IN THE CASE OF:	  

		BOARD DATE:	  24 February 2015

		DOCKET NUMBER:  AR20140019061 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of his earlier request for an upgrade of his under other than honorable conditions discharge to a general discharge. 

2.  The applicant states due to mental and physical disabilities, which were identified in the medical records, he was unable to successfully complete his term of service.  His disabilities included schizophrenia-paranoid type, intermittent explosive disorder, bipolar disorder, post-traumatic stress disorder (PTSD), and chronic low back pain due to herniated disc.

3.  The applicant provides: 

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Certification of Military Service
* Medical statement, dated 30 March 1968
* Chronological Record of Medical Care, dated July through October 1970
* Narrative Summary, dated 13 July and 28 August 1970
* DA Form 3349 (Physical Profile), dated 13 and 31 July 1970
* DA Form 8-275-2 (Clinical Record Cover Sheet)
* Psychiatric Certificate, dated 13 August 1971
* Medical diagnosis, dated 13 December 2012
* Congressional correspondence
* Medical document, dated 25 September 2013
* Orthopedic evaluation, dated 25 October 2013

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, the applicant's under other than honorable conditions discharge be upgraded to a general discharge. 

2.  Counsel states the applicant is easily confused and misunderstood.

3.  Counsel does not provide any evidence. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120011418, dated 20 December 2012. 

2.  The applicant does not meet the criteria for a request for reconsideration because his request was not received within 1 year of the Board's original decision.  However, in view of the Secretary of Defense's Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming PTSD, the issue pertaining to PTSD only warrants consideration by the Board as an exception to policy.  Other medical issues raised by the applicant are not subject to reconsideration under the Secretary of Defense's Guidance.

3.  The applicant's records show he was inducted into the Army of the United States on 9 July 1968 and he held military occupational specialty (MOS) 94B (Cook). 

4.  On 5 November 1968, while in training at Fort Lee, VA, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty and disobeying a lawful order. 

5.  On 28 December 1968, he departed the Overseas Replacement Station, Oakland, CA, in an absent without leave (AWOL) status and on 8 February 1969, he was dropped from the Army rolls as a deserter.  He ultimately returned to military control on 23 November 1969.

6.  Following his return from deserter status, he was placed in pre-trial confinement pending disposition of his case. 

7.  On 10 December 1969, he was convicted by a special court-martial of one specification of AWOL from 28 December 1968 to 23 November 1969.  The court sentenced him to confinement at hard labor for 5 months, a forfeiture of pay, and a reduction to the lowest enlisted grade.  The convening authority approved the sentence on 22 December 1969. 

8.  He was released from confinement on 14 April 1970.  However, on 30 April 1970, he again departed his unit in an AWOL status.  He returned to military control at the Overseas Replacement Station, Fort Lewis, WA on 6 May 1970. 

9.  On 6 May 1970, at the Overseas Replacement Station, Fort Lewis, WA, he accepted NJP under the provisions of Article 15 of the UCMJ for being absent without leave (AWOL).

10.  He served in Vietnam from 9 May 1970 to 21 July 1970.  He was assigned to 1st Battalion, 7th Cavalry, 1st Cavalry Division. 

11.  He departed Vietnam in a patient status on or about 22 July 1970.  He was assigned to Fort Gordon, GA.  He was subsequently reassigned to Medical Holding Company, Madigan General Hospital, Fort Lewis. 

12.  On 26 August 1970, at Fort Lewis, he accepted NJP under the provisions of Article 15 of the UCMJ for being absent from his appointed place of duty and for being disrespectful to his commissioned and noncommissioned officers.  He was reduced to the lowest enlisted grade. 

13.  On 14 January 1971, at Fort Lewis, he accepted NJP under the provisions of Article 15 of the UCMJ for disobeying a lawful order.  His punishment consisted, in part, of a reduction to E-2 (suspended).

14.  On 1 April 1971, at Fort Lewis, he accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty.

15.  On 28 June 1971, at Fort Lewis, he accepted NJP under the provisions of Article 15 of the UCMJ for twice failing to go at the time prescribed to his appointed place of duty.  His punishment consisted, in part, of a reduction to E-2 (suspended).

16.  On 22 July 1971, at Fort Lewis, he accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty.

17.  On 6 August 1971, he was convicted by a summary court-martial of five specifications of failing to go at the time prescribed to his appointed place of duty and one specification of disobeying a lawful order.  The court sentenced him to confinement at hard labor for 15 days, a forfeiture of pay, and reduction to E-1.  The convening authority approved his sentence on the same date. 

