IN THE CASE OF:	   

		BOARD DATE:	  12 February 2015

		DOCKET NUMBER:  AR20140019402 


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 his under other than honorable conditions discharge be upgraded.

2.  The applicant states, in effect:

   a.  He suffered from post-traumatic stress disorder (PTSD) and the Army did not offer him a psychiatric assessment prior to issuing him the discharge.  By today’s standards, he would have received a favorable discharge.
   
   b.  The military should have offered him mental health treatment after he returned from Vietnam.  He received no medical help for his mental health conditions that were caused by the war.  He was absent without leave (AWOL) for 156 days because of stress and his mental health.  His disabilities were interfering with his daily activities and life.  He has PTSD that was caused by his military service, a medical condition that should warrant an upgraded discharge.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and 94 pages of various medical records dated between 7 January 2011 and 20 November 2014. 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 31 July 1970.  He completed basic combat training (BCT) and advanced individual training (AIT) and he was awarded military occupational specialty (MOS) 67U (CH-47 Helicopter Repairman).  He was promoted to the rank/grade of specialist four (SP4)/E-4 on 30 April 1971.

3.  He served in Vietnam as follows from:

* 7 January to 9 November 1971 with the 147th Aviation Company in duty MOS (DMOS) 67U
* 10 November to 18 December 1971 with the 13th Security Detachment in DMOS 11B (Light Weapons Infantryman) as a security guard

4.  On 24 January 1972, he was assigned to the Personnel Confinement Facility (PCF), Fort Ord, CA, in DMOS 57G (Duty Foreman) as an escort. 

5.  On 1 April 1972, he was reported as AWOL from his assigned unit.  On 7 August 1972, he returned to his assigned unit.  

6.  On 28 August 1972, he was reported as AWOL from his assigned unit and he was dropped from the rolls (DFR) as a deserter.  On 29 August 1972, he returned to his assigned unit.

7.  On 3 September 1972, he was reported as AWOL from his assigned unit and he was DFR as a deserter.  On 8 October 1972, he returned to his assigned unit.

8.  His record contains a memorandum, dated 27 December 1972, wherein a counselor with the Rehabilitation Center, Fort Ord, stated, in part:

   a.  The applicant was seen at the Rehabilitation Center on 26 December 1972 for evaluation of his drug usage.  While in Vietnam, he used marijuana daily and heroin several times a week (emphasis added).  While in Vietnam, he voluntarily participated in and completed a drug amnesty program.

	b.  After his return from Vietnam, he was assigned to the PCF and he stated he did not like guarding and escorting the prisoners.  He went AWOL in April 1972 and upon his return he applied for a chapter 10 discharge and then went AWOL again.  He did not appear to be under the influence of drugs during the interview and stated he had not used heroin since participating in the drug amnesty program in Vietnam.  He was not found to be drug dependent.

9.  His record contains a memorandum, dated 3 January 1973, wherein a social worker with the PCF, Fort Ord, stated, in part:

   a.  The applicant was presently in pre-trial confinement at the PCF pending 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.
   
   b.  He was one of six children raised by his mother and his alcoholic father who beat him and his siblings.  When he was 15 years old he was convicted on joy-riding charges, sentence to 6 years confinement, and was immediately placed on parole.  At age 17, he was sent to prison for a parole violation, spent 14 months in jail.  
   
   c.  When he was almost 21 years old, he joined the Army.  He completed BCT and AIT and was assigned to Vietnam where he served for 11 months as a helicopter mechanic and for 45 days as a security policeman.  It was while working on helicopters that he used drugs.  He volunteered for the drug amnesty program and claims to have used no drugs since then except for marijuana occasionally.
   
   d.  When he returned from Vietnam he was assigned to the PCF as a guard.  Attempts to transfer to a job in his MOS proved futile so he went AWOL in April 1972.  He went AWOL again in August 1972 and since then has worked at a good paying job as an aviation parts assemblyman.  He turned himself in to get his freedom to attempt to get his personal life settled.  He was having marital difficulties and his wife had filed for divorce.
   
   e.  He was impulsive and somewhat volatile.  He still was unable to accept much of the responsibility for his mistakes and often placed blame on external forces.  His inability to maintain interpersonal relations may have resulted from poor personal development in an insecure family situation.  He appeared to have no character or behavior disorder although disillusionment with and poor motivation for the service rendered him a poor candidate for return to duty.  It was felt the applicant and the Army would be best served if he were expeditiously discharged through administrative channels, preferably under the provisions of Army Regulation 635-200, chapter 10.

10.  His available record does not contain any medical records.

11.  On 16 January 1973, he was reduced from SP4 to the rank/grade of private (PV1)/E-1.

12.  The specific facts and circumstances surrounding his discharge processing are not available for review with this case.  However, his record contains the DD Form 214 he was issued that shows he was discharged on 24 January 1973, in the rank of PVT, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial (separation program number 246), with an under other than honorable conditions characterization of service and issued an Undesirable Discharge Certificate.  He completed 2 years and 13 days of net active service and had 162 days of lost time due to being AWOL.

