IN THE CASE OF:	  

		BOARD DATE:	  24 February 2015

		DOCKET NUMBER:  AR20140016293 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, reconsideration of his earlier request for an upgrade of his under other than honorable conditions discharge.   

2.  The applicant states he served in the Army for a total of 8 years, 9 months, and 17 days, during which he completed two tours in Vietnam and he was awarded the Vietnam Service Medal with bronze service stars and the Vietnam Campaign Medal.  During his service, he stood out and he was a good Soldier.  However, during his service in Vietnam, he experienced things that were not normal which affected his mental state of mind and caused his behavior and actions to be different from those of other Soldiers.  Some 30 years later, those actions and behaviors would be categorized as post-traumatic stress disorder (PTSD).  He requested help from his chain of command at the time but they disregarded his requests.  In 2013, he was evaluated and diagnosed with a terrible case of PTSD from his experience and tours in Vietnam.  He should be entitled to treatment and financial compensation. 

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and Department of Veterans Affairs (VA) rating decision. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130013059, dated 28 January 2014. 

2.  In view of the Secretary of Defense's Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming PTSD, his request warrants consideration by the Board.

3.  The applicant's records show he was inducted into the Army of the United States on 25 September 1961 and he held military occupational specialty (MOS) 540.10 (Duty Soldier). 

4.  He was honorably discharged from active duty on 22 April 1962 for the purpose of enlistment in the Regular Army (RA).  His DD Form 214 shows he completed 6 months and 28 days of active service. 

5.  He enlisted in the RA on 23 April 1962 and subsequently served from May 1962 to July 1965.  He was advanced to specialist four (SP4)/E-4 on 8 February 1965.  He was honorably discharged on 11 May 1964 for the purpose of reenlistment.  His DD Form 214 for this period is not available for review. 

6.  He reenlisted in the RA on 12 May 1964, while in Germany.  He held MOS 76C (Engineer Supply and Parts Specialist) and he served in Vietnam from on or about 18 May 1966 to on or about 17 March 1967.  

7.  He also served in Germany from on or about 23 April 1967 to on or about 3 March 1968 as well as Vietnam from on or about 15 April 1968 to on or about 7 April 1969.  In Vietnam, he was assigned to 610th Maintenance Battalion. 

8.  Special Orders (SO) Number 112, issued by Headquarters, 610th Maintenance Battalion advanced him to specialist five/E-5 on 19 October 1968.  

9.  Following his Vietnam tour, he was reassigned to Headquarters and Range Support Battery, Range Command, Fort Bliss, TX.  He was advanced to sergeant (SGT)/E-5 with a date of rank of 19 October 1968.  

10.  On 16 July 1970, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 4 to 28 May 1970.  His punishment consisted of a reduction to private first class (PFC)/E-3.  

11.  On 4 August 1970, he accepted NJP under the provisions of Article 15 of the UCMJ for cashing a check at the Post Exchange without having sufficient funds.  His punishment consisted of a reduction to private two (PV2)/E-2. 
12.  On 6 November 1970, he was apprehended by civil authorities and confined in El Paso, TX, for possession of heroin and two counts of perjury.  He was tried and convicted for perjury and sentenced to 4 years confinement in the State Penitentiary (suspended).

13.  On 12 January 1971, his immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation       635-206 (Personnel Separations – Discharge – Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion)) for his civil conviction.  He recommended an Undesirable Discharge Certificate.

14.  On 15 January 1971, the applicant acknowledged receipt of the notification of elimination action against him. 

15.  On 27 and 29 January 1971, his chain of command rendered statements indicating the applicant’s duty performance and military appearance were substandard.  He had contributed little to the section.  He could not be trusted and he set a poor example.

16.  On 11 February 1971, he was convicted by civil court and sentenced to 8 years of jail for illegal possession of heroin and an additional 5 years for the sale of narcotic drugs. 

17.  On 16 February 1971, the applicant indicated that he was advised of the basis for the contemplated separation for civil conviction, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He waived his right to consult with counsel.  He further waived consideration of his case by a board of officers and appearance before a board of officers, and elected not to submit a statement on his own behalf.  He indicated he did not appeal his conviction and further acknowledged he understood that:

	a.  He could encounter substantial prejudice in civilian life in the event an undesirable discharge was issued to him.  

	b.  As a result of the issuance of an undesirable discharge he could be ineligible for many or all benefits as a veteran under both Federal and State laws and that he could encounter substantial prejudice in civilian life.

