BOARD DATE:	  26 February 2015

		DOCKET NUMBER:  AR20140018918 


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).

2.  The applicant states, in effect, that he has been diagnosed with Post-Traumatic Stress Disorder (PTSD) and contends that PTSD was the catalyst for his misconduct.  Although he had some minor disciplinary infractions, he was a good Soldier who was subjected to numerous challenges and subjected to the harsh realities of combat.  He routinely volunteered for hazardous duties, participated in several firefights and for awhile they were hit with rockets, mortars, and snipers.  Shrapnel would fly by his head so close that he could hear a whooshing sound by his ears.  He thought that he was a "goner" nearly every day.  Although he was seen by military doctors on more than one occasion, he is of the opinion that he was misdiagnosed at the time and contends that if he had been properly diagnosed and treated, he would not have been involuntarily discharged.

3.  The applicant provides:

* seven-page self-authored statement, dated 17 July 2014
* seven photographs
* undated transcription of a Direct Examination of First Lieutenant (1LT) B
* a statement from a former fellow Soldier
* a description of the Maximum Security Compound Facility, Long Bihn South Vietnam, 26 November 1967 - 4 April 1968
* Certificate by a psychiatrist at the Mental Hygiene Consultation Service, Fort Dix, NJ, dated 25 February 1970
* two Discharge Summaries from Department of Veterans Affairs (VA) hospitals located in Montana, dated 18 May 2006 and 28 July 2008
* Progress Notes from his medical record in the VA Montana Health Care System, dated 17 September 2009
* letter from a Licensed Clinical Professional Counselor, dated 31 August 2004
* letter from a former PTSD counselor, dated 6 January 2010
* undated letter from a Staff Psychiatrist, VA Great Falls Community Based Outpatient Clinic (CBOC), Great Falls, Montana
* Washington Times article titled "Military misconduct may be sign of PTSD," dated 12 January 2010
* four letters

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 27 April 1966.  At the completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 36C (Lineman) and assigned to Korea as his first duty station.  He was honorably discharged on 26 April 1967 for the purpose of immediate reenlistment.

3.  On 27 April 1967, while serving in Korea, the applicant reenlisted in the RA.  On 28 April 1967, the applicant was reclassified to MOS 05C (Radio Teletype Operator).  The applicant's unit was sent to Vietnam and he served there from 30 July 1967 to 2 March 1969.  The highest rank/pay grade he attained was specialist four (SP4)/E-4.  However, he held the rank/pay grade of private (PV1)/E-1 at the time of his separation.

4.  On 28 May 1968, the applicant departed his unit in an absent without leave (AWOL) status.  He was dropped from the rolls as a deserter on 11 June 1968 and remained so absent until he was returned to military control on 12 July 1968.

5.  On 19 July 1968, nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) was imposed against the applicant for being AWOL from 11 June until 12 July 1968.  His punishment included reduction in rank/pay grade from SP4/E-4 to private first class 
(PFC)/E-3.

6.  The applicant was convicted by a general court-martial on 14 February 1969 for unlawfully killing five Vietnamese citizens at Pleiku Province, Republic of Vietnam, on 24 December 1968, by negligently causing the 2 1/2 ton truck in which they were passengers to overturn.  He was sentenced to be confined at hard labor for one year and to forfeit $60 pay per month for 12 months.  He was subsequently reduced to the rank/pay grade of private (PV1)/E-1 and transferred to the U.S. Disciplinary Barracks (USDB), Fort Leavenworth, KS, for the remainder of his confinement.

7.  Following his release from the USDB, the applicant was reassigned to the 338th Transportation Company, Fort Meade, MD, and reclassified to MOS 64B (Heavy Vehicle Driver).

8.  On 4 February 1970, the applicant was convicted by a special court-martial for being AWOL from 24 September 1969 until he surrendered on or about 9 January 1970.  He was sentenced to be confined at hard labor for 2 months at the Post Stockade, Fort Dix, NJ.