13.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows the:

* National Defense Service Medal
* Marksman Marksmanship Qualification Badge with Rifle Bar
(M-16)
* Vietnam Campaign Medal
* Vietnam Service Medal
* one overseas service bar

14.  Item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) shows he received the following conduct and efficiency ratings from:

* 1 August to 3 October 1970, "excellent" ratings
* 4 October to 14 December 1970, "good" ratings
* 14 January to 9 November 1971, "good" ratings
* 10 November to 12 December 1971, "excellent" ratings
* 24 January to 31 March 1972, "unsatisfactory" conduct and "good" efficiency ratings

15.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

16.  The applicant provides medical records and progress notes that show he was treated at the Department of Veterans Affairs Medical Center in Prescott, AZ, and a VA health care facility, Lake Havasu City, AR, as follows in part:

   a.  On 28 October 2011, he was treated for and diagnosed with major depressive affective disorder, recurrent episode, severe degree, without mention of psychotic behavior.

   b.  On 6 February 2012, he was treated for major depressive affective disorder, recurrent episode, severe degree, without mention of psychotic behavior and he was diagnosed with alcohol abuse, unspecified drinking behavior.
   
   c.  On 3 September 2014, he was treated for major depressive affective disorder, recurrent episode, severe degree, without mention of psychotic behavior; unspecified alcohol dependence; and he was diagnosed with unspecified cannabis abuse.
   
   d.  On 29 September 2014, he participated in the Anger Transforming Anger group psychotherapy counseling session.  The group counselor noted the applicant was alert and animated in effect.  Group members were educated about and discussed how psychological, emotional, and physical pains were not a choice but how suffering was a choice.  

	e.  On 7 October 2014, he completed his first session on PTSD.  The clinical psychologist noted an overview of PTSD symptoms and an explanation of the development and maintenance of PTSD was presented and the patient provided a brief description of his most traumatic event.  

   f.  On 15 October 2014, he was treated for major depressive affective disorder, recurrent episode, severe degree, without mention of psychotic behavior; unspecified alcohol dependence; dependence; unspecified cannabis abuse; and he was diagnosed with PTSD.

17.  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 has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge was authorized, an undesirable discharge was normally given.

18.  PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster.  The Diagnostic and Statistical Manual of Mental Disorders (DSM) is published by the American Psychiatric Association (APA) and it provides standard criteria and common language for the classification of mental disorders.  In 1980, the APA added PTSD to the third edition of its DSM-III nosologic classification scheme.  Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice. From an historical perspective, the significant change ushered in by the PTSD concept was the stipulation that the etiological agent was outside the individual (i.e., a traumatic event) rather than an inherent individual weakness (i.e., a traumatic neurosis).  The key to understanding the scientific basis and clinical expression of PTSD is the concept of "trauma." 

19.  PTSD is unique among psychiatric diagnoses because of the great importance placed upon the etiological agent, the traumatic stressor.  In fact, one cannot make a PTSD diagnosis unless the patient has actually met the "stressor criterion," which means that he or she has been exposed to an event that is considered traumatic.  Clinical experience with the PTSD diagnosis has shown, however, that there are individual differences regarding the capacity to cope with catastrophic stress.  Therefore, while most people exposed to traumatic events do not develop PTSD, others go on to develop the full-blown syndrome.  Such observations have prompted the recognition that trauma, like pain, is not an external phenomenon that can be completely objectified.  Like pain, the traumatic experience is filtered through cognitive and emotional processes before it can be appraised as an extreme threat.  Because of individual differences in this appraisal process, different people appear to have different trauma thresholds, some more protected from and some more vulnerable to developing clinical symptoms after exposure to extremely stressful situations.

20.  The DSM fifth revision (DSM-5) was released in May 2013.  This revision includes changes to the diagnostic criteria for PTSD and Acute Stress Disorder.  The PTSD diagnostic criteria were revised to take into account things that have been learned from scientific research and clinical experience.  The revised diagnostic criteria for PTSD include a history of exposure to a traumatic event that meets specific stipulations and symptoms from each of four symptom clusters:  intrusion, avoidance, negative alterations in cognitions and mood, and alterations in arousal and reactivity.  The sixth criterion concerns duration of symptoms; the seventh assesses functioning; and the eighth criterion clarifies symptoms as not attributable to a substance or co-occurring medical condition.

	a.  Criterion A, stressor:  The person was exposed to: death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence, as follows: (one required) 
		(1)  Direct exposure. 

		(2)  Witnessing, in person.

		(3)  Indirectly, by learning that a close relative or close friend was exposed to trauma.  If the event involved actual or threatened death, it must have been violent or accidental.

		(4)  Repeated or extreme indirect exposure to aversive details of the event(s), usually in the course of professional duties (e.g., first responders, collecting body parts; professionals repeatedly exposed to details of child abuse). This does not include indirect non-professional exposure through electronic media, television, movies, or pictures.

	b.  Criterion B, intrusion symptoms:  The traumatic event is persistently re-experienced in the following way(s): (one required) 

		(1)  Recurrent, involuntary, and intrusive memories. 

