IN THE CASE OF:  	  

		BOARD DATE:  24 February 2015	  

		DOCKET NUMBER:  AR20140018298 


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 post-traumatic stress disorder (PTSD) was unknown at the time.  He was mentally ill due to PTSD.  A doctor has diagnosed him as having PTSD.  He has previously tried to upgrade his discharge with no luck. 

3.  The applicant provides: 

* Diagnostic Interview Report, dated August 2010
* Clinical Record Cover Sheet, dated 27 April 1972
* Narrative Summary, dated 8 July 1972
* Previous letter to the Board from a licensed clinical social worker
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 15 September 1972

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 AR2002077311, dated 14 January 2003.  

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 enlisted in the Regular Army (RA) on 15 September 1967 and he held military occupational specialty 52B (Power Generation Equipment Operator).   

4.  He served in Okinawa from 25 February 1968 to 24 August 1969.  While there, he was honorably discharged on 7 August 1968 for the purpose of immediate reenlistment.  His DD Form 214 shows he completed 10 months and 23 days of active service and he was awarded the National Defense Service Medal and the Marksman Marksmanship Qualification Badge with Rifle Bar.

5.  He reenlisted in the RA on 8 August 1968, while in Okinawa, assigned to 1st Battalion, 65th Artillery.  

6.  Unit Orders Number 64, issued by Headquarters and Headquarters Battery, 30th Artillery Brigade, promoted him to specialist four (SP4)/E-4 on 20 September 1968. 

7.  On 15 April 1969, in Okinawa, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent from his appointed place of duty on 10 April 1969. 

8.  On 16 April 1969, also in Okinawa, he again accepted NJP under the provisions of Article 15 of the UCMJ for breaking restriction.  His punishment consisted of a reduction to private first class (PFC)/E-3. 

9.  Upon completion of his Okinawa tour he was reassigned to 2nd Battalion, 52nd Artillery, Fort Bliss, TX.  He was promoted back to SP4/E-4 on 4 December 1969.  

10.  On 23 April 1970, at Fort Bliss, he accepted NJP under the provisions of Article 15 of the UCMJ for twice failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a reduction to PFC/E-3. 

11.  He served in Vietnam from on or about 29 September 1970 to on or about 10 February 1972.  He was assigned to the 52nd Signal Battalion. 

12.  On 28 October 1970, in Vietnam, he accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully appropriating a motor vehicle and damaging said vehicle, a government property.  His punishment consisted of a reduction to private two (PV2)/E-2 (suspended for 60 days). 

13.  Special Orders (SO) Number 261, issued by Headquarters, 52nd Signal Battalion, reduced him to PV2/E-2 on 20 November 1970 for misconduct.  

14.  On 16 December 1970, he departed his unit in an absent without leave (AWOL) status.  He returned to military control on 31 March 1971. 

15.  Unit Orders Number 26 issued by 327th Signal Company promoted him back to PFC/E-3 on 1 June 1971. 

16.  On 1 April 1971, he was convicted by a special court-martial of one specification of disobeying a lawful command and one specification of striking a commissioned officer.  The court sentenced him to confinement at hard labor for 60 days, forfeiture of pay, and a reduction to the lowest enlisted grade of E-1.  The convening authority approved his sentence on 18 April 1971.  He was confined from 8 April to 18 May 1971.

17.  On 5 November 1971, he was convicted by a special court-martial of one specification of absenting himself from his unit from 7 to 10 August 1971, one specification of negligently damaging a military truck while driving intoxicated, one specification of wrongfully appropriating a military truck, and one specification of violating a general regulation.  The court sentenced him to a reduction to the lowest enlisted grade of E-1, a forfeiture of pay, and confinement at hard labor for 3 months.  The convening authority approved his sentence.  He was reduced to E-1 on 14 January 1972.

18.  He departed Vietnam in early February 1972 in a patient status.  He was later assigned to 1st Battalion, 11th Artillery, 1st Cavalry Division, Fort Hood, TX. He was advanced to PV2/E-2 on 14 April 1972. 

19.  On 2 August 1972, his command preferred court-martial charges against him for an unknown violation of the UCMJ.  

20.  On 3 August 1972, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were 
available to him.  Following consultation with legal counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  In his request for discharge, he acknowledged he:

* was making the request of his own free will and he had not been subjected to any coercion
* understood that if the discharge request was approved he could be furnished an Undesirable Discharge Certificate
* understood if such a discharge was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA)
* could be deprived of his rights and benefits as a veteran under both Federal and State laws

21.  On 14 August 1972, a review of the applicant's mental and medical examinations was conducted at a Fort Hood clinic.  The Chief, Department of Clinics concluded he was physically and mentally fit for duty with no profile limitations. 

