IN THE CASE OF:	  

		BOARD DATE:	  24 February 2015

		DOCKET NUMBER:  AR20140017261 


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 (UOTHC) discharge to a fully honorable discharge. 

2.  The applicant states an injustice occurred based on the facts of undiagnosed combat-related post-traumatic stress disorder (PTSD) condition that was present during the time of his service.  The medical condition should be considered as a mitigating factor.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's UOTHC discharge be upgraded to fully honorable.  

2.  Counsel states the applicant served in Vietnam and during this service his unit was under constant mortar attacks and light/heavy gunfire.  He was scared, nervous, and under serious psychological stress from war.  He never received any nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ).  The stress of war led him to go absent without leave (AWOL).  At the time of his separation, his constitutional due process and equal protection rights were violated as well as his rights under the law.  He was not provided effective counsel nor was full disclosure given to him in relation to his separation proceedings.  Proper assessment and treatment of his medical and psychological conditions were not provided. 

3.  Counsel provides:

* Secretary of Defense Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming PTSD
* Statement from a licensed professional counselor
* General Diagnostic Assessment Milwaukee Vet Center Psychological Review 
* Department of Veterans Affair (VA) Review PTSD Disability Benefits Questionnaire  

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 AR20080016103, dated 15 January 2009. 

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 was inducted into the Army of the United States on 25 July 1969 and he held military occupational specialty (MOS) 11B (Light Weapons Infantryman). 

4.  He served in Vietnam from on or about 17 December 1969 to on or about 8 June 1970.  He was assigned to the 59th Aviation Battalion, 101st Airborne Division.  While in Vietnam, he was honorably discharged on 2 May 1970 for the purpose of immediate reenlistment.  

5.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued at that time shows he completed 9 months and 8 days of active service and he was awarded/authorized the National Defense Service Medal and Vietnam Service Medal.  

6.  On 3 May 1970, he enlisted in the Regular Army for Army Career Group 76 (Supply) and he was given 30 days of reenlistment leave.  Additionally, on 4 May 1970, Headquarters, 101st Airborne Division published Special Orders 124 advancing him to specialist four/E-4, effective 4 May 1970.  
7.  On 8 June 1970, he was reported in an AWOL status by his unit, and on 21 July 1970, he was dropped from the Army rolls as a deserter.  He was apprehended by civil authorities and returned to military control at Fort Carson, CO, on 20 January 1971.  

8.  On 28 February 1971, he again departed his unit in an AWOL status and on the same date, he was dropped from the Army rolls as a deserter.  He was apprehended by civil authorities and returned to military control on or about 17 October 1971. 

9.  It appears upon his return from deserter status, court-martial charges were preferred against him for one or more specifications of violating the UCMJ. 

10.  The complete facts and circumstances, including the court-martial charge sheet and separation packet, are not available for review with this case.  However, his records contain:

	a.  Special Orders Number 315, issued by Headquarters, 4th Infantry Division, Fort Carson, CO, dated 11 November 1971, reducing him from private first class/E-3 to the lowest enlisted grade, effective 10 November 1971. 

	b.  Special Orders Number 319, issued by Headquarters, 4th Infantry Division, Fort Carson, CO, dated 15 November 1971, ordering his discharge from active duty under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), for the good of the service, in lieu of court-martial, with an Undesirable Discharge Certificate, effective 15 November 1971. 

	c.  A duly-constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was discharged UOTHC for the good of the service in lieu of trial by court-martial on 15 November 1971 under the provisions of Army Regulation 635-200, chapter 10, and issued a DD Form 258A (Undesirable Discharge Certificate).  He completed 3 months and 12 days of active military service during this period and he had 458 days of lost time from 8 June 1970 to 19 January 1970 and 28 February to 17 October 1971. 

11.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  On 15 January 2009, the Board denied his petition for an upgrade of his undesirable discharge. 

13.  He provides three statements of support as follows: 
	a.  A statement, dated 12 July 2012, from a licensed professional counselor who states she had assigned him the diagnosis of PTSD and major depressive disorder.  She opines his PTSD was a result of his combat experience.  

	b.  A General Diagnosis Assessment, dated 21 June 2012.  During the interview, he reported that he was in a war that was not his war and that it led to killing, fighting, and complications.  He also claimed the VA failed to address his concerns.  His diagnosis is shown as PTSD and major depressive disorder.  

	c.  Psychological Review, dated 13 May 2008, wherein a readjustment counseling therapist opined that the applicant appeared to have been traumatized after his tour in Vietnam by the emotional and psychological problems.  He recommended inpatient PTSD treatment.  

	d.  VA Review PTSD Disability Benefits Questionnaire, dated 11 February 2013, wherein he claims PTSD. 

14.  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 VA 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.
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) 

* 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. 

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 UOTHC 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 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 UOTHC 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 is void of the specific facts and circumstances surrounding his discharge action.  It appears that he was charged with the commission of offense(s) 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.

2.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

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.  His misconduct began in Vietnam when he departed the combat zone in an AWOL status, a serious offense.  

5.  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. 

6.  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 PFC/E-3 (the last rank/grade he held at the time of his separation) with an effective date of 15 November 1971.

7.  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 AR20080016103, dated 15 January 2009.  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 15 November 1971 to show the characterization of service as "General, Under Honorable Conditions" and his rank/grade as PFC/E-3 with an effective date of 15 November 1971.

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 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)                                         AR20140017261



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140017261



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1