IN THE CASE OF:	  

		BOARD DATE:	  24 February 2015

		DOCKET NUMBER:  AR20140017312 


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 an upgrade of his discharge under other than honorable conditions (UOTHC).

2.  The applicant states that he believes the characterization of his service should be upgraded due to injuries, abuse, and distrust by his chain of command after being wounded, being sent to the United States, having his records lost, and having his pay and promotion denied.  He believes, at the time, he was suffering from post-traumatic stress disorder (PTSD), which was diagnosed in 2009.

3.  The applicant provides the following documents in support of his application:

* two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge)
* a DD Form 215 (Correction to DD Form 214)
* Army Board for Correction of Military Records (ABCMR) letter, dated 20 August 2009
* a Secretary of Defense memorandum, dated 3 September 2014

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 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 (RA) on 18 February 1966.  On 4 June 1967, he was honorably discharged for the purpose of immediate reenlistment, and on 5 June 1967, he reenlisted in the RA for 3 years and continued serving on active duty. 

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) during the following periods:  22 September 1966 through 30 January 1967 and 6 October 1967 through 16 February 1968.  The record shows he earned the following awards:

* National Defense Service Medal
* Purple Heart
* Vietnam Service Medal with 3 bronze service stars
* RVN Campaign Medal with Device (1960)
* RVN Gallantry Cross with Palm Unit Citation
* RVN Civil Actions Honor Medal First Class Unit Citation
* Presidential Unit Citation
* Combat Infantryman Badge
* Marksman Marksmanship Qualification Badge with Rifle Bar

4.  The applicant’s disciplinary record shows he accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following five separate occasions for the offenses indicated on:

   a.  3 January 1967, for writing a letter while posted as a sentinel;

   b.  16 January 1967, for being derelict in the performance of his duty by negligently disobeying a lawful general order;

   c.  21 February 1967, for disorderly conduct and for being incapable of performing his duties as a result of previous indulgence in intoxicating liquor;

   d.  23 June 1967, for two specifications of failing to go to his appointed place of duty at the time prescribed on 10 and 11 June 1967; and


e.  24 June 1968, for disobeying a lawful order while on guard duty on 
22 June 1968.  

5.  The applicant’s disciplinary record also shows that on 21 March 1967, he was convicted by a summary court-martial (SCM) of breaking restriction on 25 February and 3 March 1967 and of being disorderly in a public place on 
25 February 1967.  

6.  On 18 January 1969, a special court-martial (SPCM) convicted the applicant of being disrespectful towards a noncommissioned officer on 12 December 1968 and of being absent without leave (AWOL) from 8 through 11 January 1969.  

7.  On 17 December 1968, the applicant's commander recommended that he be barred from reenlistment.  The commander cited the applicant's habitual misconduct as the basis for the recommendation.  The applicant acknowledged that he read and understood the allegations made by his commander and he elected not to make a statement in his own behalf.  On 13 January 1969, the appropriate authority approved the bar to reenlistment. 

8.  The record is void of a separation packet containing the specific facts and circumstances surrounding the applicant's discharge processing.  The record does contain a DD Form 214 that shows on 9 May 1969, the applicant was discharged, in the rank of private/E-1, under the provisions of Army Regulation 635-212, by reason of unfitness.  It further shows he completed 1 year, 10 months, and 23 days of creditable active military service during the period covered by the DD Form 214 and a total of 3 years, 2 months, and 
20 days of creditable active military service. 

9.  The applicant's record is void of any medical evidence and he has not provided any medical evidence showing that he was diagnosed with any type of medical or mental condition either during or after his period of service. 

10.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15 year statute of limitations. 

11.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a of the regulation provided that an individual was subject to separation for unfitness when one or more of the following conditions existed:  (1) because of frequent incidents of a discreditable nature with civil or military authorities; (2) sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; (3) drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; (4) an established pattern of shirking; (5) an established pattern of dishonorable failure to pay just debts; and 
(6) an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  The separation authority could authorize a general discharge or honorable discharge honorable if warranted by the member's record of service; however, when separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

12.  PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster.  The Diagnostic and Statistical Manual (DSM) of Mental Disorders 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." 

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 use, or other illness. 

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 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.  

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 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.

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?

18.  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 causal relationship of symptoms to the misconduct.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's discharge proceedings for unfitness due to frequent involvement in incidents of a discreditable nature with civil or military authorities were conducted in accordance with law and regulations in effect at the time.  The characterization of the applicant's service was commensurate with the reason for discharge and overall record of military service in accordance with the governing regulations in effect at the time.

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.

3.  Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible recharacterization of their overall service.

4.  A review of the applicant's record and the evidence that he provided shows that he was deployed to Vietnam and could have been subjected to the ordeals of war while serving in there.  However, there are no documented incidents of specific traumatic events.

5.  The applicant's record is void of any evidence and he has not provided medical evidence that shows he was diagnosed with PTSD/PTSD-related symptoms by a competent mental health professional at any time.  Therefore, there is no reason to presume the applicant suffered from PTSD at the time of discharge. 

6.  In view of the foregoing and in the absence of a PTSD diagnosis, it cannot be concluded that 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 insufficient mitigating evidence to warrant upgrading the characterization of the applicant's service to a general discharge under honorable conditions.

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)                                         AR20140017312



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ABCMR Record of Proceedings (cont)                                         AR20140017312



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