		(2)  Traumatic nightmares. 

		(3)  Dissociative reactions (e.g., flashbacks) which may occur on a continuum from brief episodes to complete loss of consciousness. 

		(4)  Intense or prolonged distress after exposure to traumatic reminders. 

		(5)  Marked physiologic reactivity after exposure to trauma-related stimuli. 

	c.  Criterion C, avoidance:  Persistent effortful avoidance of distressing trauma-related stimuli after the event: (one required)

		(1)  Trauma-related thoughts or feelings.

		(2)  Trauma-related external reminders (e.g., people, places, conversations, activities, objects, or situations).

	d.  Criterion D, negative alterations in cognitions and mood:  Negative alterations in cognitions and mood that began or worsened after the traumatic event: (two required)

		(1)  Inability to recall key features of the traumatic event (usually dissociative amnesia; not due to head injury, alcohol, or drugs).

		(2)  Persistent (and often distorted) negative beliefs and expectations about oneself or the world (e.g., "I am bad," "The world is completely dangerous").

		(3)  Persistent distorted blame of self or others for causing the traumatic event or for resulting consequences.

		(4)  Persistent negative trauma-related emotions (e.g., fear, horror, anger, guilt, or shame).

		(5)  Markedly diminished interest in (pre-traumatic) significant activities.
Feeling alienated from others (e.g., detachment or estrangement).

		(6)  Constricted affect: persistent inability to experience positive emotions. 

	e.  Criterion E, alterations in arousal and reactivity:  Trauma-related alterations in arousal and reactivity that began or worsened after the traumatic event: (two required)

		(1)  Irritable or aggressive behavior

		(2)  Self-destructive or reckless behavior

		(3)  Hypervigilance

		(4)  Exaggerated startle response

		(5)  Problems in concentration

		(6)  Sleep disturbance

	f.  Criterion F, duration:  Persistence of symptoms (in Criteria B, C, D, and E) for more than one month. 

	g.  Criterion G, functional significance:  Significant symptom-related distress or functional impairment (e.g., social, occupational).

	h.  Criterion H, exclusion:  Disturbance is not due to medication, substance use, or other illness. 



21.  As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis and treatment of PTSD the Department of Defense (DOD) acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had an undiagnosed condition of PTSD at the time of their discharge.  It is also acknowledged that in some cases this undiagnosed condition of PTSD may have been a mitigating factor in the Soldier's misconduct which served as a catalyst for their discharge.  Research has also shown that misconduct stemming from PTSD is typically based upon a spur of the moment decision resulting from temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues for an extended period of time.  

22.  In view of the foregoing, on 3 September 2014 the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service.

23.  BCM/NRs are not courts, nor are they investigative agencies.  Therefore, the determinations will be based upon a thorough review of the available military records and the evidence provided by each applicant on a case-by-case basis.  When determining if PTSD was the causative factor for an applicant's misconduct and whether an upgrade is warranted, the following factors must be carefully considered:

* Is it reasonable to determine that PTSD or PTSD-related conditions existed at the time of discharge?

* Does the applicant's record contain documentation of the occurrence of a traumatic event during the period of service?
* Does the applicant's military record contain documentation of a diagnosis of PTSD or PTSD-related symptoms?
* Did the applicant provide documentation of a diagnosis of PTSD or PTSD-related symptoms rendered by a competent mental health professional representing a civilian healthcare provider?
* Was the applicant's condition determined to have existed prior to military service?
* Was the applicant's condition determined to be incurred during or aggravated by military service?
* Do mitigating factors exist in the applicant's case?
* Did the applicant have a history of misconduct prior to the occurrence of the traumatic event?
* Was the applicant's misconduct premeditated?
* How serious was the misconduct?

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant's discharge proceedings, for misconduct, were conducted in accordance with law and regulations in effect at the time.  The characterization of the applicant's discharge was commensurate with the reason for discharge and overall record of military service in accordance with the governing regulations in effect at the time.

2.  At the time of the applicant's discharge, PTSD was largely unrecognized by the medical community and DOD.  However, both the medical community and DOD now have a more thorough understanding of PTSD and its potential to serve as a causative factor in a Soldier's misconduct when the condition is not diagnosed and treated in a timely fashion.


3.  Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible recharacterization of their overall service.

4.  A review of the applicant's record and the evidence that he provided shows that he was subjected to the ordeals of war while serving in the RVN.  Of particular note is that he began to use drugs while in Vietnam and participated in an amnesty program while in Vietnam. 

5.  His record is void of any previous misconduct and shows he went AWOL just over 3 months after returning from Vietnam.

6.  Subsequent to these 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. 

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 SP4/E-4 with an effective date of 16 January 1973.

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 24 January 1973 to 
show the characterization of service as "General, Under Honorable Conditions" and his rank/grade as SP4/E-4 with an effective date of 16 January 1973.



      ___________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)                                         AR20140019402



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ABCMR Record of Proceedings (cont)                                         AR20140019402



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