IN THE CASE OF:  	  

		BOARD DATE:  5 May 2015	  

		DOCKET NUMBER:  AR20140016388 


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 that his general discharge (GD) be upgraded to a fully honorable discharge (HD) based on the Secretary of Defense memorandum issued on 3 September 2014.

2.  The applicant states that he believes the record to be in error because no consideration was given by the Board in its July 2010 decision regarding his suffering from post-traumatic stress disorder (PTSD). 

3.  The applicant provides a one-page letter explaining his application, a letter from a psychiatrist at Fort Bragg, North Carolina dated 22 September 1970, a letter from a Department of Veterans Affairs (VA) clinical psychologist, and a copy of his VA Rating Decision.

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 enlisted in the Regular Army for 3 years under the airborne enlistment option on 30 November 1966.  He completed his basic training at Fort Lewis, Washington; his advanced individual training as an infantryman at Fort Gordon, Georgia; and his airborne training at Fort Benning, Georgia before being assigned to Company A, 2nd Battalion, 501st Infantry Regiment at Fort Campbell, Kentucky. 

3.  On 13 December 1967, he was transferred to Vietnam with his unit.  He was wounded on 29 December 1967 and 10 April 1968.  He was promoted to the rank of sergeant (SGT/E5) on 29 March 1968 and served with that unit until July 1968 when he was transferred to Headquarters and Headquarters Company, 101st Airborne Division for duty as a security guard. 

4.  He departed Vietnam on 9 September 1969 for assignment to Fort Bragg, North Carolina and his records show he received four records of nonjudicial punishment under Article 15, UCMJ, for purely military offenses, including:

	a.  twice failing to go at the time prescribed to his appointed place of duty on 12 November 1969, for which he received a forfeiture of $83.00 pay per month for 1 month;

	b.  failing to go at the time prescribed to his appointed place of duty on
2 December 1969 and 15 December 1969, for which he received a reduction to SGT/E-5 (suspended for 6 months);

	c.  failing to go at the time prescribed to his appointed place of duty on 6 July 1970, for which he received a forfeiture of $50.00 pay per month for 1 month; and

	d.  failing to go at the time prescribed to his appointed place of duty on
31 July 1970 and 1 August 1970, for which he was reduced to specialist four (SP4)/E-4 and received a forfeiture of $100 pay per month for 2 months (suspended).

5.  His records also show that on 20 August 1970, a summary court-martial convicted him of failing to go at the time prescribed to his appointed place of duty.  The adjudged sentence was comprised of a reduction to private first class (PFC)/E-3 and forfeiture of $100.00 pay per month for 1 month; and on 6 January 1971, a special court-martial convicted him of being AWOL from on or about 21 September 1970 to on or about 19 November 1970.  The adjudged sentence was comprised of a reduction to private (PV1)/E-1 and confinement at hard labor for 3 months.
   
6.  The applicant was examined by a psychiatrist on 20 August 1970.  The psychiatrist stated the applicant had been in service for 3 years and he was due to ETS (expiration term of service) on 7 July 1971.  He stated the applicant admitted to a serious drug abuse problem with marijuana, amphetamines, and LSD (hallucinogenic), that he valued his drug use and he did not want to quit.  As a result his work and marriage status declined.  The applicant was described as "sullen, recalcitrant, and bitter" with an "immature personality and little impulse control or frustration tolerance."  The psychiatrist recommended the applicant's separation under the provisions of Army Regulation 635-212 for unsuitability.  On 5 January 1971, a medical doctor not trained in psychiatry attached the previous psychiatric evaluation and recommended the applicant be discharged under Army Regulation 635-212, determining the applicant met psychiatric retention standards and was able to distinguish right from wrong and adhere to the right.  He was found fit to participate in board proceedings.

7.  Following his special court-martial conviction, the applicant's commander initiated administrative separation action against him under the provisions of Army Regulation 635-212 for unfitness – based on his involvement in frequent incidents of a discreditable nature with military authorities. 

8.  The commander's recommendation for administrative discharge for unfitness under the provisions of Army Regulation 635-212 was forwarded through the applicant's chain of command to the approving authority.  The battalion and brigade commanders both recommended approval and issuance of an undesirable discharge (UD).  On 20 February 1971, the 82nd Airborne Division Commander approved the applicant's discharge for unfitness and directed issuance of a UD Certificate.

9.  On 3 March 1971, the applicant was discharged with a UD for unfitness under the provisions of Army Regulation 635-212.  His DD Form 214 shows he served 
4 years, 1 month, and 4 days of creditable service with 1 year, 8 months, and 27 days served in Vietnam.  He also had 59 days of AWOL time and 30 days of military confinement. 

10.  On 24 March 1974, the applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  On 9 July 1974, the ADRB, after considering his case, denied his request.

11.  He applied to this Board on 30 November 2009 requesting that his UD be upgraded to a fully HD and he provided a VA letter, dated 26 October 2009, which states he has been diagnosed with service-connected PTSD and is rated at 50 percent disabled as a result. 

12.  The Board concluded that the applicant suffers from PTSD which the VA relates to his experiences during the Vietnam War.  The applicant was an excellent Soldier from initial enlistment, through reenlistment, and up until he returned to the continental United States from Vietnam.  Obviously, something was occurring in his life which rendered him unsuitable for further military service and for which he should have been discharged for unsuitability under Army Regulation 635-212.  In the interest of justice and equity, his discharge should be upgraded to a GD and his narrative reason changed to unsuitability.  Accordingly, his discharge was upgraded to a GD by reason of unsuitability.

13.  Army Regulation 635-212 provided, in pertinent part, for the discharge due to unsuitability of those individuals with character and behavior disorders and disorders of intelligence as determined by medical authority.  When separation for unsuitability was warranted, an HD or GD was issued as determined by the separation authority based upon the individual’s entire record.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It provides guidance on characterization of service:

	a.  Paragraph 3-7a states that an HD 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 3-7b states that a GD 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 HD.

15.  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." 

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 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 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 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.  

19.  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.

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 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.  The applicant’s contention that his discharge should be upgraded because the Board did not consider his PTSD diagnosis at the time it considered his request for an upgrade has been noted and appears to lack merit.

2.  The Record of Proceedings for his previous case (AR20090021730) clearly shows that the Board considered his PTSD diagnosis at the time it determined that his UD should be upgraded to a GD.

3.  The evidence also clearly indicates that the applicant’s service does not rise to the level of a fully honorable discharge when considering his repeated acts of misconduct and the fact that he understood the difference between right and wrong.

4.  Accordingly, it does not appear that it would be appropriate to upgrade his general discharge to a fully honorable 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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   _X_____   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20140016388





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ABCMR Record of Proceedings (cont)                                         AR20140016388



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