18.  On 13 August 1971, he underwent a psychiatric evaluation that resulted in a diagnosis of passive aggressive personality, chronic, moderate, manifested by conflict with authority.  He had a long history of dislike for authority.  His stress was associated with routine military duties, existed prior to service (EPTS). 

19.  The complete facts and circumstances of his discharge processing are not available for review with this case.  However, his records contain:

	a.  Special Orders Number 251, issued by Headquarters, U.S. Army Personnel Center, Fort Lewis, WA, on 8 September 1971, ordering his discharge from active duty under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability), by reason of unfitness with an Undesirable Discharge Certificate, effective 8 September 1971. 

	b.  A duly-constituted DD Form 214 that shows he was discharged on 8 September 1971 under the provisions of Army Regulation 635-212 by reason of unfitness with a character of service of under other than honorable conditions. He was assigned Separation Program Number 386 (established pattern of shirking).  He completed 1 year, 10 months, and 2 days of total active service and he had 478 days of lost time.

20.  On 14 May 1982, the Army Discharge Review Board (ADRB) reviewed his discharge but found it proper and equitable.  Therefore, the ADRB denied his request for an upgrade of his discharge.

21.  On 20 December 2012, the ABCMR considered his request for an upgrade of his discharge.  He contended that he was not found physically and psychologically fit to enter the service in the first place and that he became a heroin addict while in service.  The Board did not find sufficient evidence and denied his request.

22.  He provides, in pertinent part: 

	a.  A medical statement, dated 30 March 1968, wherein the doctor stated the applicant had great difficulty in controlling his temper, especially in relationship to authority figures.  He had serious difficulty adjusting to the military service.    
	b.  Chronological Record of Medical Care, dated 6 August 1971, that shows the entry "heroin addict and in withdrawal." 

	c.  Narrative Summary, dated 11 August 1971 that shows a diagnosis of personality disorder, passive aggressive type. 

	d.  Clinical Record Cover Sheet, dated 28 August 1970, which shows a diagnosis of personality disorder, passive aggressive type, Line of Duty: NO, EPTS. 

	e.  Medical document, dated 13 December 2012, wherein a medical doctor states the applicant does have schizophrenia, bipolar disorder, and PTSD. 

	f.  Medical document, dated 6 June 2013, wherein a nurse states the applicant is diagnosed with schizophrenia, paranoid type and intermittent explosive disorder.  He has memory problems and hallucinations, both auditory and visual. 

	g.  Medical document, dated 25 September 2013, wherein a doctor states the applicant should continue attending Alcoholics Anonymous meetings. 

23.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts.  This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

24.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic policy for the separation of enlisted personnel.  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.  

25.  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." 

26.  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.

27.  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. 

28.  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.  

29.  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.

30.  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?

31.  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 is void of the facts and circumstances that led to his discharge.  However, his record contains a duly-constituted DD Form 214 that confirm the applicant's discharge in accordance with Army Regulation 635-212 by reason of unfitness (established pattern of shirking) with an under other than honorable conditions characterization of service.

2.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He has provided no information that would indicate the contrary.

3.  At the time of the applicant's discharge, PTSD (and many other behavioral health issues) 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.

4.  A review of the applicant's record and the evidence that he provided shows that he may have been subjected to the ordeals of war while serving in Vietnam.  Although his misconduct began prior to even arriving in Vietnam, it became more serious after his return from Vietnam.  It appears his EPTS condition was a mitigating factor in his extensive history of misconduct.  Medical evidence during his military service clearly shows a history of passive-aggressive personality which did not respond to medications.  Years later, he continues to have a diagnosis that is consistent with that he had during his military service.  

5.  It is concluded that the personality disorder was a causative factor in the misconduct that led to his discharge.  After carefully weighing that fact against the severity of the applicant's misconduct, there is sufficient mitigating evidence to warrant upgrading the characterization of the applicant's service to a general discharge under honorable conditions and restoring his rank/grade to PV2/E-2 (the last rank/grade he held at the time of his discharge) with an effective date of 8 September 1971. 


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 amendment of the ABCMR’s decision in Docket Number AR20120011418, dated 20 December 2012.  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 8 September 1971 to show his characterization of service as "General, Under Honorable Conditions" and his rank/grade as PV2/E-2 with an effective date of 8 September 1971.




      _______ _   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)                                         AR20140019061



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ABCMR Record of Proceedings (cont)                                         AR20140019061



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