IN THE CASE OF:	  

		BOARD DATE:	  24 February 2015

		DOCKET NUMBER:  AR20140020044 


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 to an honorable discharge.

2.  The applicant states, in effect, he suffers from post-traumatic stress disorder (PTSD) and drug use due to his service in Vietnam.

3.  The applicant provides:

* Congressional correspondence
* Army Board for Correction of Military Records (ABCMR) Record of Proceedings for Docket Number AC98-11519, dated 28 October 1998
* Headquarters, Aberdeen Proving Ground, Special Court-Martial Order Number 8, dated 14 June 1973
* Immunization Record
* DA Form 20 (Enlisted Qualification Record), page 3
* Internet article titled, "Discharge Upgrades May be Possible for Vets with PTSD," dated 18 September 2014
* U.S. Department of Veterans Affairs (VA) identification card

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 ABCMR in Docket Number AC98-11519 on 28 October 1998.

2.  The applicant provided an Internet article titled, "Discharge Upgrades May be Possible for Vets with PTSD," dated 18 September 2014, as new evidence which was not previously considered by the Board that warrants consideration at this time.

3.  The applicant enlisted in the Regular Army on 1 June 1971 at the age of 18.

4.  He served in Vietnam during the period 10 November 1971 through 26 June 1972.

5.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows:

* 26 September 1972 – for failing to go to his appointed place of duty and disobeying a lawful order on or about 13 September 1972
* 8 April 1974 – for being absent without leave (AWOL) from on or about 25 March to 27 March 1974

6.  Headquarters, Aberdeen Proving Ground, Special Court-Martial Order Number 8, dated 14 June 1973, shows:

	a.  The applicant was tried and found guilty by special court-martial of the following charges and specifications:

* charge I, specification 2 – wrongfully possessing 2 milliliters, more or less, of amphetamine
* charge II, specification 1 – stealing a purse of some value and $281.00, more or less
* charge II, specification 2 – wrongfully appropriating one set of Maryland license plates of another Soldier
* charge III – being AWOL from on or about 2 October to 14 October 1972
* charge IV, specification 1 – using disrespectful language toward a superior noncommissioned officer
* charge V, specification 1 – failing to obey a lawful order on 24 November 1972

	b.  His punishment included reduction in grade to private/E-1, confinement at hard labor for 4 months, a forfeiture of $154.00 pay for 4 months, and a bad conduct discharge.  His sentence was adjudged on 3 March 1973.

	c.  The court-martial convening authority approved only so much of the sentence as provided for reduction to private/E-1, confinement at hard labor for 3 months, a forfeiture of $154.00 pay for 3 months, and a bad conduct discharge.

7.  On 29 July 1974, the U.S. Army Court of Military Review set aside the finding of guilty and dismissed charge V, specification 1, for failing to obey an order on 24 November 1972.  The applicant's remaining findings of guilty and the sentence were approved and affirmed.

8.  On 10 October 1974, the applicant was discharged under other than honorable conditions (UOTHC) in the rank of private/E-1 as a result of conviction by court-martial.  His DD Form 214 (Report of Separation from Active Duty) shows he completed 2 years, 2 months, and 20 days of creditable active service and he accrued 200 days of lost time.  His DD Form 214 also shows he was issued a DD Form 259A (Bad Conduct Discharge Certificate).

9.  On 6 December 1977, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

10.  On 28 October 1998, the ABCMR denied the applicant's request for an upgrade of his discharge.

11.  The ABCMR denied reconsideration of the applicant's request for an upgrade of his discharge for exceeding the 1-year regulatory limitation for reconsideration on the following dates:

* 11 January 2005 – ABCMR Docket Number AR2004107106
* 20 June 2008 –ABCMR Docket Number AR20080007220
* 22 June 2009 – ABCMR Docket Number AR20090009619
* 13 October 2009 – ABCMR Docket Number AR20090011298
* 19 March 2010 – ABCMR Docket Number AR20090018388

12.  With respect to ABCMR Docket Number 20090018388, the applicant provided extracts of medical records from the VA that show he had a confirmed diagnosis of PTSD from an outside facility.  The VA confirmed he had chronic PTSD, major depression recurrent, sustained remission of full cocaine dependence, sustained remission of full opiate dependence, sustained remission of full stimulant dependence, sustained remission of full tobacco use disorder, antisocial disorder, degeneration of inter-vertebral disc, hepatitis C, and anxiety.

