BOARD DATE:	  12 February 2015

		DOCKET NUMBER:  AR20140021086 


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 request to upgrade his under other than honorable discharge.

2.  The applicant states, in effect:

* in light of Secretary Hagel's announcement for the review of PTSD cases, and the ruling in the U.S. District Court for the District of Connecticut case of Shepherd v. McHugh, he wishes to have his case reconsidered
* his initial request to the Army Board for Correction of Military Records (ABCMR) dates from 1995 and, at the time, post-traumatic stress disorder (PTSD) was not recognized
* the Shepherd case mirrors his situation in many ways
* following his discharge he landed in a Veterans Affairs (VA) psychiatric unit
* he was not only suffering from PTSD, but also from an addiction to heroin
* he did not realize he had PTSD until 1990
* he still suffers today; he sees a counselor twice a week and a psychiatrist once a month

3.  The applicant provides:

* self-authored statement
* honorable discharge certificate dated 23 July 1968
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); lower portion overlaid with a DD Form 215 (Correction to DD Form 214)
* Shepherd v. McHugh, dated 10 November 2011, Memorandum of Law in Support of Cross Motion for Summary Judgment and Opposition to Defendant's Motion for Summary Judgment
* printout from an online HeraldNet news article regarding veterans with PTSD gaining discharge upgrades
* ABCMR Memorandum of Consideration, Docket Number AC93-06547A, dated 17 May 1995
* letter from ABCMR dated 15 August 1995
* medical documents submitted in an earlier application
* letters of support from counselors submitted in an earlier application
* letter from a doctor submitted in an earlier application

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in previous considerations of the applicant's case by the ABCMR in Docket Number AC93-06547 on 16 June 1993, Docket Number AC93-06547A on 17 May 1995, and Docket Number AR2001054236 on 28 June 2001.

2.  The applicant submitted an initial application, which was denied, and multiple requests for reconsideration, of which two were considered by the Board and denied.

	a.  The applicant argues, in effect, the 3 September 2014 memorandum by the Secretary of Defense along with outcome of the U.S. District Court case of Shepherd v. McHugh gives him grounds to give his previous request new consideration.

	b.  In view of the circumstances of this case, and as an exception to the policy, this application for reconsideration warrants consideration by the Board.

3.  The applicant enlisted in the Regular Army on 31 October 1967 at age 17.  Following initial training, he was awarded military occupational specialty 36C (Field Lineman).

4.  He was honorably discharged for immediate reenlistment on 23 July 1968.  He was issued a DD Form 214 that captured his active service from 31 October 1967 to 23 July 1968.

5.  On 24 July 1968, he reenlisted in the Regular Army so he could deploy to Vietnam.  His DA Form 20 (Enlisted Qualification Record) shows he was in Vietnam from 19 September 1968 to 19 August 1969.  While in Vietnam he was assigned to Company C, 9th Signal Battalion, 9th Infantry Division.

6.  His DA Form 20 shows, on or about 3 November 1969, he was then assigned to Battery A, 6th Battalion (Hawk), 65th Artillery Regiment, Key West, FL.  It also shows he departed his Key West, FL unit in an absent without leave (AWOL) status on 24 February 1970.  He returned to military control at Fort Devens, MA on 12 April 1970.  He again went AWOL from 16 April 1970 to 6 May 1970, and from 25 May 1970 to 5 August 1970. 

7.  On 3 September 1970, he was convicted by a special court-martial for his three periods of AWOL, and on 6 October 1970 his conviction was approved.

8.  On 3 March 1971, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for one specification of willfully disobeying the lawful order of a superior noncommissioned officer.

9.  While the DD Form 458 (Charge Sheet) is no longer available for review, it appears his commander preferred charges against the applicant in March 1971.  On 16 March 1971, the applicant consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights available to him.  Subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

10.  In an undated indorsement, the separation authority denied the applicant's request for discharge in lieu of trial by court-martial.

11.  General Court-Martial Order (GCMO) Number 158, dated 25 June 1971, issued by Headquarters, Fort Devens, shows the applicant was convicted by a general court-martial and was sentenced to receive a bad conduct discharge and to be reduced to private/E-1 on 26 May 1971.  He had been charged with one specification of filing a fraudulent claim with the government for $490.00 and one specification of stealing $490.00.  He pleaded guilty and accepted the bad conduct discharge pursuant to a pre-trial agreement.


12.  GCMO Number 228, dated 8 September 1971, issued by Headquarters, Fort Devens, showed the applicant's sentence was affirmed and directed to be duly executed.

13.  His DD Form 214 shows he was discharged under other than honorable conditions, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) and in accordance with GCMO Number 158.  This form also shows he completed 3 years and 10 months of total active service.  He had 142 days of lost time.  His DD Form 214, as amended by his DD Form 215, shows he was awarded or authorized:

* Bronze Star Medal
* Army Commendation Medal
* National Defense Service Medal
* Vietnam Service Medal with four bronze service stars
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Republic of Vietnam Civil Actions Honor Medal, First Class Unit Citation
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar

14.  On 8 August 1991, the Office of the Judge Advocate General replied to the applicant's request for clemency.  In the response, he was referred to the ABCMR for relief.

