IN THE CASE OF:  	  

		BOARD DATE:  18 June 2015	  

		DOCKET NUMBER:  AR20140020404 


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 an earlier request to upgrade his undesirable discharge.

2.  The applicant states, per changes in the law effective 2014, his discharge should be changed to honorable or general based on the fact he suffered from post-traumatic stress disorder (PTSD) and it was a factor in his behavior after returning from Vietnam.

3.  The applicant provides:

* Army Board for Correction of Military Records (ABCMR) letter, dated 12 April 2013
* psychological evaluation, dated 15 July 2014
* progress notes/medical records
* service personnel records
* statements from his pastor, family members, and friends
* newspaper article pertaining to his award of the Army Commendation Medal for heroism
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's earlier request to upgrade his undesirable discharge.

2.  Counsel states the applicant suffers from PTSD and it is their contention that the applicant's discharge upgrade claim must be reviewed under the new regulations effective 3 September 2014 pertaining to veterans with a discharge under other than honorable conditions who are suffering from PTSD.

3.  Counsel provides a psychological report, dated 14 December 2014, on behalf of the applicant.

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 AC87-05926 on 17 August 1988.

2.  The applicant provided progress notes, dated 11 February 2014 to 29 April 2014, for his individual psychotherapy sessions and a psychological evaluation, dated 15 July 2014, that were not previously considered by the Board and merit consideration at this time.  His counsel also provided a psychological report, dated 14 December 2014, that was not previously considered by the Board and merits consideration at this time.

3.  The applicant enlisted in the Regular Army on 10 June 1968 for 3 years.

4.  He served as a heavy vehicle driver in Vietnam from 4 November 1968 to 21 October 1969.  He was awarded the Army Commendation Medal with "V" Device for heroism in connection with military operations against a hostile force in the Republic of Vietnam on 26 February 1969.

5.  In December 1969, nonjudicial punishment (NJP) was imposed against him for failing to repair and being absent without leave (AWOL) from 22 December 1969 to 26 December 1969.

6.  On 23 January 1970, NJP was imposed against him for disobeying a lawful order by speeding (33 miles per hour in a 25-mile per hour zone).

7.  On 4 September 1970, he was convicted by a special court-martial of being AWOL (two specifications) from 7 July 1970 to 11 July 1970 and from 20 July 1970 to 10 August 1970.  He was sentenced to confinement at hard labor for 3 months and forfeiture of $80.00 pay per month for 3 months.

8.  Records show he was also AWOL from:

* 20 October 1970 to 29 December 1970
* 6 January 1971 to 18 January 1971

9.  His charge sheet is not available for review.

10.  On 11 June 1971 after consulting with counsel, he submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He indicated he understood he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, and he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged he understood he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to submit a statement in his own behalf.

11.  The separation authority's decision is not available for review.

12.  On 28 June 1971, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, and issued an Undesirable Discharge Certificate.  He completed 2 years, 8 months, and 18 days of total active service with 123 days of lost time.

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

14.  On 17 August 1988, the ABCMR denied the applicant's request for an upgrade of his undesirable discharge to honorable.

15.  The applicant provided University of Arkansas for Medical Sciences Walker Family Clinic, Little Rock, AR, progress notes for his individual psychotherapy sessions prepared by a licensed clinical social worker, dated 11 February 2014 to 29 April 2014, which show he was diagnosed with PTSD.

