BOARD DATE:	  19 March 2015

		DOCKET NUMBER:  AR20140019440


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, in effect, that his previously-upgraded discharge be affirmed under the Department of Defense (DOD) Special Discharge Review Program (SDRP) so he may obtain Department of Veterans Affairs (VA) benefits.

2.  The applicant states, in effect, that:

	a.  he has been diagnosed with post-traumatic stress disorder (PTSD) and contends that PTSD was the catalyst for his misconduct; and 

	b.  even though his DD Form 214 (Report of Separation from Active Duty) shows his discharge was upgraded to an under honorable conditions (general) discharge, his upgrade is not recognized by the VA when determining his entitlement to benefits.

3.  The applicant provided copies of his DD Form 214; VA Rating Decision, dated 14 February 1997; and a Stars and Stripes article titled "As Many as 80,000 Veterans with PTSD Could Gain Discharge Upgrades."

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 27 February 1968.  He completed his initial entry training and was awarded military occupational specialty 67A (Aircraft Maintenance Apprentice).  The highest rank/grade he attained during his period of active military service was specialist four/E-4.

3.  On or about 3 June 1968, he was reported in an absent without leave (AWOL) status by his unit.  On 3 July 1968, he was dropped from the rolls of the Army as a deserter.  On or about 2 November 1969, after 518 days in an AWOL status, he was returned to military control at Fort Devens, Massachusetts.

4.  On 28 January 1970, before a general court-martial at Fort Devens, Massachusetts, he was convicted of a single specification of being AWOL from on or about 9 June 1968 through 3 November 1969.  He served a period of confinement ending on 22 April 1970.

5.  He served in the Republic of Vietnam from on or about 16 December 1970 through 18 December 1971.  During this period of service, he was awarded or authorized the Air Medal, National Defense Service Medal, Vietnam Service Medal, and the Aircraft Crewman Badge.

6.  On 6 November 1971, before a special court-martial in the Republic of Vietnam, he was convicted of a single specification of conducting himself with disrespect toward a commissioned officer, on or about 23 October 1971.  He served a period of confinement ending on 19 January 1972.

7.  The specific facts and circumstances of the applicant's discharge precessing are not available for review.  

8.  On 20 January 1972, the applicant was discharged under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability).   His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he accrued 669 days of lost time during his period of active military service, he received an under other than honorable conditions characterization of service upon his discharge, and he was issued an Undesirable Discharge Certificate.

9.  On 31 May 1977, under the provisions of the DOD SDRP, his under other than honorable conditions discharge was upgraded to an under honorable conditions (general) discharge.  His previous DD Form 214 was voided and a new DD Form 214 was created to reflect this change.  

10.  A letter, dated 16 November 1978, shows that in accordance with Public Law 95-126, the Army Discharge Review Board (ADRB) re-reviewed his discharge and determined his characterization was warranted in accordance with the DOD SDRP.  Accordingly, a DD Form 215 was issued that shows his characterization of service was warranted under the provisions of the DOD SDRP.  He was advised that he would not be able to use his upgraded discharge to qualify for VA benefits.

11.  On 4 April 1977, DOD directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973.  In the absence of compelling reasons to the contrary, this program, known as the DOD SDRP, required that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems that may have contributed to the acts that led to the discharge and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.

12.  In October 1978, Public Law 95-126 was enacted.  This legislation required the Service Departments to establish historically-consistent uniform standards for discharge reviews.  Reconsideration of all discharges previously upgraded under the DOD SDRP was required using these uniform standards.  Individuals whose DOD SDRP upgrades were not affirmed upon review under these historically-consistent uniform standards were not entitled to VA benefits unless they had been entitled to such benefits before their DOD SDRP review.

13.  The Board has been advised in similar cases that the VA often requires validation or affirmation of SDRP upgrades by the military service corrections boards, in this case the ABCMR, in order to authorize the service member VA benefits.

14.  Army Regulation 635-200 currently in effect, governs the policies and procedures for the separation of enlisted personnel.  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.

15.  The applicant's medical records are not available for review.  His available personnel records are void of any documents that show he was diagnosed with or suffered from symptoms later associated with PTSD.  Likewise, his record is also void of documentation that details a particular PTSD stressor he experienced during his period of military service.

16.  The applicant provided his VA Rating Decision, dated 14 February 1997, which shows he was awarded service-connected disability for his diagnosed PTSD; however, his percentage of disability is unknown.  Additionally, this document does not attribute his PTSD to any particular PTSD stressor he experienced during his period of military service.

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).  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 a 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 fifth revision of the DSM (DSM-5) was released in May 2013.  This revision included 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:

* the first criterion concerns a history of exposure to a traumatic event that meets specific stipulations (stressor) 
* the second through fifth criterion concerns 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
* 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. 

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, 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 that 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 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.

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 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 causal relationship of symptoms to the misconduct.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for affirmation of his previously-upgraded discharge was carefully considered.  He contends the misconduct that resulted in his discharge was caused by PTSD.

2.  The applicant's discharge proceedings, as well as his subsequent review by the ADRB under the DOD SDRP, were conducted in accordance with law and regulations in effect at the time.  The characterization of his 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.
 
3.  At the time of his 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.

4.  Soldiers who suffered from PTSD, who were separated solely for misconduct subsequent to a traumatic event, warrant careful consideration for the possible re-characterization of their overall service.

5.  When determining if PTSD was the causative factor for an applicant's misconduct and whether an upgrade is warranted, the BCMR must consider many factors, including but not limited to:

* whether or not the applicant's record contains documentation of a diagnosis of PTSD or PTSD-related symptoms
* whether or not the applicant provided documentation of a diagnosis of PTSD or PTSD-related symptoms rendered by a competent mental health professional representing a civilian healthcare provider
* whether or not it is reasonable to determine that PTSD or PTSD-related conditions existed at the time of the applicant's discharge 
* whether or not the applicant's condition was determined to be incurred during or aggravated by military service
* the presence of mitigating factors exist in the applicant's case
* a history of misconduct prior to the occurrence of the traumatic event

6.  A review of the applicant's record and the evidence he provided shows he was subjected to the ordeals of war while serving in Vietnam.  Subsequent to his experiences in Vietnam, medical evidence shows he was diagnosed with PTSD/PTSD-related symptoms by a competent mental health professional.  His PTSD was attributed to his combat service in Vietnam. Therefore, it is reasonable to believe his PTSD condition existed at the time of discharge. 

7.  His discharge was upgraded to an under honorable conditions (general) discharge under the DOD SDRP.  When the ADRB re-reviewed his case under Public Law 95-126, it decided not to affirm the discharge upgrade.  

8.  Notwithstanding the original determination by the ADRB, the evidence suggests the applicant's PTSD was a causative factor in the misconduct that led to his discharge.  After carefully weighing that fact against the severity of his misconduct, there is sufficient mitigating evidence to warrant affirming his previous discharge upgrade.

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 showing his previous discharge review, upgraded to a general characterization of discharge by the ADRB on 31 May 1977, was properly affirmed. 



      __________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)                                         AR20110015482



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ABCMR Record of Proceedings (cont)                                         AR20140019440



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