13.  His VA medical record extracts also show he reported the following regarding his PTSD diagnosis:

	a.  A rocket attack was going on the day he arrived in Vietnam.

	b.  He was asked to relieve a friend who he went through basic training with and when he went to relieve his friend, the friend was blown up.  He stated he never used drugs, alcohol, or cigarettes prior to this incident, but he used them every day from 1971 to 2001.

	c.  His superior officer made him stay with a Soldier until he died.  The Soldier had been hit in the head with a helicopter blade.  The Soldier lived for a long time and talked to him with his eyes and this incident is replayed over and over.

	d.  He reported multiple incarcerations and stated he used to rob places in the hope of getting shot.

	e.  He reported a significant history of poly-substance dependence beginning when he entered the Army and continuing with daily use from 1971 to 2001, with the heaviest use in Vietnam.  He also reported using substances as a means of self-medicating against recurring traumatic memories.

	f.  He began individual and 12-step group therapy in 2001 and has been abstinent since that time.

14.  His military personnel and medical records are void of any evidence indicating he was subjected to a traumatic event or he was diagnosed with any mental-related condition while serving on active duty.

15.  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.

16.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.

	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.

	c.  Paragraph 3-11 provides that an enlisted person will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial.  The appellate review is required to be completed and the affirmed sentence ordered duly executed.

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 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 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 edition of the DSM 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 criterion 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; or

		(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; or

		(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; or

		(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); and

		(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; and

		(6)  sleep disturbance.

	f.  Criterion F – Duration:  Persistence of symptoms (in Criteria B, C, D, and E) for more than 1 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, the Department of Defense (DOD) acknowledges that some Soldiers who were administratively discharged UOTHC 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 Soldiers' 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 a 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.  On 3 September 2014 in view of the foregoing information, 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 applicants' 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 DOD acknowledges that some Soldiers who were administratively discharged UOTHC 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 records 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.  BCM/NRs 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.  BCM/NRs 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.

24.  Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-15, provides that an applicant may request the reconsideration of an ABCMR decision under the following circumstances:

	a.  If the ABCMR receives the request for reconsideration within 1 year of the ABCMR's original decision and if the ABCMR has not previously reconsidered the matter, the ABCMR staff will review the request to determine if it contains evidence (including, but not limited to, any facts or arguments as to why relief should be granted) that was not in the record at the time of the ABCMR's prior consideration.  If new evidence has been submitted, the request will be submitted to the ABCMR for its determination of whether the new evidence is sufficient to demonstrate material error or injustice.  If no new evidence is found, the ABCMR staff will return the application to the applicant without action.

	b.  If the ABCMR receives a request for reconsideration more than 1 year after the ABCMR's original decision or after the ABCMR has already considered one request for reconsideration, then the case will be returned without action and the applicant will be advised the next remedy is appeal to a court of appropriate jurisdiction.

DISCUSSION AND CONCLUSIONS:

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

2.  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.

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.  The applicant's records are void of any evidence he was subjected to a traumatic event while serving on active duty.  However, he provided VA medical records in which he reported he was subjected to traumatic events while serving in combat in the Vietnam.

5.  Subsequent to his traumatic experiences in the Vietnam, medical evidence shows the applicant was diagnosed with PTSD and other mental health-related symptoms by competent mental health professionals, to include professionals at the VA.

6.  His misconduct was serious and the basis for his court-martial (possession of amphetamine, AWOL, stealing a purse and money, wrongfully appropriating license plates, and using disrespectful language) was, in large part, premeditated misconduct that was not related to any medical condition (stress and/or depression) he may have later been diagnosed with or related to his service in Vietnam.  After carefully weighing that fact against the severity of the applicant's misconduct, there is insufficient mitigating evidence to warrant upgrading his discharge.

7.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  This Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

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 AC98-11519, dated 28 October 1998.



      _____________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)                                         AR20140020044



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140020044



11


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1