9.  He provides a psychiatric evaluation, dated 25 February 1970, that shows he was diagnosed with an emotionally unstable personality, chronic, severe; manifested by impulsive behavior and poor judgment.  Stress: moderate.  Military duty in a combat zone.  Predisposition: moderate.  Prior history of similar difficulties.  Impairment for further military duty: marked.  Line of duty:  No, existed prior to service.  Prior to entry into the military he left school in the ninth grade because of family problems.  On interview, he spoke clearly and coherently.  There was no evidence of a thinking disorder or other signs of psychosis.  He was, at the time, so far free from mental defect, disease, or derangement as to be able, concerning the particular acts charged, both to distinguish right from wrong and to adhere to the right.  In connection with regulatory standards, there were no mental or physical defects warranting admission to, or final disposition through, medical channels.  He was found mentally responsible and he was psychiatrically cleared for any action deemed 

appropriate by his command.  The certificate states:

* he is presently serving a 2-month sentence for a 3 1/2 month AWOL offense from which he surrendered
* his military record also included two Article 15s for AWOL offenses and a general court-martial conviction for negligent homicide resulting from a truck accident in Vietnam
* he received psychiatric attention in Vietnam when he opened up with an M-16 inside a tent in a noncombat situation

10.  On 16 March 1970, the applicant was recommended for discharge under the provisions of Army Regulation 635-212 (Personnel Separations-Discharge-Unfitness and Unsuitability) by reason of unfitness, due to frequent involvement of a discreditable nature with military or civil authorities.  It was also recommended that he be furnished an undesirable discharge certificate.  It was determined that his behavior was not due to an incapacity to become a satisfactory Soldier within the meaning of unsuitability and it was opined that there appeared to be no grounds for other disposition of the applicant.

11.  The appropriate authority approved the recommendation for discharge on 27 March 1970 and he directed the issuance of an Undesirable Discharge Certificate.

12.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that on 31 August 1971, he was discharged under the provisions of Army Regulation 635-212 with a separation program number (SPN) of 28B, indicating discharge for unfitness due to involvement in frequent incidents of a discreditable nature with civil or military authorities.  He completed 2 years, 9 months, and 29 days of total active service with 397 days of time lost.

13.  There is no evidence in the available record that shows the applicant was diagnosed with PTSD prior to his discharge.

14.  On 29 November 1984, the Army Discharge Review Board informed the applicant that after careful consideration of his military records and all other available evidence, it had been determined that he was properly and equitably discharged.  As a result, his request for a change in the character and/or reason of his discharge had been denied.

15.  The applicant provides a seven-page self-authored statement; seven photographs; undated transcription of a Direct Examination of First Lieutenant (1LT) B; a statement from a former fellow Soldier; and a description of the Maximum Security Compound Facility, Long Bihn South Vietnam, 26 November 1967 - 4 April 1968; in order to provide an overview of his period of military service and a detailed explanation of the circumstances surrounding the accident that resulted in the death of five Vietnamese citizens.  His major points of note include:

	a.  he was assigned to Korea in 1966 and he received very good ratings.  He reenlisted and volunteered for Vietnam.  They were under constant rocket attacks by the enemy and when the enemy would hit their ammunition dump he could hear shrapnel flying right by his ears.  He had hallucinations and he was sent to the doctor.  The doctor said nothing was wrong with him.

	b.  while home on leave from Vietnam he saw his cousin's body, who was killed in Vietnam.  Upon returning to Vietnam he felt very different about himself and he did not want to return home.

	c.  on 24 December 1968, after drinking at a unit Christmas party, he was told by his noncommissioned officer-in-charge to drive some civilians back to Pleiku.  While driving the civilians he was involved in a crash which resulted in 25 passengers being thrown from the rear of the truck and the death of five Vietnamese citizens.  When he returned to his unit they said he took the truck without permission.  At his Article 32 hearing in Vietnam the psychiatrist testified he saw him and he was released to duty.

