IN THE CASE OF:	  

		BOARD DATE:	  2 June 2015

		DOCKET NUMBER:  AR20140018004


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 general discharge (GD) to an honorable discharge (HD).

2.  He states, in effect, that:

* he was discharged because there was a "reefer" and ashes in his room; however, he was not the only person living in the room at the time and no drugs were found
* he served his duty in Vietnam, was wounded, and received a Purple Heart (PH)
* he now has post-traumatic stress disorder (PTSD) and probably was  contaminated with Agent Orange; therefore, he is entitled to an HD
* there are benefits that he cannot receive without an HD

3.  He provides his DD Form 214 (Report of Separation from Active Duty) and a DD Form 293 (Applicant for the Review of Discharge from the Armed Forces of the United States.)

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.  On 18 November 1966, the applicant enlisted in the Regular Army.  After completing initial entry training, he was awarded military occupational specialty 12B (Combat Engineering Specialist).

3.  A DD Form 493 (Extract of Military Records of Previous Convictions) shows he was convicted at a special court-martial (SPCM) on 6 April 1967 for assault by stabbing a Soldier in the chest with a dangerous weapon.

4.  His DA Form 20 (Enlisted Qualification Record) item 31 (Foreign Service) shows he served in the Republic of Vietnam (RVN) from 15 May 1967 to 
14 May 1968.

5.  On 15 November 1968, he received nonjudicial punishment (NJP) for missing movement, for being absence without leave, and for a general order violation by being unfit for duty by reason of over indulgence in alcohol.

6.  On 25 November 1968, he was convicted at a SPCM for the possession of an illegally controlled substance (marijuana).

7.  On 25 November 1968, he was recommended by his commanding officer for separation due to unfitness.  

8.  After consulting with counsel, he was counseled on the basis for contemplating action for separation due to unfitness under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge for Unfitness and Unsuitability).

	a.  He acknowledged that:

* he had a right to present his case before a board of officers
* as a result of such a discharge, he would be deprived of many or all Army benefits and might be ineligible for many or all benefits administered by the VA
* he could be deprived of his rights and benefits as a veteran under Federal and State laws

* he could expect to encounter substantial prejudice in civilian life because of a GD under honorable conditions or an undesirable discharge (UD)

	b.  He indicated he would not submit statements in his own behalf. 

9.  On 20 December 1968, the separation authority approved the command's request for separation and directed he be given an UD.  His DD Form 214 shows:

* item 11c (Reason and Authority) - "AR 635-212 SPN [Separation Program Number] 384"
* item 13a (Character of Service) - "UNDER CONDITIONS OTHER THAN HONORABLE"
* item 13b (Type of Certificate Issued) - "DD Form 258A" (Undesirable Discharge Certificate)
* item 18a (Record of Service) - 2 years, 1 month, and 3 days of net active service
* Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) - Purple Heart

10.  The record shows he applied to the Army Discharge Review Board (ADRB) for a change in his character of service within its 15-year statute of limitations.  Although, the complete facts and circumstances of his upgrade from the ADRB are not contained in the available records, his records show on 20 March 1975, he was notified that his under conditions other than honorable (UCOTH) discharge was upgraded to under honorable conditions.  

11.  The applicant received a new DD Form 214 that shows in:

* item 9c – "AR 635-212 SPN [Separation Program Number] JMM"
* item 9e – "UNDER HONORABLE CONDITIONS"
* item 9f – "DD Form 257A" (Under Honorable Conditions)

12.  Army Regulation 635-5 (Separation Documents), in effect at the time, established the standardized policy for preparing and distributing the DD Form 214.  It states, Appendix A (SPN and Authority Governing Separations) listed the separation authorities with their associated SPNs, narrative reasons for separation, and reenlistment eligibility.  The appendix shows SPN 384 applied to individuals discharged under the provisions of Army Regulation 635-212 for unfitness based on frequent involvement in incidents of a discreditable nature with civil or military authorities.  Individuals discharged under this authority were not eligible to reenlist.
13.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  

	a.  Paragraph 6a 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).  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

	b.  Section IV (Procedure) stated the unit commander of the individual would recommend initiation of action under this regulation, disposition through medical channels, or disciplinary action.  The unit commander could afford the individual the opportunity to waive his right of a hearing before a board of officers.  In such a case, the commander was to:

		(1) advise the individual in writing of the basis for the proposed discharge action and advise him that he had the right to:

* present his case before a board of officers
* submit statements in his own behalf
* be represented by counsel
* waive the above rights in writing

		(2) give the enlisted member reasonable time (not less than 48 hours) to consider waiver of board proceedings and give the enlisted member the opportunity to consult with counsel prior to waiving his rights; and 

		(3) obtain a signed statement from the individual indicating that he had been advised of the basis for the contemplated separation and its effect and of the rights listed in (1) above.  The statement was to include a request or a waiver by the individual of each right.  Counsel was to sign the statement and the statement was to be included in the unit commander's report forwarded to the separation authority.

	c.  Section IV further stated that, on receiving a recommendation for separation for unfitness, the commander exercising general court-martial jurisdiction could:
		(1) disapprove the recommendation and direct reassignment of the individual to another organization; or 

		(2) disapprove the recommendation and return the case to the originator for disposition by other means; or

		(3) disapprove the recommendation relating to unfitness, and convene a board of officers, or refer the case to the commander exercising special court-martial jurisdiction to convene a board of officers, to determine whether the individual should be separated for unsuitability; or

		(4) convene a board of officers to determine whether the individual should be separated for unfitness; or

		(5) when the board hearing had been properly and effectively waived, direct separation of the individual for unfitness or unsuitability; or

		(6) when the board hearing had been properly and effectively waived, approve separation of the individual for unfitness or unsuitability and suspend execution of the separation; or 

		(7) direct that the case be processed through medical channels, if appropriate.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic authority for the separation of enlisted personnel. 

	a.  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.

	b.  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) 

		 (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 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.

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 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.  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 ABCMR does not grant requests to upgrade discharges solely for the purpose of making applicants eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

2.  The applicant states he was the not the only person living in the room when a "reefer" and ashes were found.  He previously applied to the ADRB in 1975 for a characterization upgrade based on the same statement and was granted a GD in spite of his NJP and two SPCM's for serious misconduct. 

3.  Although the applicant served in the RVN, there is no supporting documentation to show he has PTSD or that it was incurred while on active duty service, or that he has health issues that are related to "agent orange" to support his claim.

4.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  All requirements of law and regulation were met and his rights were fully protected throughout the discharge process.  

5.  Therefore, due to his repeated misconduct and his previous characterization upgrade, there is no basis upon which to grant any further relief. 

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)                                         AR20140007657



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ABCMR Record of Proceedings (cont)                                         AR20140018004



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