15.  On 16 June 1993, in ABCMR Docket Number AC93-06547, the Board denied the applicant's request for an upgraded discharge.  The basis for denial was the applicant's request was not submitted within the time required.  Additionally, neither the applicant's records nor the evidence submitted by the applicant gave sufficient justification to conclude it would be in the interest of justice to grant relief.

16.  The applicant requested relief from the Army Discharge Review Board (ADRB), and on 5 November 1993 the ADRB responded by recommending he submit a request for reconsideration of the ABCMR's previous decision.

17.  On 9 December 1993, the ABCMR responded by rejecting the applicant's request for reconsideration.  The Board found the applicant's contention his condition of PTSD had contributed to that misconduct which led to his discharge did not constitute new evidence.

18.  On 17 May 1995, in ABCMR Docket Number AC93-06547A, the Board reconsidered the applicant's request for an upgrade to his discharge.  It considered numerous mental health evaluations and treatment notes as new evidence.  It found, however, the evidence of PTSD did not mitigate the applicant's misconduct, and the applicant's request was denied.

19.  The applicant again filed a request for reconsideration in ABCMR Docket Number AR1998014373.  On 8 June 1999, he was notified by the Board his case would not be reviewed because of the lack of new evidence.

20.  The applicant filed requests for reconsideration in 1999 (ABCMR Docket Number AR1999034064) and in 2000 (ABCMR Docket Number AR2000042071).  Both requests were returned without action.

21.  On 28 June 2001, the Board again considered the applicant's request for reconsideration in Docket Number AR2001054236.  His request was denied, finding the additional evidence submitted was not sufficient to change the earlier decisions.  His DD Form 214, however, was amended to show all awards and decorations he had earned while on active duty.

22.  The applicant provides self-authored statement which essentially states:

* he can provide update records from his physician if needed
* he feels renewed hope with the results of the Shepherd v. McHugh case
* he asks if there is a DD Form 214 for his period of service ending 
23 July 1968

23.  The applicant provides:

* the motion presented by the plaintiff in the case of Shepherd v. McHugh; the result of which was a settlement that included the plaintiff receiving a discharge upgrade to general under honorable conditions
* an article from HeraldNet which describes how up to 80,000 veterans with PTSD can receive upgrades to their bad discharges 
* five letters of support from counselors, in which four letters essentially affirm the applicant suffers from PTSD
* a letter from a doctor which essentially confirms the applicant's diagnosis of PTSD

24.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, provides policy and guidance for enlisted separations.

	a.  Chapter 11 states an enlisted person will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed.
	b.  Paragraph 1-5 shows character of service for a bad conduct discharge will be listed as being under other conditions other than honorable.

	c.  Paragraph 1-9d 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.

	d.  Paragraph 1-9e 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.

25.  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.

26.  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."

27.  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.

28.  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)

* Irritable or aggressive behavior
* Self-destructive or reckless behavior
* Hypervigilance
* Exaggerated startle response
* Problems in concentration
* 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

29.  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.

30.  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.

31.  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?

32.  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 requests his discharge be upgraded to general under honorable conditions.  With respect to the characterization of service:

	a.  The applicant’s records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  He was given a bad conduct discharge pursuant to an approved sentence by a general court-martial empowered to adjudge such a discharge.  This type of court-martial was warranted by the gravity of the offense charged at the time.  His conviction and discharge were effected in accordance with applicable laws and regulations and his discharge appropriately characterizes the misconduct for which he was convicted.  The appellate review was completed and the affirmed sentence ordered duly executed.

	b.  All requirements of law and regulation were met and his rights were fully protected.  By law, any redress by this Board of the finality of a court-martial conviction is prohibited.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.

	c.  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.  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.

	d.  The applicant provides evidence that he has been suffering from PTSD, with a history of substance abuse.  He contends the PTSD is a result of his combat experiences.  He does not provide evidence, however, that would adequately explain the connection between PTSD and his acts of misconduct.  For his argument to be viable, he would have to show how PTSD rendered him unable to distinguish right from wrong, and to therefore cause him to believe he was justified when he filed a false claim and stole money.  The evidence presented is insufficient to support such a contention.

	e.  As a result of the foregoing, it cannot be concluded that the PTSD conditions were a causative factor in the misconduct that led to the discharge.  There is therefore no basis upon which to grant the requested relief. 

2.  In his self-authored statement the applicant asks if he was issued a DD Form 214 for his first period of service ending 23 July 1968.  A copy was provided to him under separate correspondence.

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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in
ABCMR in Docket Number AC93-06547 on 16 June 1993, Docket Number AC93-06547A on 17 May 1995, and Docket Number AR2001054236 on 
28 June 2001.



      _________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)                                         AR20140021086





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ABCMR Record of Proceedings (cont)                                         AR20140021086



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