IN THE CASE OF:
BOARD DATE: 20 January 2015
DOCKET NUMBER: AR20140020200
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 correction of his military records by upgrading his under other than honorable conditions (UOTHC) discharge.
2. The applicant states he had war time service in the Republic of Vietnam (RVN). At the time of his discharge from the military, post traumatic stress disorder (PTSD) was not recognized and he did not receive any treatment for his condition. He contends that all of his discipline problems are easily attributable to his self medicating with alcohol to cope with the stressors of combat.
3. The applicant provides an information sheet from his medical doctor, dated
18 April 2012.
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. On 15 May 1967, the applicant enlisted in the Regular Army. He completed training and was awarded military occupational specialty 11B (Light Weapons Infantryman).
3. An undated DA Form 2173 (Statement of Medical Examination and Duty Status) shows the applicant was hit on the head with the butt of a rifle and sustained a cerebral concussion. This injury occurred during a family dispute. He was hospitalized on 13 October 1967. His injury was determined to be in the line of duty.
4. The applicant was assigned to the RVN on or about 1 November 1967. He performed duty as a rifleman, grenadier and a team leader in an infantry company. He was promoted to pay grade E-5 on 1 September 1968. On or about 27 October 1968, he departed the RVN and returned to the United States.
5. On 21 January 1969, the applicant accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 30 December 1968 through 13 January 1969.
6. On 9 July 1975, court-martial charges were prepared for two specifications of being AWOL from 18 September 1969 through 1 October 1969 and from
9 October 1969 through 9 July 1975.
7. On 16 July 1975, after consulting with counsel, the applicant 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 court-martial. He acknowledged that he had not been coerced and understood he could receive an UOTHC discharge and furnished an Undesirable Discharge Certificate. He further knew he could be deprived of many or all Army benefits as a result of the issuance of such a discharge and that he could be ineligible for many or all Veterans Affairs benefits. He waived his rights and elected to submit a statement in his own behalf.
8. In his statement, dated 16 July 1975, he said he did not want to return to the military service. He was married and had 5 children. His family needed him. He would accept any type of discharge. He waived the 72 hours waiting period.
9. On 8 August 1975, subsequent court-martial charges were prepared for three specifications of being AWOL from 11 to 12 September 1969, 18 September 1969 through 1 October 1969, and from 9 October 1969 through 9 July 1975.
10. On 10 September 1975, the appropriate authority approved the applicant's request for discharge for the good of the service. He directed the issuance of an Undesirable Discharge Certificate and reduction to the lowest enlisted grade.
11. The applicant was discharged accordingly on 30 September 1975 in the rank/grade of private (PV1)/E-1. He completed 2 years, 3 months, and 12 days of creditable active duty service. He had 2,194 days of lost time.
12. On 20 November 1979, the Army Discharge Review Board denied his request for an upgrade of his discharge.
13. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.
a. Chapter 10, as 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; the type of discharge normally given under the provisions of this chapter; the loss of Veterans Administration 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.
b. Paragraph 3-7a, provided that an honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.
c. Paragraph 3-7b, provided that a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. A characterization of under honorable conditions could be issued only when the reason for the Soldier's separation specifically allowed such characterization.
14. The information sheet from the applicant's medical doctor, as provided by the applicant, states the applicant was seen for a 1-hour session on 18 April 2012. The goal of the session was to assess his progress/status and to conduct therapy. The goals were accomplished. The current emotional status was described as not psychotic or high strung. He was casually attired and groomed. He was moderately depressed. His affect was constricted. He had trouble sleeping. The content of the session included concerns about {something unreadable]. Disclosed that he did not his wife but a table one time and a man. He was very angry at [unreadable] about an incident that happened several years ago. Has not forgiven her. Progress towards d/c plan limited. The frequency of visits as scheduled.
15. 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."
16. 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.
17. 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.
18. 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.
19. 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.
20. 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?
21. 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 causal 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
re-characterization of their overall service.
4. A review of the applicant's record shows that he served a tour of duty in the RVN as an infantryman with an infantry company. While it is highly likely he was subjected to the ordeals of war while serving in the RVN, no specific events have been offered as having been the traumatic cause of any PTSD condition.
5. Furthermore, no documentation has been provided showing that the applicant has been diagnosed with PTSD/PTSD-related symptoms by a competent mental health professional, or that any such diagnosis is connected to traumatic event(s) that occurred in theJan RVN.
6. The applicant's record is void of any misconduct prior to his period of service in the RVN. The available evidence is insufficient to show a connection between his misconduct of going AWOL and any mental disorder he may or may not have had at the time.
7. In view of the above, the applicant's request should be denied due to insufficient evidence showing he had PTSD and that PTSD was related to the applicants service.
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 for correction of the records of the individual concerned.
____________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) AR20140004034
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20140020200
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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