam, he was unable to adjust to life in the U.S.
* his mental condition, level of maturity, and a lack of behavioral health treatment led him to the decision to go AWOL
* at the time, he thought, if he remained AWOL until the expiration of his term of service (ETS) he could avoid being sent back to Vietnam
* he was trying to escape the anxiety and feelings of hopelessness
* somehow, he believed the dreams and flashbacks would go away if he just slipped away from society
* he finally turned himself in to end the nightmare of constantly wondering if he would be apprehended

	b.  The reason he went AWOL:

* he arrived in Vietnam on 16 September 1970
* while stationed there, he witnessed many of the horrors of war
* by the time his tour ended, he was having behavioral health problems as a result of the events he witnessed and in which he had participated
* when he returned to the United States in September 1971, he was given 30 days leave with instructions to report to Fort Benning, GA
* he found he was unable to adapt to the sights and sounds of everyday life, and quickly became fearful, angry, and withdrawn
* he began to experience nightmares and often had flashbacks of the events he experienced in Vietnam
* as the day of his departure for Fort Benning approached, he felt growing confusion and anxiety at the prospect of possibly returning to Vietnam
* because of feelings of being lost, alone, helpless, and confused, he decided to go AWOL believing he could thus avoid more trauma

	c.  He contends the post-traumatic stress disorder (PTSD) from which he has been suffering was incurred in the line of duty.

* he believes the PTSD, from which he suffers caused him to go AWOL
* he requests the Board consider the compelling circumstances of his case and his level of service prior to going AWOL

3.  The applicant provides:

* an online article from militarytimes.com, dated 3 September 2014, titled Department of Defense (DoD) willing to reconsider discharges of Vietnam Veterans with PTSD
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* DD Form 47 (Record of Induction)
* three letters of support
* DA Form 20 (Enlisted Qualification Record)
* DA Form 87 (Department of the Army Certificate of Training)
* Certificate of Accelerated Advancement to Private E2
* letter from a Physician's Assistant-Certified (PA-C), Mxxxxxx Hxxx Urgent Care, dated 1 December 2010, addressed to the Department of Veterans Affairs (VA)

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 29 April 1970.  After completing initial training, he was awarded military occupational specialty (MOS) 71B (Clerk-Typist).  The highest rank/grade held was SP4/E-4.  

3.  He served in Vietnam from 16 September 1970 to 15 September 1971.  

	a.  He initially served as a General Clerk in Headquarters and Headquarters Company, 4th Transportation Company from on or about 27 September 1970 to on or about 17 December 1970.  

	b.  He was then reassigned to 551st Transportation Company, and served there from on or about 18 December 1970 to 29 June 1971, performing duties in MOS 11B as a Security Guard.  

	c.  His last unit of assignment in Vietnam, from on or about 30 June 1971 until his departure in September 1971, was Company E, 20th Infantry, serving in MOS 11B, with duty as a Security Guard.

3.  Records show, on his return to the United States on or about 16 September 1971, he never reported to his new duty station.  There is also an indication his unit ever reported him as AWOL.

4.  He turned himself in and was returned to military control on 14 March 1973.  He was reassigned to the U.S. Army Personnel Control Facility at Fort Leonard Wood, MO. 

5.  On 22 March 1973, his commander preferred court-martial charges for one specification of AWOL for the period 20 October 1971 to 14 March 1973.  

6.  On 26 March 1973, the applicant consulted with counsel and, subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial, under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  

7.  In his request for discharge, he indicated he:

* had not been subjected to any coercion
* understood if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA
* understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* elected not to submit a statement in his own behalf

8.  On 7 April 1973, the separation authority approved his request for discharge in lieu of court-martial with the issuance of an Undesirable Discharge Certificate.  He was also reduced to the lowest enlisted rank.  On 13 April 1973, he was discharged accordingly.

9.  His DD Form 214 shows he was discharged under other than honorable conditions in accordance with the provisions of Army Regulation 635-200, chapter 10.  This form shows he completed 1 year, 6 months, and 21 days of net active creditable service and had a total of 511 days of lost time.  

10.  The applicant provides:

	a.  An online article from militarytimes.com which describes DoD's efforts to reevaluate the cases of Vietnam-era Veterans with PTSD who received bad discharges.






	b.  Three letters of support, one of a childhood friend (and brother-in-law) and 
two from brothers of the applicant, which essentially state:

* before his assignment in Vietnam, and when still in high school, he was a member of the football team, always dressed well, and was viewed as a hard-working and patriotic young man
* after his return, he behaved markedly different
* he had trouble sleeping, drank heavily, was moody, and became a loner
* he seemed lost and had an aggressive manner
* on one occasion, one of his brothers tried to wake him up and, after just touching his shoulder, the applicant sprang up and grabbed him by the throat
* on another occasion, the applicant required a tooth to be pulled
* he was given anesthesia, which was to "put him out," and was restrained
* after having his tooth pulled, he broke free from the restraints, assaulted the dental nurse and the dentist, and left the dentist's office
* the police were called and, after the use of mace and a considerable struggle, he was arrested
* he was treated at a hospital for the injuries sustained
* following his release from the Personnel Control Facility, the applicant went to Washington State, lived in a lean-to, and picked up odd jobs for food

	c.  A letter from a PA-C, addressed to VA, which states in effect:

* he has been the provider for the applicant for the past few weeks
* the applicant has acute situational depression with anger and increased PTSD
* he has had a lot of flashbacks and suffers from acute psychosis
* he has been the medication Zyprexa (an antipsychotic medicine used for the treatment of schizophrenia and bipolar disorder)
* he is also receiving Ativan (a drug used to treat anxiety disorders)
* he has finally been sleeping at night
* the writer recommends the VA provide acute intervention therapies as soon as possible




11.  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 at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

   b.  Paragraph 3-7a provides an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance.  
   
   c.  Paragraph 3-7b states 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.

