IN THE CASE OF:	  

		BOARD DATE:	  4 June 2015

		DOCKET NUMBER:  AR20140018363 


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 under other than honorable conditions discharge to a fully honorable discharge.

2.  The applicant states:

* the discharge was given to him because of his post-traumatic stress disorder (PTSD) and the mishandling of [his] mental condition
* the behavior he exhibited that led to his discharge was due to his documented substance abuse
* his substance abuse was the direct result of the horrific experiences he encountered while assigned to Can Tho Army Air Base
* it was also due to the racial treatment he received from his battalion authoritative (officer) personnel 
* when he arrived at his last duty station at Fort Hood, TX, racial issue were prevalent in Texas at the time 
* the incidents that led to his discharge were based on prejudicial philosophies and misdiagnosed medical condition 
* it was also due to his own distrust due to the treatment he received 

3.  The applicant does not provide any 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.  The applicant's records show he enlisted in the Regular Army on 5 January 1971 and he trained in and held military occupational specialty 55B (Ammunition Storage Specialist). 

3.  He served in Vietnam from 13 June 1971 to 21 March 1972.  He was assigned to Troop C, 16th Cavalry, 1st Aviation Brigade. 

4.  While in Vietnam he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for: 

* 27 September 1971, wrongfully violating a pass regulation, being in an area off limits, and failing to go at the time prescribed to his appointed place of duty 
* 18 November 1971, willfully disobeying a lawful order to work on a sandbag detail 
* 2 March 1972, violating a general regulation by being in an area off limits and wrongfully appropriating a 2 1/2 truck (tanker)

5.  Also while in Vietnam his chain of command initiated a Certificate of Unsuitability for Enlistment or Reenlistment (Bar to Reenlistment Certificate) against him citing his misconduct and unsatisfactory performance and efficiency. He was provided with a copy of this bar but elected not to submit a statement in his own behalf.  All commanders in his chain of command recommended approval.  The approval authority ultimately approved this bar. 

6.  Following completion of his Vietnam tour, he was reassigned to Troop A, 7th Squadron, 17th Cavalry, 1st Cavalry Division, Fort Hood, TX.

7.  On 15 March 1973, court-martial charges were preferred against the applicant for one specification of wrongfully possessing heroin and one specification of wrongfully possessing hypodermic syringe with needles. 

8.  His chain of command recommended trial by a special court-martial authorized to adjudge a bad conduct discharge. 

9.  On 7 May 1973, an investigating officer (IO) was appointed to investigate charges of theft against the applicant.  Following an investigation, the IO found sufficient evidence that the applicant committed various violations of theft and pawn.

10.  On 12 April 1973, additional court-martial charges were preferred against the applicant for:

* five specifications of stealing color TV sets from the Fort Hood Post Exchange 
* one specification of stealing a color TV set from a commissioned officer 
* one specification of stealing a radio set from a noncommissioned officer
* one specification of unlawfully receiving a stolen TV set, the property of another Soldier

11.  On 27 April 1973, subsequent to referral of court-martial charges, he consulted with legal counsel and 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 chapter 10, Army Regulation 635-200 (Enlisted Separations Enlisted Personnel), for the good of the service in lieu of trial by court-martial.  In his request for discharge, he stated/acknowledged that:

* prior to completing this request, he was afforded the opportunity to consult with counsel and he did so on 27 April 1973
* he was making the request of his own free will and he had not been subjected to any coercion
* he acknowledged he understood that if his request was approved he could be furnished an Undesirable Discharge Certificate
* he acknowledged that he 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
* he acknowledged he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he had retained a copy of his chapter 10 request for discharge
* he elected not to submit a statement in his own behalf

12.  On 7 February 1973, his immediate commander recommended disapproval of the discharge action.  He stated that due to the seriousness of the additional charges that have arisen since the applicant's confinement, he felt that to would be detrimental to the command if the applicant were to be allowed to separate without facing a court-martial. 

13.  On 17 May 1973, his intermediate commander also recommended disapproval of the discharge action.  He stated that it was evident by the applicant's personal conduct and the seriousness of the charges  (possession of heroin, possession of narcotic paraphernalia, and numerous counts of theft) that the applicant had no respect for authority, the law, or the rights of other individuals.  He had shown contempt and disregard to the law and allowing him to be released from the Army regardless of the characterization of service, without facing the charges by trial of a court-martial would be extremely detrimental to the discipline and morale of the command. 

14.  On 18 May 1973, the applicant's senior commander recommended trial by a general court-martial empowered to adjudge a bad conduct or a dishonorable discharge.  He recommended disapproval of the discharge action and opined that anything less than trial by a court-martial would be a grave injustice to the Soldiers in the command. 

15.  On 30 May 1973, following a legal review for legal sufficiency, the separation authority considered the separation packet and the recommendations by the chain of command.  The separation authority approved the applicant's voluntary request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed that he be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate.  Accordingly, the applicant was discharged on 19 July 1973. 

16.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged for the good of the service in lieu of trial by court-martial with an undesirable discharge.  He completed a total of 2 years, 1 month, and 14 days of creditable active military service during this period of service and he had 151 days of lost time.  He was awarded or authorized the: 

* Vietnam Service Medal with 2 bronze service stars
* Republic of Vietnam Campaign Medal
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar 

17.  On 19 November 1980, the Army Discharge Review Board denied his petition for an upgrade of his discharge.
18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, an undesirable discharge was considered appropriate at the time.

	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.  

19.  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." 

20.  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.

21.  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. 
22.  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.  

23.  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.

24.  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?

25.  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 causal 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 chapter 10 of Army Regulation 635-200 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.  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.

2.  With respect to his arguments: 

	a.  The Board weighed his claim of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct that resulted in his discharge.  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 undesirable discharge.

	b.  Contrary to his arguments that the discharge was given to him because of his PTSD and the mishandling of [his] mental condition, the evidence of record clearly shows the discharge was given to him because he voluntarily requested it in lieu of trial by a court-martial.  He could have elected trial by the court-martial if he believed he had extenuating circumstances. 

	c.  Contrary to his argument that the behavior he exhibited that led to his discharge was due to his documented substance abuse, the evidence of record clearly shows that in addition the drug-related charges he was also charged with multiple instances of theft. 

	d.  While it is possible that his substance abuse may be caused by the horrific experiences he encountered while assigned to Can Tho Army Air Base, his multiple instances of theft appear to be premeditated.

	e.  It is possible that when he arrived at his last duty station at Fort Hood, TX, racial issues were prevalent in Texas at the time; however, racial injustices do not explain possession of drugs or theft of property.

3.  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 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)                                         AR20140018363





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ABCMR Record of Proceedings (cont)                                         AR20140018363



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