16.  He provided a psychological evaluation based on a 2-hour interview performed by a psychologist with the Arkansas Psychological Services, Little Rock, AR, dated 15 July 2014, which states:

* the applicant has a history of military service in Vietnam that exposed him to multiple instances of traumatic combat experiences
* he developed a typical range of PTSD symptoms
* his efforts to cope included drinking heavily and working hard
* his current and past history is consistent with a diagnosis of PTSD

17.  Counsel provided a psychological report, dated 14 December 2014, wherein the psychologist determined the applicant was or is insane pursuant to Title 38 (Pensions, Bonuses, and Veterans' Relief), Code of Federal Regulations, section 3.354 (Determinations of Insanity), as evidenced by the psychological impact of several incidents he reported that occurred to him:

* he had been in many combat situations where he saw men being grievously injured and killed
* he felt confusion, guilt, and remorse over his role
* he was confronted during an airplane trip back to the United States and humiliated in public about being a Soldier
* his wife divorced him within 30 days because of his symptoms
* he suffered from cognitive deficits/mental confusion
* when he went to Fort Sill, OK he had to cope with the constant sound of artillery which triggered disturbing and distressing flashbacks and memories of Vietnam
* he was discouraged and overwhelmed when his efforts to seek help from a chaplain were for naught
* he was drinking heavily, self-medicating as a means of dulling his thinking
* more friends of his were killed or died secondary to their own involvement in the war
* he couldn't cope with the confinement in the stockade and escaped multiple times
* he was AWOL and was unable to find any kind of resolution or answer to his problems or find any relief from his PTSD symptoms

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of the version 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 to an individual who was discharged for the good of the service.

	b.  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.

	c.  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.

19.  Title 38, Code of Federal Regulations, section 3.12, states a discharge or release from service under one of the conditions specified in this section is a bar to the payments of benefits unless it is found that the person was insane at the time of committing the offense causing such discharge or release.

20.  Title 38, Code of Federal Regulations, section 3.354, provides that an insane person is one who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more or less prolonged deviation from his normal method of behavior; or who interferes with the peace of society; or who has so departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he resides.  When a rating agency is concerned with determining whether a veteran was insane at the time he committed an offense leading to his court-martial, discharge, or resignation, it will base its decision on all the evidence procurable relating to the period involved and apply this definition of insanity.

21.  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."

22.  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.

23.  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.

24.  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 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.

25.  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 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 applicants' service.

26.  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?

27.  Although 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 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 under other than honorable conditions 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 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.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was AWOL on five separate occasions following his return from duty in Vietnam, totaling 123 days of lost time, and resulted in one special court-martial conviction.  His records are otherwise void of any serious misconduct.

2.  His voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and conformed with applicable regulations in effect at that time.

3.  The psychological report provided by counsel wherein the psychologist determined the applicant was or is insane pursuant to Title 38, Code of Federal Regulations, section 3.354, was noted.  However, there is insufficient evidence to show the applicant was declared legally insane at any time during or subsequent to his military service.  

4.  Insanity is a legal (nonmedical) term for mental illness of such a severe nature that a person cannot distinguish fantasy from reality, cannot conduct his/her affairs due to psychosis, or is subject to uncontrollable impulsive behavior.

5.  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.

6.  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.

7.  He contends he suffered from PTSD and it was a factor in his behavior after returning from Vietnam.

8.  A review of his records and the evidence he provided shows he was subjected to the ordeals of war while serving in Vietnam which included combat service.

9.  Subsequent to these experiences, medical evidence shows he was diagnosed with PTSD by a competent mental health professional.  Therefore, it is reasonable to believe his PTSD condition existed at the time of his discharge.

10.  It is therefore reasonable to conclude that the PTSD conditions were a causative factor in the misconduct that led to his discharge.  After carefully weighing that fact against the severity of the applicant's misconduct, there is sufficient mitigating evidence to warrant upgrading the character of the applicant's service to general under honorable conditions.  However, in weighing those same factors, the applicant's overall service did not rise to a fully honorable character of service.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

____X___  ____X___  ____X___ GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AC87-05926, dated 17 August 1988.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by re-issuing his DD Form 214 for the period ending 28 June 1971 to show the character of his service as general under honorable conditions.



2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading his discharge to fully honorable.



      __________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)                                         AR20140020404



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ABCMR Record of Proceedings (cont)                                         AR20140020404



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