BOARD DATE:	  26 February 2015

		DOCKET NUMBER:  AR20140018198 


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) to an honorable discharge.

2.  The applicant states that post-traumatic stress disorder (PTSD) was unknown in 1971 and it was not recognized by the American Psychiatric Association (APA) until 1980.  He served in Vietnam with honor and only after returning from Vietnam and learning of his sister's death was he unable to keep it together.  He clearly had PTSD and contends that PTSD was the catalyst for his misconduct.  He was diagnosed with PTSD and is requesting an upgrade of his discharge based upon the Secretary of Defense guidance dated 3 September 2014.

3.  The applicant provides a:

* Report of Diagnosis, dated 30 September 2014
* 14-page extract from his Readjustment Counseling Services Client Information Record, dated 31 May 2013
* single page extracted from a Department of Veterans Affairs (VA) Statement of the Case, dated 12 February 2010

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests favorable consideration of the applicant's request.

2.  Counsel states the applicant's request is made in accord with the 3 September 2014 guidance from the Secretary of Defense.  The applicant has been diagnosed as having PTSD by two separate entities.

3.  Counsel provides no additional evidence.

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 29 November 1968, the applicant enlisted in the Regular Army (RA) for 3 years.  He successfully completed his training and he was awarded military occupational specialty (MOS) 11B (light weapons infantryman).  He was subsequently transferred to and he arrived in Vietnam on 11 May 1969.

3.  He was honorably discharged on 28 July 1969 for the purpose of immediate reenlistment.  His DD Form 214 for this period of service shows he completed 8 months of active service.

4.  He was in Vietnam on 29 July 1969 when he reenlisted in the RA for 3 years.  He returned to the continental United States on 11 April 1970 and he was assigned to Company B, 2nd Battalion, 13th Armor, 1st Armor Division, Fort Hood, TX.

5.  The applicant was convicted by a special court-martial on 30 October 1970 of being absent without leave (AWOL) from 29 June 1970 until on or about 2 July 1970.  He was sentenced perform extra duty for 35 days.

6.  On 9 February 1971, nonjudicial punishment (NJP) was imposed against the applicant for being AWOL from 1 February 1971 until 2 February 1971.  His punishment consisted of 14 days of restriction and extra duty.

7.  On 15 April 1971, NJP was imposed against the applicant for being absent without authority from 0600 hours to on or about 1830 hours on 5 April 1971.  His punishment consisted of 14 days of restriction and extra duty.

8.  The applicant was notified on 10 June 1971 that he was being recommended for discharge under the provisions of Army Regulation 635-212 (Personnel Separations-Discharge-Unfitness and Unsuitability) by reason of unfitness, due to frequent involvement of a discreditable nature with military or civil authorities.  He acknowledged receipt of the notification on 6 July 1971 and, after consulting with counsel, he waived his right to submit a statement in his own behalf.

9.  On 21 July 1971, the applicant was convicted by a summary court-martial of being AWOL from 24 April until 27 April 1971; 30 April until 1 May 1971; 31 May until 1 June 1971; 22 June until 24 June 1971 and 27 June until 29 June 1971.  He was sentenced to reduction to the grade of E-1, forfeiture of $120.00 pay per month for 1 month, and hard labor without confinement for 45 days.

10.  The appropriate authority approved the recommendation for discharge on 4 August 1971 and he directed the issuance of an Undesirable Discharge Certificate.  Accordingly, on 31 August 1971 the applicant was discharged under the provisions of Army Regulation 635-212, for unfitness, due to frequent involvement of a discreditable nature with military or civil authorities.  He had completed 1 year, 9 months, and 4 days of net active service this period, for a total of 2 years, 5 months, and 4 days of creditable active service, with 121 days of lost time due to AWOL and confinement.  He was furnished an Undesirable Discharge Certificate.

11.  A review of the available records does not show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

12.  The applicant provides a:

	a.  single page extracted from a VA Statement of the Case, dated 12 February 2010, which shows he was denied benefits administered by the VA as a result of his service being characterized as UOTHC.

	b.  14-page extract from his Readjustment Counseling Services Client Information Record, dated 31 May 2013, which shows he was diagnosed with PTSD and participated in both individual and group counseling sessions in order to learn how to cope with its symptoms.  

		(1)  This record shows the catalyst for the applicant's PTSD was a culmination of the following:

* he spent 11 months in Vietnam where he was exposed to the hardships of combat
* he experienced some explosions which resulted in a busted eardrum
* he was shot while in a helicopter
* he was shocked to see the large amount of dead bodies that resulted from combat in the north
* a lot of his friends were killed; he would spend the evening with them writing letters and then have to pick up their body parts the next morning
* he served as a "tunnel rat" and was traumatized by having to go into a hole where he could have been killed
* his commanders would not allow him time off to attend his sister's funeral

		(2)  This record also shows he displayed the following symptoms of PTSD:

* he does not feel that he is a true veteran even though he spent 11 months in Vietnam
* he becomes tearful when thinking about his past and uses avoidance skills to not think about it
* he has experienced significant impairment in social and occupational functioning
* he has disturbed sleep
* he suffers from anxiety
* he is unable to enter a closed area without recalling his experience as a "tunnel rat" and becoming very anxious
* he has vivid nightmares

	c.  Report of Diagnosis rendered by a licensed psychologist on 30 September 2014.  This document shows the psychologist diagnosed the applicant with PTSD based upon him meeting numerous criteria listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM) - fifth revision.

13.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana, an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts or failure to contribute adequate support to dependents, were subject to separation for unfitness.  Such action would be taken when it was clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier further effort was unlikely to succeed.  An undesirable discharge was normally considered appropriate.

14.  Paragraph 3-7a of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

15.  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. 

16.  PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster.  The DSM is published by the 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." 

17.  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.

18.  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 1 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. 

19.  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.  

20.  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.

21.  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?

22.  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 misconduct, were conducted in accordance with law and regulations in effect at the time.  The characterization of the applicant's discharge 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 subjected to the ordeals of war while serving in the RVN.  The following experiences are of particular note:

* he experienced some explosions which resulted in a busted eardrum
* he was shot while in a helicopter
* he was shocked to see the large amount of dead bodies that resulted from combat in the north
* a lot of his friends were killed; he would spend the evening with them writing letters and then have to pick up their body parts the next morning
* he served as a "tunnel rat" and was traumatized by having to go into a hole where he could have been killed

5.  Subsequent to these experiences, medical evidence shows the applicant was diagnosed with PTSD/PTSD-related symptoms by a competent mental health professional.  Therefore, it is reasonable to believe the applicant's PTSD condition existed at the time of discharge. 

6.  The applicant's record is void of any serious previous misconduct during this period of service and the misconduct of going AWOL for an extensive period of time appears to have been an event that was the result of an uncharacteristic lapse in judgment.

7.  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.

8.  An honorable character of service is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel and an under honorable conditions character of service is appropriate for those Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  The applicant's military service was marred with misconduct more than once.  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 a recommendation for partial relief.  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 31 August 1971 to show the characterization of service as "General, Under Honorable Conditions."

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 upgrading his characterization of service to 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)                                         AR20140018198





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ABCMR Record of Proceedings (cont)                                         AR20140018198



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