BOARD DATE:	  19 February 2015

		DOCKET NUMBER:  AR20140019224 


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 fully honorable discharge. 

2.  The applicant states, in effect, he was told he could change the characterization of his service in 6 months.  He tried twice but was denied.  He has experienced post-traumatic stress disorder (PTSD) for 40 years.  He states he is a good man and he wants to die with honor.  

3.  The applicant provides: 

* Department of Veterans Affairs (VA) Mental Health Psychiatric Assessment Note, dated 1 October 2014
* Three letters of support/character references

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 AC94-09964, dated 15 March 1995. 

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, his request warrants consideration by the Board as an exception to policy.

3.  Having had prior service in the Army National Guard, the applicant enlisted in the Regular Army on 3 December 1963 and he held military occupational specialty (MOS) 120.00 (Pioneer).

4.  He was honorably discharged on 22 December 1964 for the purpose of immediate reenlistment.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 1 year and 20 days of active service.  

5.  He reenlisted in the Regular Army on 23 December 1964.  He served in a variety of assignments, including Fort Polk, Vietnam, Fort Carson, and Fort Hood.  He was advanced to private first class (PFC)/E-3 on 23 December 1964 and to specialist four (SP4)/E-4 on 30 December 1964.

6.  On 15 August 1965, at Fort Polk, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for absenting himself from his assigned place of duty.

7.  He served in Vietnam from on or about 5 November 1965 to on or about 
14 September 1966.  He was assigned to the 168th Engineer Battalion.  He was advanced to specialist five (SP5)/E-5 on 10 September 1966

8.  Following completion of his Vietnam tour, he was assigned to Fort Polk, LA.  While there, he accepted NJP under the provisions of Article 15 of the UCMJ on/for:

* 24 August 1967, disobeying a lawful order and three specifications of wrongfully uttering worthless checks on multiple occasions; he was reduced to SP4/E-4
* 20 October 1967, failing to go to his appointed place of duty; he was reduced to pay grade E-3 (suspended)

9.  On 19 December 1967, at Fort Polk, he was convicted by a special court-martial of being absent without leave (AWOL) from 27 November to 1 December 1967 and from 2 to 13 December 1967.  The court sentenced him to confinement at hard labor for 3 months and a forfeiture of pay.  The convening authority approved his sentence on 22 December 1967.  


10.  On 27 December 1967, he was advanced to private two (PV2)/E-2.  However, on 30 March 1968, he departed his Fort Carson unit in an AWOL status and on 9 May 1968, he was dropped from the rolls as a deserter.  He was apprehended by agents of the Federal Bureau of Investigation (FBI) and returned to military control on 19 June 1968 in Groveton, TX.  The FBI report stated: 

* the applicant suffered a self-inflicted gun-shot wound, right thigh, 10 days earlier, requiring 10 stitches 
* Trinity County, TX was preparing a warrant for his arrest charging him with assault to murder on his estranged wife but would permit him to return to the military 

11.  On 1 July 1968, at Fort Hood, he was convicted by a special court-martial of being AWOL from 30 March to 21 June 1968.  The court sentenced him to hard labor without confinement for 3 months and a forfeiture of pay.  The convening authority approved his sentence on the same date. 

12.  On 6 July 1968, he departed his Fort Hood unit in an AWOL status and on 7 August 1968, he was dropped from Army rolls as a deserter.  

13.  On 3 May 1971, he again departed his unit in an AWOL status and on the same date, he was dropped from the rolls as a deserter.  He ultimately surrendered to military authorities at Fort Hood on 23 June 1975.  

14.  On 30 June 1975, his command preferred court-martial charges against him for one specification of being AWOL from 3 May 1971 to 23 June 1975.  

15.  On 30 June 1975, he consulted with legal counsel and he 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 Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  In his request for discharge he indicated or understood:

* he was making the request of his own free will and he had not been subjected to any coercion by anyone
* that if his discharge request were approved, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate
* that if such discharge were approved, he could be deprived of many or all Army benefits
* he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws

16.  On 18 July 1975, subsequent to a legal review by a military attorney and consistent with the chain of command recommendations, the separation authority (a lieutenant general) approved the applicant's request for discharge in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, and directed the issuance of an Undesirable Discharge Certificate and reduction to private/E-1, if applicable.

17.  He was accordingly discharged on 28 July 1975.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service-in lieu of trial by court-martial with a character of service of under other than honorable conditions and issuance of an Undesirable Discharge Certificate.  This form confirms he completed 3 years, 4 months, and 
3 days of active service during this period and he had 2,648 days of lost time.

18.  In September 1976 and March 1984, the Army Discharge Review Board reviewed his discharge and in each case found it proper and equitable and denied his request for an upgrade.  

19.  On 15 March 1995, the ABCMR also reviewed his discharge and denied his request for an upgrade. 

20.  He provides: 

	a.  VA Mental Health Psychiatric Assessment Note, dated 1 October 2014, showing he had the service-connected disabilities of depression, irritable mood, nightmares about Vietnam, intrusive thoughts about Vietnam, anger dyscontrol, hyper vigilance, exaggerated startle reflex, avoidance, and trouble sleeping.  His diagnosis based on the Diagnostic and Statistical Manual of Mental Disorders Fifth Revision (DSM-5) is that of PTSD and adjustment disorder. 

	b.  Three letters of support from individuals who described him as a man of integrity who is involved in the community and the church.  

21.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.

	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.  

22.  PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster.  The 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." 

23.  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.

24.  The 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. 
25.  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.  

26.  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 under other than honorable conditions 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.

27.  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

28.  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 under other than honorable conditions 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 under other than honorable conditions.  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 was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, 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.  

2.  The applicant's service in Vietnam is noted.  The Board wants him and all others concerned to know that its action in no way diminishes the sacrifices made by him in service to our Nation.  He and all Americans should be justifiably proud of his service in arms.  The Board also noted the circumstances at the time, including the conditions of the war.  However, unlike the thousands of Vietnam service members who experienced similar circumstances but served honorably and completed their military service, the applicant chose to go AWOL. 

3.  The applicant chose to go AWOL, on at least five different occasions.  When he ultimately returned to military control and court-martial charges were preferred against him, he could have elected trial by a court-martial if he felt he was innocent of the charges or if he felt he had any medical conditions that caused him to go AWOL.  

4.  Nevertheless, at the time of the applicant's discharge, PTSD was largely unrecognized by the medical community and DOD.  However, both the medical community and DOD now have a more thorough understanding of PTSD and its potential to serve as a causative factor in a Soldier's misconduct when the condition is not diagnosed and treated in a timely fashion.  Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible re-characterization of their overall service.

5.  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.  Although his misconduct began prior to even arriving in Vietnam, it became more serious after his return from Vietnam.  Years later and subsequent to his Vietnam experiences, medical evidence shows he was diagnosed with PTSD by a competent mental health professional.  Therefore, it is reasonable to believe the applicant's PTSD condition existed at the time of discharge. 

6.  It is concluded that the PTSD 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 28 July 1975.

7.  He is not entitled to an honorable discharge because an honorable discharge is a separation with honor and 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 meritorious.  Based on his extensive history of AWOL, NJP, and court-martial convictions, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  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 amendment of the ABCMR’s decision in Docket Number AC94-09964, dated 15 March 1995.  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 28 July 1975 to show his characterization of service as "General, Under Honorable Conditions" and his rank/grade as PV2/E-2 with an effective date of 28 July 1975.

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 changing the 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)                                         AR20140019224



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ABCMR Record of Proceedings (cont)                                         AR20140019224



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