IN THE CASE OF:	  

		BOARD DATE:	  24 February 2015

		DOCKET NUMBER:  AR20140018383 


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 he was suffering from Post-Traumatic Stress Disorder (PTSD) while serving in the Republic of Vietnam and during the entire period of his absence without leave (AWOL).  He was diagnosed with PTSD and still suffers from it.  He contends that PTSD was the catalyst for his misconduct.

3.  The applicant provides 25 documents as listed on the Table of Contents included with his application.

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 on 12 February 1969.  Upon completion of initial entry training, he was awarded military occupational specialty 11B (Light Weapons Infantryman).  He was subsequently deployed and served 3 months in Vietnam.  He was promoted to the rank/grade of private first class (PFC)/E-3 effective 24 July 1969.  On 27 October 1969, he was honorably discharged for the purpose of immediate reenlistment.

3.  He reenlisted in the Regular Army on 28 October 1969 for a period of 3 years. 

4.  The applicant was reported AWOL from 21st Adjutant General Replacement Station, Frankfurt Germany, effective 25 May 1970.

5.  His record contains and he also provides, a Department of Veterans Affairs (VA) Form 10-1000 (Hospital Summary) which shows he was hospitalized at the VA Hospital located in North Little Rock, AR, from 19 August to 25 August 1970.  The physician noted, in part, that the applicant's chief complaint was of acute anxiety and desire to carry a gun to feel secure.  Collateral information revealed the applicant was well known to the local authorities as a trouble-maker with arrests for drunkenness, disturbing the peace and malicious mischief.  The applicant, at that time, had recently cut the tires of a sheriff's office car and was released to the Veterans Hospital and the charge dropped.  It appears as the applicant sought psychiatric treatment only as a way of avoiding the criminal charges against him.  The applicant was discharged from the hospital with a diagnosis of antisocial personality after he was extremely uncooperative and refused to speak.  It appeared the applicant desired hospitalization only to avoid criminal charges and then wanted release from the hospital as soon as possible to continue a leave before reassignment.  Patient is considered competent.

6.  His record contains a DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence) which shows he surrendered to military authorities at Fort Sill, OK, on 22 January 1974.

7.  His record contains a DD Form 458 (Charge Sheet), dated 25 January 1974, which shows charges were preferred against the applicant for absenting himself from Headquarters and Headquarters Detachment, 21st Adjutant General Replacement Station, Frankfurt Germany, without authority and with intent to remain away from there permanently, and remaining so absent in desertion until on or about 22 January 1974 in violation of Article 86, Uniform Code of Military Justice (UCMJ), for a period of 1,215 days.

8.  His record contains a Standard Form 88 (Report of Medical Examination), dated 25 January 1974, which shows the applicant underwent medical examination during which it was noted that he seemed confused and very jumpy. The examining physician opined that he had no defects or disorders except for a thought disorder for which he needed evaluation.

9.  His record contains a Standard Form 513 (Clinical Record - Consultation Sheet), dated 25 January 1974, which shows the applicant underwent command referred mental evaluation during which he reported that he was "shell shocked" in Vietnam in 1970 and taken for treatment at a VA hospital in Little Rock, AR.  He was apparently there for 3 weeks and released.  The applicant stated he went back home to wait for orders and never got any.  He had recently contacted someone near his home and was returned to Fort Sill.  He declared AWOL for all of his time and was going to request an administrative discharge.  He had problems with insomnia, illusions, no evidence of psychosis, severe depression and anxiety.  The examining physician opined that he met psychiatric retention standards and determined that he was psychiatrically cleared for an administrative or disciplinary action.

10.  On 29 January 1974, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge and the issuance of an Undesirable Discharge Certificate, and the procedures and rights that were available to him.

11.  Subsequent to receiving this legal counsel and without coercion, 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.  He stated that he came in the Army to be a truck driver, but was trained to be an 11B instead and then sent straight to Vietnam.  When he returned from Vietnam he suffered from shell shock and went to a VA hospital in Little Rock, AR for treatment.  When he returned home he reflected on all the things he had done and sometimes it seemed like he was seeing them all over again.  He recalled times when they would go into the field and be subjected to night fire for three or five nights.  When it was over, they would have to conduct a body count in order to submit paperwork on how many North Vietnamese Army soldiers they had killed.  Sometimes the bodies turned black or would burst open.  One thing that particularly upset him was when they would get a 10-gallon can of diesel fuel and burn the body.  He had no disciplinary actions against him so he was asked to reenlist in order to attend training and become a machine operator.  Following his discharge he wanted to attend Ryer Jauck Driver School.

