IN THE CASE OF:	  

		BOARD DATE:	  27 January 2015

		DOCKET NUMBER:  AR20140008261 


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 an upgrade of his general discharge under honorable conditions to an honorable discharge.

2.  The applicant states:

* his discharge was unjust due to his post-traumatic stress disorder (PTSD) incurred in Vietnam
* he attained the rank of specialist four and was awarded the Bronze Star Medal (3rd Award) during his tour in Vietnam

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Headquarters, 25th Infantry Division, General Orders Number 10738, dated 1 November 1970
* two letters from the Department of Veterans Affairs (VA), dated 22 February 2010 and 6 December 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.  The applicant enlisted in the Regular Army on 28 July 1969.

3.  He served in Vietnam during the period 3 January 1970 to 24 November 1970.  While serving in Vietnam, he was assigned to Troop C, 3d Squadron, 4th Cavalry Regiment, 25th Infantry Division.

4.  Headquarters, 25th Infantry Division, General Orders Number 10738, dated 1 November 1970, awarded him the Bronze Star Medal (3rd Award) for meritorious service in the Republic of Vietnam during the period January 1970 to November 1970.

5.  Following his service in Vietnam, he was reassigned to the 502d Adjutant General Administration Company, Fort Hood, TX.  He was later assigned to Company C, 1st Battalion, 66th Armor Regiment, 2d Armored Division, Fort Hood, TX.

6.  Following his service in Texas, he was assigned to Troop D, 1st Squadron, 14th Armored Cavalry Regiment, U.S. Army Europe, Germany.

7.  The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, on the following occasions:

* on 21 July 1971, for being absent without leave (AWOL) on or about 28 June 1971 until on or about 20 July 1971
* on 13 August 1971, for being absent from his place of duty from on or about 1330 hours on 10 August 1971 until on or about 1630 hours on 10 August 1971 
* on 19 August 1971, for disobeying an order
* on 13 October 1971, for –

* resisting arrest on or about 29 September 1971
* wrongfully appropriating a government truck on or about 29 September 1971
* being drunk and disorderly on or about 29 September 1971

8.  Headquarters, 1st Squadron, 14th Armored Cavalry Regiment, Summary Court-Martial Order Number 20, dated 7 October 1971, shows the applicant pled not guilty but was found guilty of sleeping on post on or about 27 August 1971.

9.  On 20 October 1971, the applicant was counseled on initiation of a bar to reenlistment against him due to his court-martial conviction and NJP.  The applicant elected not to submit statements in his own behalf.  On the same date, his commander advised him of initiation of discharge action for unsuitability under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability).

10.  On 21 October 1971, the applicant underwent a mental status evaluation and was found to have the mental capacity to understand and participate in proceedings, to be mentally responsible, and to meet retention standards.  He had no significant psychosis or neurosis and he was cleared for any administrative action deemed appropriate by his command.

11.  On 27 October 1971, the applicant acknowledged receipt of the separation memorandum.  He consulted with legal counsel and he was advised of the basis for the contemplated separation for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and the procedures and rights available to him.  He waived consideration of his case by a board of officers, waived a personal appearance before a board of officers, and declined making a statement in his own behalf.  He acknowledged he understood he might expect to encounter substantial prejudice in civilian life in the event a general discharge were issued to him, and, he might be ineligible for many or all benefits as a veteran under both Federal and State laws as a result of the issuance of a discharge under other than honorable conditions.

12.  Subsequent to this acknowledgement, his immediate commander initiated separation action against him by reason of unsuitability on 11 November 1971 under the provisions of Army Regulation 635-212 and recommended a discharge under honorable conditions (general).  The immediate commander cited the applicant's poor attitude and record of disciplinary actions.  He also requested a waiver of the rehabilitative transfer requirement.

13.  On 11 November 1971, his bar to reenlistment was approved.

14.  On 12 November 1971, the applicant's intermediate commander recommended approval of the discharge with the issuance of a general discharge and a waiver of the rehabilitative transfer requirement.

15.  On 19 November 1971 consistent with the chain of command's recommendations, the separation authority approved a waiver of the rehabilitative transfer requirement and the applicant's discharge under the provisions of Army Regulation 635-212 by reason of unsuitability.  He directed the issuance of a General Discharge Certificate.

16.  On 1 December 1971, the applicant was discharged accordingly.  His DD Form 214 shows he completed 2 years, 4 months, and 4 days of creditable active service.

17.  He provided copies of two letters from the VA, dated 22 February 2010 and 6 December 2012, that show he received an increase in his VA compensation for an unidentified service-related disability.

18.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations.

19.  His medical records are not available for review with this case.  The available records are void of and he failed to provide evidence showing he was diagnosed with PTSD as a result of his service in Vietnam.

20.  Army Regulation 635-212, in effect at the time, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6b stated an individual was subject to separation for unsuitability when one or more of the following conditions existed:  (1) inaptitude; (2) character and behavior disorders; (3) apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively); (4) alcoholism; (5) enuresis; and (6) homosexuality (Class III – evidenced homosexual tendencies, desires, or interest, but was without overt homosexual acts).  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based on the individual's entire record.

21.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic policy for the separation of enlisted personnel.  Paragraph 3-7a states 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.

22.  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." 

23.  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.

24.  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. 

25.  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 (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 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.  

26.  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.

27.  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?

28.  Although the 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 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 request for an upgrade of his general discharge under honorable conditions was carefully considered.

2.  His records are void of and he provided no evidence showing he was diagnosed with PTSD then or now.

3.  The applicant's administrative discharge was accomplished in accordance with applicable regulations with no violation of his rights.  Although he could have been recommended for a UOTHC discharge for misconduct, his commander elected to recommend discharge of general under honorable conditions.  The fact that he was discharged for this more favorable reason indicates his commander took into consideration the entirety of his military service and the severity of his misconduct, to include any mental health issues he may have had at the time of discharge.  Accordingly, his discharge and the reasons therefore were appropriate under the circumstances.

4.  An honorable character of service is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and 
performance of duty for Army personnel and an under honorable conditions character of service is appropriate for those Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  The applicant's military service was marred with misconduct.  Therefore, he is not entitled to an honorable discharge.

5.  In view of the foregoing, there is no basis for granting the applicant an upgrade of his discharge.

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)                                         AR20140008261



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ABCMR Record of Proceedings (cont)                                         AR20140008261



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