	d.  he received a general court-martial and he was sentenced to 1 year and he spent 3 months in the stockade in maximum security.  He contends it was not fun being under attack and not being able to get out of his cell fast enough.  He was then sent to Fort Leavenworth, KS for the remainder of his sentence, which was reduced to 6 months.

	e.  he stayed there for about 2 months and was given partial pay and sent home on leave.  He was then stationed at Fort Meade, MD where he did not receive pay or even partial pay because finance told him they did not have his pay records.  For 2 months he had to rely on money from home that was sparse and he got tired of having no money, so he went absent without leave (AWOL).  He then turned himself in and went to Fort Dix where he received his discharge.

	f.  his mental hygiene consultation, dated 25 February 1970, states "DIAGNOSIS:  Emotionally unstable personality, chronic, severe; manifested by impulsive behavior and poor judgment.  Stress: Moderate.  Military duty in a combat zone.  Predisposition: Moderate.  Prior history of similar difficulties.  Impairment for future military duty: Marked LOD (line of duty): No EPTS (existed prior to service)."

	g.  shortly after arriving in Vietnam he realized that he had mental problems, but at that time he did not understand that the symptoms he was having was because of PTSD directly related to his time spent in the Army.  These mental problems led up to his actions in Vietnam, the truck accident, and the rest of his time in service and until this present day.  After his release from the Army, he has suffered severely due to his PTSD and other medical problems that are related to his time in the Army.

16.  He further provides:

	a.  two Discharge Summaries from VA hospitals located in Montana, dated 18 May 2006 and 28 July 2008 and Progress Notes from his medical record in the VA Montana Health Care System, dated 17 September 2009, which show the applicant was diagnosed with (among other things) chronic PTSD stemming from both sexual abuse as a child and as a result of his military combat service in Vietnam.  The specific traumatic events and symptoms listed include:

* being molested as a child by a male friend of his step-brother and his parents not doing anything about it
* his involvement in the vehicle accident that resulted in the death of people
* his involvement in numerous fire fights
* being left in his cell in Vietnam while the jail was under attack
* the suicidal death of a close friend from Vietnam
* difficulty sleeping
* recurring distressing nightmares
* depression
* mood swings with feelings of guilt, anger and hopelessness
* increased arousal, easily excited and quick to anger
* persistent avoidance and self-isolation
* alcoholism
* low self-esteem
* bad memories triggered by the smell of diesel fuel, the sound of helicopters and fireworks, and seeing Asian people

	b.  letters from a Licensed Clinical Professional Counselor, a former PTSD counselor, and a Staff Psychiatrist who all state that the applicant clearly suffers from service-connected PTSD and that they have provided him treatment beginning as early as 1997.



	c.  a Washington Times article titled "Military misconduct may be sign of PTSD," dated 12 January 2010, which documents an anonymous Navy doctor's warning to colleagues that "The service may be discharging Soldiers for misconduct when in fact they are merely displaying symptoms of PTSD."

17.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a provided that members involved in frequent incidents of a discreditable nature with civil or military authorities was subject to separation for unfitness.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

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 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 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.

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 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 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.  The following experiences are of particular note:

* his involvement in the vehicle accident that resulted in the death of people
* his involvement in numerous fire fights
* being left in his cell in Vietnam while the jail was under attack
* the suicidal death of a close friend from Vietnam

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 frequently and for an extensive period of time appears to have been events that resulted from lapses in judgment and persistent avoidance of situations rather than dealing with them.

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 18 September 1969.

BOARD VOTE:

___X_____  ___X_____  _X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for 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 3 April 1970 to show the characterization of service as "General, Under Honorable Conditions" and his rank/grade as PFC/E-3 with an effective date of 18 September 1969.



      _________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)                                         AR20140018918





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140018918



13


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1