IN THE CASE OF:	  

		BOARD DATE:	  26 February 2015

		DOCKET NUMBER:  AR20140018329 


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 a general discharge under honorable conditions.

2.  The applicant states that he suffered from Post-Traumatic Stress Disorder (PTSD) which was not diagnosed at the time of his discharge.  He further states that he was diagnosed for drug usage in Vietnam and was given only 2 weeks of treatment and the Army guidelines for treatment were not followed afterward.  He was sent back to the same environment that caused the problem without adequate time for detoxification or recovery.  He contends that his PTSD contributed to his drug usage and he was not given full treatment for drug usage caused by his PTSD.

3.  The applicant provides a:

* single page extracted from a DSA Form 62A (Army Discharge Review Board Brief), dated 1 April 1974
* single page extracted from a Department of Veterans Affairs (VA) Rating Decision, dated 20 September 2012

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 enlisted in the Regular Army RA on 6 November 1964.  At the completion of basic combat training and advanced individual training, he was awarded military occupational specialty 11B (light weapons infantryman).  He was honorably discharged on 15 November 1965 for immediate reenlistment.

3.  The applicant reenlisted in the RA on 16 November 1965.  On 16 February 1969, he reclassified to MOC 11C (Indirect Fire Crewman).  Following a 6-month period of service in the U.S. Army Reserve Control Group (Reinforcement), he reenlisted in the RA again on 4 April 1969 and once again on 26 June 1970.  He completed three tours in Vietnam and the highest rank/pay grade he attained was specialist four/E-4.  However, he held the rank/pay grade of private/E-1 at the time of his separation.

4.  A review of his record revealed a disciplinary history that shows on various occasions between 14 November 1970 and 10 September 1971, the applicant accepted four nonjudicial punishments under Article 15, Uniform Code of Military Justice for the following offenses:

* being apprehended with an unauthorized weapon
* failing to go to his appointed place of duty
* violating a lawful regulation by being in an off limits area
* writing bad checks (three specifications)
* possessing false ration card, currency control plate, and military identification card

5.  On 29 March 1972, the applicant was found guilty by the United States District Court for the Eastern District of Louisiana, of one count of knowingly and intentionally distributing approximately 2.179 grams of heroin, a schedule 1 narcotic drug controlled substance.  As a result, he was sentenced to imprisonment for a period of 5 years.  It was ordered that following the period of imprisonment, the applicant would be placed on special parole for three years.


6.  On 12 October 1972, the applicant's unit commander notified the applicant of his intent to recommend the applicant for discharge under the provisions of Army Regulation 635-206 by reason of conviction by a civil court.  He was advised of his rights.

7.  The applicant acknowledged receipt of his notification.  He requested representation by counsel, consideration of his case before a board of officers, and did not submit statements in his own behalf.  He waived his right to appeal his civilian conviction.

8.  On 3 May 1973, the board of officers convened.  The applicant did not appear in person because he was in civilian confinement at the time, but he was represented by counsel.  After considering the facts and circumstances surrounding the applicant's case, the board determined that he was undesirable for further retention in the military service because of conviction by a civilian court of a crime of moral turpitude.  As a result, the board recommended that the applicant be separated from the service under the provisions of Army Regulation 635-206 with issuance of an undesirable discharge.

9.  The board proceedings were determined to be legally sufficient and on 10 May 1973, the separation authority approved the recommendation for discharge under the provisions of Army Regulation 635-206 with issuance of an Undesirable Discharge Certificate.

10.  On 11 June 1973, the applicant was discharged from active duty.  He completed 2 years, 1 month, and 9 days of creditable active service during the current enlistment and 7 years, 8 months, and 28 days total active military service.  He had 307 days of lost time due to civil confinement and his service was characterized as under conditions other than honorable.

11.  The applicant's record is void of any indication that he was ever punished for personal use of drugs in any way.

12.  On 30 April 1974 and 5 March 1984, the Army Discharge Review Board (ADRB) denied the applicant's requests for an upgrade of his discharge.  It was noted in the 1974 ADRB proceedings that there is no indication that the applicant's ability to serve was impaired by drug addiction.  The record reflects that the applicant was seen in a rehab program while stationed in Vietnam and that he was subsequently released from that program upon successful completion.  If the applicant was severely addicted as claimed, that addiction was not apparent to personnel in the rehabilitation program.


13.  The applicant provides a:

	a.  single page extracted from a DSA Form 62A, dated 1 April 1974, which shows he told the ADRB that his drug use began in Vietnam in 1970 and that he was granted amnesty and 2 weeks of drug treatment.  Afterward he was reassigned to Fort Bragg, NC, but contended that he should have been sent to a VA hospital for full rehabilitative drug treatment instead.

	b.  single page extracted from a VA Rating Decision, dated 20 September 2012, that shows he was awarded service-connection for PTSD because the evidence determined that this condition was caused by his military service in Vietnam.  This document does not show how the VA reached this determination and does not list the occurrence of any specific stressors.

14.  Army Regulation 635-206, in effect at that time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  That regulation provided, in pertinent part, for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action taken against them which is tantamount to a finding of guilty, of an offense for which the maximum penalty under the Uniform Code of Military Justice is death or confinement in excess of 1 year.  

15.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

16.  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 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 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. 

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 (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.

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 causeal relationship of symptoms to the misconduct.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of any indication that he was ever punished for personal use of drugs in any way or that personal drug use played a role in his discharge.  The evidence of record shows the applicant was found guilty by a civil court in March 1972 for knowingly and intentionally distributing a certain amount of heroin.  He was sentenced to five years confinement.  Accordingly, his chain of command initiated separation action against him and he was accordingly notified.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  His 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.

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.  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.

3.  The applicant's service in Vietnam is noted, but he has failed to identify or substantiate any specific traumatic event(s) that could have served as a catalyst for the onset of PTSD.  He also has failed to identify or substantiate any PTSD-related symptoms from which he suffers.  Although he has been recently awarded service-connection for PTSD by the VA, his misconduct is serious and the reason for his separation (civil conviction for knowingly and intentionally distributing a narcotic drug) was clearly premeditated and was not related to any medical conditions he may have been subsequently diagnosed with or related to his service in Vietnam.

4.  Nothing in his records supports a claim that his extensive history of misconduct was caused by his service in Vietnam.  Although it is reasonable to believe he was subjected to the ordeals of war while serving in Vietnam, his serious misconduct does not entitle him to an upgrade of his 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 indiscipline, his service clearly does not merit an upgrade of his discharge.  Therefore, he is not entitled to a general discharge under the Secretary of Defense's new guidance. 

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)                                         AR20140018329





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ABCMR Record of Proceedings (cont)                                         AR20140018329



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