IN THE CASE OF:	  

		BOARD DATE:	  27 January 2015

		DOCKET NUMBER:  AR20140019390 


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 bad conduct discharge (BCD) (under other than honorable conditions discharge) to a general discharge. 

2.  The applicant states, in effect:

* he served in Vietnam and experienced combat
* his first daughter was born while he was in Vietnam
* the incident which resulted in his court-martial and subsequent discharge occurred directly after his first combat experience
* as a result of his service, he now suffers from non-Hodgkins lymphoma, heart disease, and post-traumatic stress disorder (PTSD)
* he recently learned he could apply for an upgrade

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* birth certificate
* self-authored statement

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 A83-02527 on 20 July 1983.

2.  The applicant does not meet the two-tiered criteria for a request for reconsideration in that his request is neither received within one year of the original Board's decision nor does it contain any new evidence.  However, in view of the recent Secretary of Defense guidance regarding behavioral health issues of Vietnam veterans, his request will be considered by the Board. 

3.  The applicant's records show he was inducted into the Army of the United States on 20 August 1968, and he held military occupational specialty (MOS) 11B (Light Weapons Infantryman).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.

4.  He served in Vietnam from 16 January 1969 to 9 July 1969, where he was assigned to 2nd Battalion, 8th Cavalry Regiment from on or about 30 January 1969 to 9 July 1969, performing duties as a light weapons infantryman.

5.  While in Vietnam, on 5 April 1969, he was placed in pre-trial confinement while pending a court-martial for alleged violations of the Uniform Code of Military Justice (UCMJ).  On 2 June 1969, he was convicted of one specification of willfully disobeying a lawful order from a superior commissioned officer to get his equipment, go to the log pad, and go to the field for duty at Landing Zone Andy, in Vietnam.  His approved sentence was a BCD, forfeiture of $50.00 per month for 12 months, and confinement at hard labor for 12 months.

6.  His sentence was approved in General Court-Martial Order (GCMO) Number 35, issued by Headquarters, 1st Cavalry Division (Airmobile), dated 21 October 1969.  Pending appellate review, he was sent to be confined at the U.S. Army Disciplinary Barracks, Fort Leavenworth, KS.  

7.  As shown in GCMO Number 282, issued by Headquarters, U.S. Disciplinary Barracks, dated 18 March 1970, he completed the term of his confinement and was reassigned to Fort Riley, KS with a reporting date of 3 April 1970.  He was further assigned to the 1st Supply and Transportation Battalion with duty as a 64A (Light Truck Driver).

8.  On 10 July 1970, the U.S. Army Court of Military Review completed its appellate findings and affirmed the findings of guilty as well as the sentence.  

9.  GCMO Number 37, issued by Headquarters, 1st Infantry Division (Mechanized) and Fort Riley, dated 10 July 1970, affirmed all appellate requirements had been complied with and directed the implementation of the remaining portion of the sentence.  Based on this order, the remainder of the forfeiture of pay and the BCD were duly executed.  On 31 July 1970, the applicant was discharged accordingly.

10.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-204 (Personnel Separations - Dishonorable and Bad-Conduct Discharge) with an under other than honorable conditions characterization of service.  This form confirms he completed 11 months and 24 days of net service with 347 days of time lost due to confinement.

11.  He filed an application with the ABCMR on 10 December 1982.  He based his request on the following:

* by the time of his application, he had carried the BCD for 12 years and felt it was a gross injustice
* he had had a good record up to the point when the incident occurred and had been willing to perform duties as a door-gunner rather than carrying a pack in the jungle
* he did not want his children to grow up thinking their father was a disgrace

12.  On 20 July 1983, the Board denied the applicant's request for upgrade of his discharge citing insufficient evidence.

13.  His separation physical is available in his records.  No behavioral health issues are identified.

14.  The applicant provides a self-authored statement in which he essentially states:

* he was married on 25 May 1967 and drafted on 20 August 1968 at the age of 23
* he arrived in Vietnam in January 1969 and was assigned to the 1st Cavalry Division
* spent a couple of weeks in the field before going to the rear area, pulled perimeter guard for 5 days, then went back out on patrol
* he was in at least a few firefights and believes he was exposed to Agent Orange
* when he returned to the rear area, the approached a captain (CPT) about changing jobs either to [loading helicopters] on the log pad or being a door-gunner
* he mentioned to the CPT he was having back pain from carrying the required gear
* the CPT refused to consider the applicant's request, there was a confrontation
* the CPT called him a coward and said he would make sure the applicant was court-martialed out of the Army
* the applicant asked to either be transferred or to be seen by a doctor for his back, but the CPT refused
* the applicant believes he (the applicant) was under extra stress because he had recently learned he would be a father
* he experienced back pain the entire time he was in Vietnam
* he received a court-martial and was found guilty of refusing a direct order
* he was sent to Fort Leavenworth Penitentiary and, while there, worked on a chicken farm caring for about 2000 chickens; chicken never tasted the same after that
* he "got good behavior" while at Fort Leavenworth, then was sent to Fort Riley, KS to work in the motor pool
* at Fort Riley he drove trainees to rifle ranges and training grounds until he was discharged

15.  Army Regulation 635-204, in effect at the time, set forth policy and guidance for both dishonorable and bad-conduct discharges.  It stated an enlisted person will be discharged with a BCD pursuant only to an approved sentence of a general or special court-martial empowered to impose such a discharge.  

16.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction.  Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy, or instance of leniency, to moderate the severity of the punishment imposed.

17.  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."
18.  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.

19.  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)

* 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

20.  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.  

21.  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.

22.  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?

23.  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:

The applicant requests his discharge be upgraded to general under honorable conditions.  With respect to the characterization of service:

	a.  The applicant’s records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  He was given a bad conduct discharge pursuant to an approved sentence by a general court-martial empowered to adjudge such a discharge.  This type of court-martial was warranted by the gravity of the offense charged at the time.  His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.  The appellate review was completed and the affirmed sentence ordered duly executed.

	b.  All requirements of law and regulation were met and his rights were fully protected.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  

	c.  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 recharacterization of their overall service.

	d.  The applicant states he has been suffering from PTSD.  He contends the PTSD is a result of his combat experiences.  He provides no evidence, however, of a confirmed diagnosis for PTSD.  Additionally, his records are void of any evidence he suffered from a behavioral health issue while on active duty.

	e.  As a result of the foregoing, it cannot be concluded that the PTSD conditions were a causative factor in the misconduct that led to the discharge.  There is therefore no basis upon which to grant the requested relief. 
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ____x___  ____x ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AC83-02527 dated 20 July 1983.  




      ___________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)                                         AR20140019390





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ABCMR Record of Proceedings (cont)                                         AR20140019390



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