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) 

		(1)  Direct exposure. 

		(2)  Witnessing, in person.

		(3)  Indirectly, by learning that a close relative or close friend was exposed to trauma.  If the event involved actual or threatened death, it must have been violent or accidental.

		(4)  Repeated or extreme indirect exposure to aversive details of the event(s), usually in the course of professional duties (e.g., first responders, collecting body parts; professionals repeatedly exposed to details of child abuse). This does not include indirect non-professional exposure through electronic media, television, movies, or pictures.

	b.  Criterion B, intrusion symptoms:  The traumatic event is persistently re-experienced in the following way(s): (one required) 

		(1)  Recurrent, involuntary, and intrusive memories. 

		(2)  Traumatic nightmares. 

		(3)  Dissociative reactions (e.g., flashbacks) which may occur on a continuum from brief episodes to complete loss of consciousness. 

		(4)  Intense or prolonged distress after exposure to traumatic reminders. 	

		(5)  Marked physiologic reactivity after exposure to trauma-related stimuli. 

	c.  Criterion C, avoidance:  Persistent effortful avoidance of distressing trauma-related stimuli after the event: (one required)

		(1)  Trauma-related thoughts or feelings.

		(2)  Trauma-related external reminders (e.g., people, places, conversations, activities, objects, or situations).

	d.  Criterion D, negative alterations in cognitions and mood:  Negative alterations in cognitions and mood that began or worsened after the traumatic event: (two required)

		(1)  Inability to recall key features of the traumatic event (usually dissociative amnesia; not due to head injury, alcohol, or drugs).

		(2)  Persistent (and often distorted) negative beliefs and expectations about oneself or the world (e.g., "I am bad," "The world is completely dangerous").

		(3)  Persistent distorted blame of self or others for causing the traumatic event or for resulting consequences.

		(4)  Persistent negative trauma-related emotions (e.g., fear, horror, anger, guilt, or shame).

		(5)  Markedly diminished interest in (pre-traumatic) significant activities.
Feeling alienated from others (e.g., detachment or estrangement).

		(6)  Constricted affect: persistent inability to experience positive emotions. 

	e.  Criterion E, alterations in arousal and reactivity:  Trauma-related alterations in arousal and reactivity that began or worsened after the traumatic event: (two required)

		(1)  Irritable or aggressive behavior

		(2)  Self-destructive or reckless behavior

		(3)  Hypervigilance
		(4)  Exaggerated startle response

		(5)  Problems in concentration

		(6)  Sleep disturbance

	f.  Criterion F, duration:  Persistence of symptoms (in Criteria B, C, D, and E) for more than one month. 

	g.  Criterion G, functional significance:  Significant symptom-related distress or functional impairment (e.g., social, occupational).

	h.  Criterion H, exclusion:  Disturbance is not due to medication, substance

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 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.  

16.  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 (emphasis added).

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 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 causeal relationship of symptoms to the misconduct.




DISCUSSION AND CONCLUSIONS:

1.  In his request for the upgrade of his under other than honorable conditions discharge, the applicant states he believes he is suffering from PTSD, which contributed to the misconduct leading to his discharge.  There is, however, insufficient evidence to support a request for an upgrade at this time.

2.  The applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's record confirms he served in Vietnam.  Although he was school-trained as a clerk, his record shows he spent most of his tour performing duties as a Security Guard, duty MOS 11B.  

4.  On his return to the United States and while on leave, he decided to go AWOL and, after being absent over 500 days, only returned to military control so as to no longer have to worry about being apprehended.  The applicant's AWOL is consistent with avoidance, one of the symptoms of PTSD.  The presence of PTSD is often viewed as a causative factor in the misconduct leading to discharge.  

5.  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 recharacterization of their overall service.

6.  The available record does not contain evidence of a diagnosis made by a behavioral health provider credentialed to be able to affirm a diagnosis of PTSD.  The applicant provides, however, such a diagnosis from a civilian PA-C.  According to the Headquarters, Department of the Army Office of the Surgeon General, a diagnosis made by a PA-C is considered valid for use by the Board when making a case determination.

7.  Based upon the foregoing, there is sufficient basis upon which to grant the requested relief.  



BOARD VOTE:

___x____  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant's DD Form 214 for the period ending 13 April 1973 to show the characterization of service as "General, Under Honorable Conditions" and his rank/grade as specialist four/E-4 with an effective date of 14 January 1971.




      __________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)                                         AR20140016204





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ABCMR Record of Proceedings (cont)                                         AR20140016204



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