IN THE CASE OF:	  

		BOARD DATE:	  3 March 2015

		DOCKET NUMBER:  AR20140021401 


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 that his bad conduct discharge (BCD) be upgraded to a more favorable discharge that will afford him medical benefits.

2.  The applicant states, in effect, that he volunteered for service because of the Vietnam War and was held past his term of service because of that war.  He goes on to state that he was unjustly treated in the stockade and spent time in the psychiatric ward.  Accordingly, he should be granted an upgrade of his discharge based on his having post-traumatic stress disorder. 

3.  The applicant provides a one-page letter explaining his application, copies of a letter from the Department of Veterans Affairs denying him benefits, and five third party letters of support.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the NJARNG for a period of 3 years on 1 April1963.  He was discharged from the ARNG and as a Reserve of the Army on 25 May 1964 for continued and willful absence from military duties with a general discharge.  He completed 1 year, 1 month, and 25 days of net Reserve service during this period.

2.  It appears he subsequently enlisted in the U.S. Army Reserve.  Letter Orders Number A-08-2746, dated 15 August 1968, involuntarily ordered him to active duty with a reporting date of 17 September 1968.  He entered active duty on 5 December 1968 and was subsequently assigned to the U.S. Army Overseas Replacement Station, Fort Jackson, SC and was transferred to Germany.

3.  Nonjudicial punishment (NJP) was imposed against him on 18 February 1969 for being absent without leave (AWOL) from his assigned unit from 23 January to 16 February 1969.

4.  On 19 February 1969, he was assigned to the 2nd Battalion, 15th Infantry, and on 29 September 1969, NJP was imposed against him for being absent without authority from his proper place of duty on two separate occasions, disobeying a lawful order from a commissioned officer, disobeying a lawful order from a noncommissioned officer (NCO), being disrespectful in language toward an NCO.

5.  On 22 October 1969, NJP was imposed against him for being absent without authority from his proper place of duty and being disrespectful in language towards an NCO on two separate occasions.

6.  On 14 May 1970, he was convicted by a special court-martial of being AWOL from 1 to 18 November 1969, being AWOL from 27 November 1969 to 7 January 1970, being disrespectful in language toward an officer, acting violently toward an officer by pushing and striking him with his fist, disobeying a lawful order from an NCO, and being disrespectful in language toward an NCO.  He was sentenced to confinement for 1 month and a bad conduct discharge.  On 9 June 1970, the sentence was approved and he was ordered to be confined at Fort Dix, NJ, pending appellate review.

7.  On 14 June 1970, he was assigned to U.S. Army Returnee-Reassignment Station, Fort Dix, NJ.  On 15 June 1970, he was reported in an AWOL status by his assigned unit.  

8.  It appears he was returned to military control on 13 March 1971 after being AWOL for 258 days.  His DA Form 20 (Enlisted Qualification Record) shows he had lost time as follows:

* 1 - 17 November 1969, 17 days, AWOL
* 27 November 1969 - 7 January 1970, 42 days, AWOL
* 13 January - 12 June 1970, 151 days, confinement
* 15 June 1970 - 13 March 1971, 258 days, AWOL

9.  Special Court-Martial Order Number 118, dated 6 May 1971, issued by Headquarters (HQ), U.S. Army Training Center, Infantry, Fort Dix, Fort Dix, NJ, shows the applicant's sentence having been affirmed and complied with, the convening authority ordered his bad conduct discharge executed.

10.  Special Orders Number 56, dated 20 March 1972, issued by HQ, Fort Devens, Fort Devens, MA, discharged the applicant effective 24 March 1972.  These orders show the applicant was issued a Bad Conduct Discharge Certificate with an under other than honorable conditions characterization of service.  On 24 March 1972, he was discharged accordingly.

11.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) the applicant was issued for this period of service is not available for review with this case.  However, his records contain a Certification of Military Service, dated 20 January 2006, wherein it shows he served from 5 December 1968 to 24 March 1972 and his service was terminated by under other than honorable conditions (with a bad conduct discharge). 

12.  He completed 3 years, 3 months, and 21 days of net active service during this period.  He also had 468 days of lost time due to being AWOL and in confinement.

13.  The applicant's available records do not show that he was ever diagnosed with or suffered from any psychiatric disorder and/or medical condition while serving on active duty that limited his ability to perform in his grade/MOS or that would have warranted entry into the Army Physical Disability Evaluation System (PDES).  Additionally, he has provided no such evidence with his application. 

14.  On 5 August 1974 and 24 June 1981, the Army Discharge Review Board denied his request for an upgrade of his bad conduct discharge and determined he had been both properly and equitably discharged.

15.  Army Regulation 635-200 (Personnel Separations - Enlisted Separations) sets forth the basic policy governing the separation of enlisted personnel.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

16.  Army Regulation 635-200 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.
17.  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.

18.  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." 

19.  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.

20.  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. 

21.  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.  

22.  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.

23.  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?

24.  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.  Trial by court-martial was warranted by the gravity of the offenses charged.  Conviction and discharge were effected in accordance with the applicable law and regulation and the discharge appropriately characterizes the misconduct for which the applicant was convicted.  Therefore, the type of discharge directed and the reasons therefore appear to be appropriate considering the facts of the case.

2.  The applicant’s contentions and supporting documents have been considered.  However, they are not sufficiently mitigating to warrant relief when compared to the serious nature of his offenses, the lack of mitigating circumstances and his otherwise undistinguished record of service.

3.  The applicant’s contention that his misconduct was caused by PTSD has also been noted and found to lack merit as he has failed to show through the evidence of record and the evidence submitted with his application any evidence of having been medically diagnosed with PTSD.

4.  Accordingly, his sentence was not disproportionate to the offenses for which he was convicted and he has failed to show sufficient evidence or reasons to warrant an upgrade of his discharge based on clemency.    

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 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)                                         AR20140021401





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ABCMR Record of Proceedings (cont)                                         AR20140021401



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