12.  In this request for discharge he acknowledged he understood if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

13.  On 13 February 1974, the separation authority approved his request for voluntary discharge 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 Certificate and reduction to the lowest enlisted grade.  Accordingly, he was reduced from PFC/E-3 to private/E-1 and discharged on 15 February 1974.

14.  His DD Form 214 confirms he was discharged on 15 February 1974 in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial and that he received an under other than honorable conditions characterization of service.  He completed 10 months and 27 days of net active service during this period of service and was credited with 1,238 days lost time.

15.  On 6 February 1980, the Army Discharge Review Board (ADRB) notified the applicant that after careful consideration of his military records and all other available evidence, the ADRB determined that he was properly and equitably discharged.  Accordingly, his request for a change in the type and nature of his discharge was denied.

16.  The applicant provides, in part, the following documents:

	a.  A letter rendered by an Assistant Clinical Professor of Psychiatry at the Medical College of Wisconsin on Milwaukee County Mental Health Complex letterhead and dated 23 July 1986.  The author stated he had seen the applicant on six occasions since December of 1985.  Since the time of his initial evaluation he had been convinced that the applicant met the diagnostic criteria for PTSD as outlined in the Diagnostic and Statistical Manual of Mental Disorders (DSM), Third Edition of the American Psychiatric Association (APA).  Briefly, the diagnosis of PTSD replaces prior diagnostic categories of Combat Neurosis, and/or shell shock.  The applicant met the criteria for this diagnosis by exhibiting the following symptoms.

		(1)  He had intrusive thoughts about his combat experience and re-experiences the events in vivid dreams.  During times of anxiety/stress he will reach out for his weapon as if back in a combat situation.

		(2)  He describes feeling estranged from others, who he feels cannot understand his feelings.  He additionally appears to exhibit constricted affect.
		(3)  He clearly describes an exaggerated startle response, and increased vigilance scanning the environment for signs of danger.  He experiences insomnia when off of medication and additionally experiences increased anxiety when combat memories are reawakened.

	b.  Two letters rendered by a psychiatrist at Milwaukee Health Services Incorporated, dated 11 March and 26 April 1999.  The doctor states the applicant had been under his direct psychiatric care since 22 May 1998 and that he was diagnosed, in part, with PTSD.  The psychiatrist opined that the applicant met the criteria for PTSD as listed in the APA DSM, Fourth Edition.  He served in Vietnam starting in July 1969 as an infantryman for 4 months.  He states that he witnessed fellow Soldiers severely injured and killed.  "I was a point man."  He reports a close buddy was shot to death while on bunker duty.  He reports that it is an impossible task for him to remove these memories from his mind.  Currently, he complains of intrusive thoughts of combat, insomnia, irritability with love ones, hypervigillance "like I am wired," exaggerated startle response "if someone slammed a door I was on the floor," and recurring distressing dreams.  A review of his military record shows that he was diagnosed as having antisocial personality on 25 August 1970.  This suggests that his problems at the time may have been related to the current PTSD diagnosis.

	c.  A Milwaukee County Mental Health Complex - Discharge Summary which show he was hospitalized from 22 September to 1 October 1986 for treatment for depression associated with his long history of PTSD.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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, a discharge UOTHC is normally considered appropriate.  At the time, an undesirable discharge was normally given.

	b.  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.
	c.  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.

18.  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." 

19.  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.

20.  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. 

21.  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.

22.  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.

23.  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?

24.  Although the DoD acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had an undiagnosed condition of PTSD at the time of their discharge, it is presumed that they were properly discharged based upon the evidence that was available at the time.  Conditions documented in the record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge.  In cases in which PTSD or PTSD-related conditions may be reasonably determined to have existed at the time of discharge; those conditions will be considered potential mitigating factors in the misconduct that caused the UOTHC characterization of service.  Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of UOTHC.  Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct.  PTSD is not a likely cause of premeditated misconduct.  Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causeal relationship of symptoms to the misconduct.

DISCUSSION AND CONCLUSIONS:

1.  The applicant'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 Vietnam.  Of particular note are his experiences of:

* witnessing fellow Soldiers severely injured and killed
* serving as "a point man" on patrols
* witnessing a close buddy be shot to death while on bunker duty

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 and restoring his rank/grade to PFC/E-3 with an effective date of 24 July 1969.

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 12 February 1974 to show the characterization of service as "General, Under Honorable Conditions" and restoring his rank/grade to PFC/E-3 with an effective date of 24 July 1969.

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)                                         AR20140018383





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140018383



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1