IN THE CASE OF:	  

		BOARD DATE:	  19 May 2015

		DOCKET NUMBER:  AR20140016640 


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 "discharge status changed to dishonorable discharge to retirement discharge."

2.  The applicant states "I had 3 DD 214 statements and they were all different.  I was only supposed to have one DD 214, to state an other honorable discharge conditions."

3.  The applicant provides a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 on 29 March 1966.  After completing initial training, he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  The highest rank/grade held was specialist five/E-5.

3.  On 5 December 1966, in accordance with his pleas, the applicant was convicted by a summary court-martial for quitting his sentinel post without being properly relieved and talking when it was not in the line of duty while posted as a sentinel.  He was sentenced to be reduced to E-2, to be confined at hard labor without confinement for 30 days, and to forfeit $25.  On 5 December 1966, the convening authority approved the sentence. 

4.  The applicant served in MOS 11B and MOS 76W (Petroleum Storage Specialist) in Vietnam from 13 December 1966 through 12 December 1967.

5.  On 16 November 1968, the applicant was arrested by civil authorities and placed in jail pending trial for assault and attempted rape.  In May 1969, he was convicted by civilian authorities of attempted rape and was sentenced to serve 
6 years in prison.

6.  On 9 October 1969, the applicant was notified of his pending separation under the provisions of Army Regulation 635-206 (Personnel Separations - Discharge, Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence without Leave or Desertion) for his conviction by civil court.  He waived consideration of his case by a board of officers, he waived representation by counsel, and he elected not to submit a statement in his own behalf.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life in the event an undesirable discharge were issued, that he might be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life.  

7.  On 31 December 1969, the separation authority approved the recommendation for separation and directed an undesirable discharge.  On 
15 January 1970, he was discharged accordingly.

8.  His DD Form 214 shows:

	a.  He completed 2 years, 7 months, and 10 days of total active service, with 427 days of lost time due to civil confinement.

	b.  The reason and authority is shown as Section VI (Conviction by Civil Court), Army Regulation 635-206.  The character of service is under other than honorable conditions.
	c.  He was awarded or authorized:

* Purple Heart (2nd Award)
* National Defense Service Medal
* Vietnam Service Medal
* Republic of Vietnam Campaign Medal with Device (1960)
* Combat Infantryman Badge
* Expert Marksmanship Qualification Badge with Rifle Bar (M-14)
* Expert Marksmanship Qualification Badge with Rifle Bar (M-16)

9.  Although there is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations, he did apply to the ABCMR on 11 April 2008.

	a.  In his request he submitted evidence he suffered from post-traumatic stress disorder (PTSD) and provided a letter from a clinical psychologist which affirmed the diagnosis.

	b.  On 24 July 2008, the Board denied his request.

10.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, prescribes policies and procedures for enlisted separations.  Chapter 12 (Retirement for Length of Service) addresses retirements for enlisted Soldier who have reached a minimum of 20 years of active military service.

11.  Army Regulation 635-40 (Personnel Separations - Physical Evaluation for Retention, Retirement, or Separation) prescribes policies and procedures for the disability evaluation of Soldiers.  It addresses medical retirements due to disabilities which render the Soldier unfit for continued military service.

	a.  Soldiers are placed on the Temporary Disability Retired List (TDRL) when their disability rating is 30 percent or higher and their medical conditions are unstable for rating purposes.  By law, tenure on the TDRL is limited to five years and if, at the fifth anniversary on TDRL the unstable conditions have not been made permanent then all compensation and retirement benefits are terminated.

	b.  Soldiers are placed on the Permanent Retired List when their disability rating is 30 percent or higher and their medical conditions are stable for rating purposes

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 a historical perspective, the significant change ushered in by the PTSD concept was the stipulation that the etiological agent was outside the individual (i.e., a traumatic event) rather than an inherent individual weakness (i.e., a traumatic neurosis).  The key to understanding the scientific basis and clinical expression of PTSD is the concept of "trauma."

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 under other than honorable conditions 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.

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 (emphasis added)?

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 under other than honorable conditions 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 under other than honorable conditions.  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 (emphasis added).  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.  As to the applicant's request for his discharge to be changed to retirement:

	a.  He states he received a dishonorable discharge.  An examination of his DD Form 214, however, reveals he actually was given a discharge under other than honorable conditions.

	b.  He provides no evidence to support his contention or explain on what basis he should receive a military retirement.

	c.  For Regular Army enlisted Soldiers, a military retirement can occur either after having served a minimum of 20-years of active Federal military service, or as a result of a disability which renders the Soldier unfit for continued military service.  He neither completed a minimum of 20 years nor was found to have had a disability which qualified him for a medical retirement.

2.  In his earlier request to the Board, he provided evidence suggesting the misconduct which led to his discharge was caused by PTSD and provided a letter from a clinical psychologist affirming his PTSD diagnosis.  While not a basis for entitling the applicant for a medical retirement, new guidance permits the review of cases such as the applicant's to determine if his under other than honorable discharge should be upgraded to a general discharge under honorable conditions.

3.  On 3 September 2014, the Secretary of Defense directed the Board to carefully consider revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged under other than honorable conditions, and who had 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 their service.

	a.  Although the DOD acknowledged 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.

	b.  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 under other than honorable conditions characterization of service.

	c.  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 under other than honorable conditions.  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 (emphasis added).

4.  The applicant was discharged as a result of a conviction by a civil court for attempted rape.  While behaviors such as irritability, aggressiveness, being self-destructive, or exhibiting recklessness can reasonably be associated with PTSD, serious misconduct, such as attempted rape, is not.  As such, in evaluating whether PTSD should be considered as mitigation for the crime for which he was convicted, it would not be appropriate find PTSD accounted for the applicant's actions.  

5.  Based upon the foregoing, there is insufficient evidence to support either upgrading his discharge to general under honorable conditions or directing his discharge be changed to a military retirement.
6.  As to the applicant's assertion there were three different versions of his 
DD Form 214, each stating different information, his OMPF only contained one.  The copy found matched the copy he submitted.  No correction for this issue is therefore required.

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)                                         AR20140016640





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ABCMR Record of Proceedings (cont)                                         AR20140016640



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