IN THE CASE OF:	  

		BOARD DATE:	 12 February 2015 

		DOCKET NUMBER:  AR20140017034 


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 reconsideration of his earlier request for an upgrade of his under other than honorable conditions discharge to a fully honorable discharge. 

2.  The applicant states he was under stress and he could not cope with the situation he was in.  He was a door gunner in Vietnam and he was wounded.  When he was sent back home, he was in a daze.  He felt scared and everyone was staring at him as if he did something wrong.  He missed his initial day to report because he was sure if he reported, they would send him back to Vietnam. That is when he fled.  But, about 5 months later, he decided to turn himself in.  He tried to do so on six occasions but he was always told to come back.  Finally, at Fort Ord, CA, he turned himself in and he was ultimately discharged.  He was young, scared, and he felt going absent without leave (AWOL) was the only way to ensure he would not return to Vietnam.  

3.  The applicant provides: 

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 
* DA Form 8-275-3 (Clinical Record Cover Sheet)
* Western Mental Health Center psychologist statement, dated 4 February 2005
* A book titled “Rattlers Firebirds”
* Photographs 
* Department of Veterans Affairs (VA) Initial Evaluation for Post-Traumatic Stress Disorder (PTSD)
* VA rating decision, dated 24 March 2005

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 AR20050002730, dated 8 November 2005. 

2.  The applicant does not meet the criteria for a request for reconsideration because his request was not received within 1 year of the Board's original decision.  However, 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, as an exception to policy.

3.  The applicant's records show he enlisted in the Regular Army on 6 May 1968 and he held military occupational specialty 76N (Petroleum Storage Specialist).  He was advanced to specialist four (SP4)/E-4 on 30 August 1968. 

4.  He served in Germany from September 1968 to January 1969.  He also served in Vietnam from on or about 16 March 1969 to on or about 5 February 1970.  

5.  On 12 April 1969, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to properly secure his vehicle. 

6.  On 23 September 1969, he was awarded the Purple Heart for injuries incurred on 22 September 1969 by General Order (GO) Number 244 issued by 95th Evacuation Hospital.  He was also awarded the Air Medal with “V” Device for his valorous actions as a door gunner while wounded on 22 September 1969 by GO Number 11336 issued by the Americal Division on 2 November 1969.   

7.  On 5 February 1970, he departed his unit in an AWOL status and on 12 March 1970, he was dropped from the Army rolls as a deserter.  He returned to military control on or about 22 June 1970.  

8.  On 28 June 1970, he again departed his unit in an AWOL status and on 29 June 1970, he was dropped from the Army rolls as a deserter.  He returned to military control on 4 October 1970.  

9.  On 5 November 1970, he again departed his unit in an AWOL status and on 6 November 1970, he was dropped from the Army rolls as a deserter.  He returned to military control on or about 14 February 1972.  He was placed in pre-trial confinement. 

10.  On 17 February 1972, court-martial charges were preferred against him for four specifications of AWOL from 5 February to 23 June 1970, 28 June to 28 October 1970, 12 to 15 October 1970, and 5 November 1970 to 15 February 1972.  

11.  On 24 February 1972, the applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service – in lieu of trial by court-martial.   In his request for discharge, the applicant acknowledged:

* he was making this request on his own free will and he had not been subjected to any coercion whatsoever
* he understood that if the discharge request was approved he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate
* he acknowledged he understood that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, that he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he acknowledged he understood he could expect to encounter substantial prejudice in civilian life
* he elected to submit a statement in his own behalf

12.  In his statement, he stated that he wanted a chapter 10 because he did not believe in the Army and that the Army was wasting money and resources.  He added that he could not stand taking orders or harassment and he wanted to be free.  He was aware that he would never adjust to military life and there was no point in trying.  It was beneficial to the Army if he were cut loose. 

13.  His company, battalion, and senior commanders recommended approval of the discharge action with the issuance of an under other than honorable conditions discharge. 

14.  On 11 March 1972, consistent with the chain of command recommendations, the separation authority approved the applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial and directed the applicant be reduced to the lowest enlisted grade, if applicable, and furnished an Undesirable Discharge Certificate.  Accordingly, the applicant was discharged on 20 March 1972. 

15.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by a court-martial with an Undesirable Discharge Certificate.  He completed 1 year, 8 months, and 16 days of active service with 719 days of lost time.  

16.  On 7 July 1974, the Army Discharge Review Board (ADRB) reviewed his discharge but found it proper and equitable.  The ADRB denied his petition for an upgrade of his discharge. 

17.  On 8 November 2005, the ABCMR also reviewed his discharge but found it proper and equitable.  The ABCMR denied his petition for an upgrade of his discharge. 

18.  He provides, in pertinent part:

	a.  A statement, dated 4 February 2005, from a clinical psychologist who opines the applicant’s experiences in Vietnam more than likely led to an acute exacerbation of his PTSD.

	b.  VA initial evaluation for PTSD examination, dated 20 September 2004.  The chief complaint is stated as PTSD and the diagnosis is shown as prolonged PTSD, depression, alcohol abuse/dependence, and psychological stressors.  

	c.  VA rating decision, dated 24 March 2005, awarding him service-connection for PTSD with secondary depression. 

19.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

	b.  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.

	c.  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.

20.  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." 

21.  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.

22.  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. 

23.  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.  

24.  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.

25.  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?

26.  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 record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  He 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 his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his record of service.

2.  The applicant was discharged because he chose to go AWOL and when he was returned to military control he chose to be discharged.  His service was interrupted by his AWOL and request for voluntary discharge.   The available evidence clearly shows he elected to go AWOL.  Additionally, upon preferring court-martial charges against him, he exercised his right to consult with counsel.  His options were to face the court-martial that could have adjudged a dishonorable or a bad conduct discharge or submit a voluntary request for discharge.  He voluntarily chose the discharge.  Those were choices that he made.  

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.  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 to include award of the Purple Heart and Air Medal with “V” Device.  His misconduct began after leaving Vietnam.  However, subsequent to these experiences, medical evidence shows he was diagnosed with PTSD by a competent mental health professional.  Therefore, it is reasonable to believe the applicant's PTSD condition existed at the time of discharge. 

5.  It is concluded that the PTSD conditions were a causative factor in the misconduct that led to the discharge.  After carefully weighing that fact against the severity of the applicant's misconduct, there is sufficient mitigating evidence to warrant upgrading the characterization of the applicant's service to a general discharge under honorable conditions and restoring his rank/grade to SP4/E-4 (the last rank/grade he held at the time of his separation) with an effective date of 20 March 1972.

6.  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, 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 20 March 1972 to show the characterization of service as "General, Under Honorable Conditions" and his rank/grade as SP4/E-4 with an effective date of 20 March 1972.

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)                                         AR20140017034



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ABCMR Record of Proceedings (cont)                                         AR20140017034



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