IN THE CASE OF:	  

		BOARD DATE:	  9 June 2015

		DOCKET NUMBER:  AR20140018145 


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 bad conduct discharge to a general, under honorable conditions discharge.   

2.  The applicant states:

* when he was confronted with the prevailing attitude concerning the Vietnam War as a 19 year old, he was simply unable to handle it
* it was very difficult for him given what he had been through as a first hand witness and participant in combat 
* he believes he was probably suffering from post-traumatic stress disorder (PTSD) and self-medicating on drugs and alcohol
* he needed counseling to reintegrate into society but it was not available; he did the only thing he could think of - he ran from the war
* he ran from the reaction to the war, the flashbacks, nightmares, and vivid and wild dreams
* he has paid a dear price and he is now totally disabled and he would like to restore his discharge 
* after working for 30 years in construction and driving trucks, he believes he has reestablished himself as a citizen in good character and is deserving of the upgrade 

3.  The applicant provides: 

* DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), ending on 7 December 1970 and 25 May 1967
* DA Form 20 (Enlisted Qualification Record)
* DA Form 20B (Insert to DA Form 20, Record of Court-Martial Conviction)
* Statement from his wife and brothers in law to the Department of Veterans Affairs (VA)
* Statement from a fire chief

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's records show he enlisted in the Regular Army (RA) on 5 April 1966.   He was trained in and held military occupational specialty 13A (Field Artillery Basic).  He served in Germany from on or about 24 August 1966 to on or about 24 June 1967.  He was assigned to Battery C, 6th Battalion, 10th Artillery.

3.  On 4 December 1966, in Germany, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully damaging a passenger automobile, being disorderly, and being absent without proper authority. 

4.  He was honorably discharged on 25 May 1967 for the purpose of immediate reenlistment.  His DD Form 214 shows he completed 1 year, 1 month, and 21 days of active service.  He was awarded or authorized the National Defense Service Medal and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-14).

5.  He reenlisted in the RA on 26 May 1967, in Germany.  A week later, on 2 June 1967, he accepted NJP under the provisions of Article 15 of the UCMJ for being absent without leave (AWOL) on 1 June 1967.

6.  He served in Vietnam from 12 August 1967 to 11 August 1968.  He was assigned to the 630th Ordnance Company. 

7.  Following completion of his Vietnam tour, he was reassigned to Company B, 2nd Battalion, 1st Artillery, Fort Sill, OK. 

8.  On 30 September 1968, he accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 21 to 26 September 1968.

9.  On 13 December 1968, he was convicted by a special court-martial of two specifications of AWOL from 1 to 23 November 1968 and from 24 November to 3 December 1968.  The court sentenced him to confinement at hard labor for 4 months, a forfeiture of pay, and reduction to private (PVT)/E-1.  The convening authority approved his sentence on 13 December 1968. 

10.  On 24 January 1969, he was again convicted by a special court-martial of one specification of AWOL from 26 December 1968 to 14 January 1969.  The court sentenced him to confinement at hard labor for 6 months and a forfeiture of pay for 6 months.  The convening authority approved his sentence on 31 January 1969. 

11.  He was again reported AWOL as a deserter from 8 to 9 April 1969, 22 April 1969, 3 May to 1 June 1969, and 2 to 24 June 1969.

12.  On 16 September 1969, he departed his unit in an AWOL status and on 19 February 1970, he was dropped from the Army rolls as a deserter.  He ultimately returned to military control on 20 April 1970.

13.  On 13 July 1970, at Fort Gordon, GA, he was convicted by a general court-martial of one specification of AWOL from 16 September 1969 to 21 April 1970.  The court sentenced him to a reduction to the lowest enlisted grade, a forfeiture of all pay and allowances, and a bad conduct discharge.

14.  On 19 August 1970, the convening authority approved the sentence and except for the bad conduct discharge ordered the sentence executed.  The record of trial was forwarded to The Judge Advocate General of the Army for appellate review.  The applicant was confined at Fort Leavenworth. 

15.  On 19 August 1970, the U.S. Army Court of Criminal Appeals affirmed the findings of guilty and the sentence. 

16.  Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, General Court-Martial Order Number 1129, dated 17 November 1970, shows that after completion of all required post-trial and appellate reviews, the convening authority ordered the bad conduct discharge duly executed.

17.  Accordingly, the applicant was discharged from the Army on 7 December 1970.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 11, as a result of court-martial, other.  This form further shows the applicant's character of service as under other than honorable conditions and he was issued a Bad Conduct Discharge Certificate.  He completed 1 year, 9 months, and 7 days of creditable military service and he had 436 days of lost time.

18.  He submitted the following medical documents:

	a.  A statement, dated 29 April 2014, from his wife to the VA.  She recounts the applicant's upbringing, their marriage, his military service, and his service in Vietnam.  She attributes the applicant's AWOL to PTSD and she compares his service against those who fled to Canada.  She also describes some of the applicant's medical ailments and his disabilities.

	b.  A statement, dated 3 October 2014, from his brother in law to the VA.  He also describes the applicant's marriage to his sister and the challenges they experienced.  He attributes his AWOL to PTSD.  He describes him as a man of God despite enduring the pain.

	c.  A statement, dated 3 October 2014, from a second brother in law to the VA.  He describes his own upbringing and community.  He also describes the applicant as an involved husband and parent who served his country in Vietnam. He opines that the applicant should have his discharge upgraded. 

	d.  A statement, dated 8 August 1997, from an assistant fire chief in Fargo, OK.  He describes the applicant as a helpful and giving person.  He also describes him as a man of God who serves his faith and as a solid member of the community. 

19.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the Army Board for Correction of Military Records (ABCMR) is not empowered to set aside a conviction.  Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

20.  Army Regulation 635-200 (Personnel Separations) provides for the following characters of service: 

	a.  Paragraph 3-7a states 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 states 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.

21.  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." 

22.  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.

23.  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. 

24.  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.

25.  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.

26.  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?

27.  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 was convicted by a general court-martial and he was sentenced to a reduction, confinement, and a bad conduct discharge.  His trial by a general court-martial was warranted by the gravity of the offense charged.  Conviction and discharge were effected in accordance with applicable law and regulations, and the discharge appropriately characterized the misconduct for which the applicant was convicted.  Presumably the court considered his war-time service when determining his sentence.

2.  The ABCMR does not reexamine issues of guilt or innocence under a court-martial conviction.  This is the court-martial convening authority and the appellate review function and cannot be upset by the ABCMR.  Any redress by this ABCMR of the finality of a court-martial conviction is prohibited by law.  The ABCMR is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

3.  Given the applicant's undistinguished record of service, consisting of 3 instances of NJP, two prior courts-martial convictions, and an extensive history of AWOL, and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case. 

4.  The Board weighed his claim of potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct that resulted in his conviction.  However, the applicant did not provide evidence of a PTSD diagnosis by a competent mental health professional or evidence of conditions that could be considered a mitigating factor in the misconduct that caused his bad conduct discharge.  

5.  The applicant’s discharge was appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  Based on his record of extensive history of indiscipline, his service clearly does not merit an upgrade of his discharge.  Therefore, he is not entitled to an honorable or a general discharge.

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)                                         AR20140018145



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ABCMR Record of Proceedings (cont)                                         AR20140018145



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