22.  From 9 to 18 August 1972, his company, battalion, and brigade commanders recommended approval of the discharge action with the issuance of a UOTHC discharge.  One officer opined the applicant was a constant AWOL who was given every opportunity to rehabilitate himself.  He admitted that he had no desire to serve in the Army and knowing the consequences of his actions, he still went AWOL.  

23.  On 21 August 1972, consistent with the chain of command recommendations, the separation authority approved the applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial and directed the applicant's reduction to the lowest enlisted grade and issuance of an Undesirable Discharge Certificate.  Accordingly, the applicant was discharged on 15 September 1972.

24.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with an undesirable discharge.  He completed 3 years, 4 months and 20 days net active service this period with and he had nearly 235 days of lost time.  He was awarded or authorized the Vietnam Service Medal with two bronze services stars, Republic of Vietnam Campaign Medal with Device (1960), and Expert Marksmanship Qualification Badge with Rifle Bar.

25.  On 22 July 1976, he was granted a Clemency Discharge pursuant to Presidential Proclamation 4313, dated 16 September 1974.  Accordingly, he was issued a DD Form 215 (Correction to DD Form 214, Report of Separation from Active Duty) that added the clemency discharge to his DD Form 214. 

26.  On 30 April 1980, the Army Discharge Review Board reviewed his discharge but found it proper and equitable.  As such, the ADRB denied his petition for an upgrade of his discharge.  Additionally, on 14 January 2003 the ABCMR also conducted a review of his discharge but found it proper and equitable.  The Board denied his petition for an upgrade. 

24.  He provides a copy of a Diagnostic Interview Report, dated from 20 to 24 August 2010.  He was referred by a VA benefits advocate for a diagnostic interview to address his mental issues.  He reported that he had served in Vietnam and he was discharged with a diagnosis of chronic undifferentiated schizophrenia.  The licensed psychologist concluded that the applicant was deemed to have been seriously mentally ill at the time of his discharge.  He had delusions, bizarre behavior, visual hallucinations, paranoid thinking, anxiety, impulsive acts, anti-social beliefs, and decompensation.  He was most probably suffering from what we now call PTSD.  His diagnosis was PTSD, chronic with continuing manifestation. 

25.  He also provides a Clinical Record Cover Sheet, dated 27 April 1972, showing a diagnosis of chronic undifferentiated schizophrenia.  

26.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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, 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 an individual who was discharged for the good of the Service.

	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.  

27.  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." 

28.  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.

29.  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. 

30.  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.  

31.  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.

32.  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?

33.  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 shows he was charged with the commission of an offense 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.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  

2.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  His character of service is appropriate based on the facts of the case and his discharge accurately reflects his overall record of service.  The applicant provided no information that would indicate the contrary.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  The applicant's service in Vietnam is noted.  However, his misconduct began before he arrived in Vietnam.  From the date of his enlistment in September 1967 to the date he arrived in Vietnam September 1970, he had/was:

* AWOL on 10 April 1969 and accepted NJP under the provisions of Article 15 for this AWOL
* accepted NJP under the provisions of Article 15 of the UCMJ for breaking restriction on 13 April 1969
* accepted NJP under the provisions of Article 15 of the UCMJ for twice failing to go at the time prescribed to his appointed place of duty

4.  While in Vietnam, his misconduct continued.  He: 
* accepted NJP under the provisions of Article 15 of the UCMJ for wrongfully appropriating a truck, driving it while drunk, and damaging it
* was convicted by a court-martial for disobeying an order and striking a commissioned officer
* was convicted by a court-martial for being AWOL in combat, driving a military truck while intoxicated and damaging the military truck, and violating a general regulation

5.  The applicant's service in Vietnam is noted.  The Board wants him and all others concerned to know that its action in no way diminishes the sacrifices made by him in service to our Nation.  He and all Americans should be justifiably proud of his service in arms.  The Board also noted the circumstances at the time, including the conditions of the war.  However, unlike the thousands of Vietnam service members who experienced similar circumstances but served honorably and completed their military service, the applicant violated the UCMJ and when court-martial charges were preferred against him, he elected the voluntary discharge. 

6.  Nevertheless, 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.

7.  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.  Although his misconduct began prior to even arriving in Vietnam, it became serious after his return from Vietnam.  Years later and subsequent to his Vietnam 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. 

8.  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 PV2/E-2 (the last rank/grade he held at the time of his separation) with an effective date of 15 September 1972.

9.  He is not entitled to an honorable discharge because an honorable discharge is a separation with honor 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, NJP, and court-martial conviction, 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 AR2002077311, dated 14 January 2003.  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 September 1972 to show the characterization of service as "General, Under Honorable Conditions" and his rank/grade as PV2/E-2 with an effective date of 15 September 1972.

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 how 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)                                         AR20140018298



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ABCMR Record of Proceedings (cont)                                         AR20140018298



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