18.  On 16 February 1971, his immediate commander initiated separation action against him under Army Regulation 635-206 for his civil conviction.  He stated the applicant had been tried and convicted for perjury and he was given 4 years confinement in the State Penitentiary (suspended).  He was placed on 4 years of probation, but he was currently confined for passing bad checks and the sale of heroin. 

19.  On 17 February 1971, his senior commander recommended approval of the elimination action with the issuance of an Undesirable Discharge Certificate. 

20.  On 5 March 1971, the applicant’s counsel stated that when he went to the El Paso County jail to get the applicant’s waiver, he was told the applicant had been transferred to U.S. Marshals Office for further transfer to Fort Leavenworth, KS.  As a result, he was unable to obtain the required waiver. 

21.  On 7 April 1971, the immediate commander resubmitted the discharge action against the applicant.  He stated that the applicant was initially notified of the separation action on 12 January 1971.  He was given 30 days to appeal the separation action.  During this time, he was convicted by civil court for heroin possession, writing fraudulent checks and sentenced to a lengthy jail sentence.  On 16 February 1971, his separation was forwarded through legal channels to the applicant for signature.  He returned the enclosure on or about 25 March 1971.  

22.  On 19 April 1971, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-206 for willful misconduct by reason of civil conviction and directed he be furnished an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade.  The applicant was accordingly discharged on 28 April 1971. 

23.  The DD Form 214 he was issued at the time confirms he was discharged under the provisions of Army Regulation 635-206 with an under other than honorable conditions characterization of service.  He was issued an Undesirable Discharge Certificate.  He completed 1 year, 5 months, and 15 days during this period and he had 7 years, 4 months and 2 days of prior active service with 287 days of lost time. 

24.  On 21 March 1978, the Army Discharge Review Board (ADRB) reviewed his discharge and determined it was proper and equitable.  Accordingly, the ADRB denied his request for an upgrade of his discharge.

25.  On 28 January 2014, the ABCMR also reviewed his discharge and determined it was proper and equitable.  Accordingly, the Board denied his request for an upgrade of his discharge.

26.  He provides a VA rating decision, dated 10 June 2013, that shows he was awarded service-connection for PTSD because the evidence determined that this condition was caused by his military service in Vietnam.  The VA determined that because the evidentiary standards for establishing the occurrence of in-service stressors had been relaxed, the VA relied on the applicant’s testimony alone to establish the occurrence of stressors.  

26.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct.  Paragraph 24 of this regulation provided, in pertinent part, that members who had been convicted by domestic and foreign courts of offenses which do not involve moral turpitude or which do not provide punishment by confinement in excess of 1 year under the cited Codes, and those adjudged juvenile offenders for offenses not involving moral turpitude, will, as a general rule, be retained in service.  If the offense is indicative of an established pattern of frequent difficulty with the civil authorities, his military record is not exemplary, and retention neither practicable nor feasible, a recommendation for separation may be submitted through the major command headquarters to the Adjutant General.  Furthermore, Army Regulation 635-206, paragraph 33 provided, in pertinent part, that members convicted by civil authorities would be considered for separation.  An undesirable discharge was normally considered appropriate.

27.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) provides the policies and procedures 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.  

28.  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." 

29.  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.

30.  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. 

31.  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.  

32.  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.

33.  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?

34.  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 evidence of record shows the applicant was convicted by a civilian court, initially for perjury, and later for worthless checks and sale and possession of heroin.  He was sentenced to confinement.  Accordingly, his chain of command initiated separation action against him and he was accordingly notified.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  His discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

2.  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.

3.  The applicant's service in Vietnam is noted.  However, his misconduct is serious and the reason for his separation (misconduct – perjury, illegal possession of heroin, and sale of narcotic drugs) was clearly premeditated and was not related to any medical conditions (stress and/or depression) he may have been diagnosed with or related to his service in Vietnam.  Even if he has been recently awarded service-connection for PTSD by the VA, the nature of the applicant's misconduct (perjury, possession, and sale) has no relation to the PTSD or any stressors he claims.

4.  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 serious misconduct does not entitle him to an upgrade of his discharge. 

5.  The applicant’s discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Based on his record of indiscipline, his service clearly does not merit an upgrade of his discharge.  Therefore, he is not entitled to an honorable or a general discharge under the Secretary of Defense's new guidance. 




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 to amend the decision of the ABCMR set forth in Docket Number AR20130013059, dated 28 January 2014.



      _______ _   _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)                                         AR20140016293



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ABCMR Record of Proceedings (cont)                                         AR20140016293



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