IN THE CASE OF:	  

		BOARD DATE:	  5 May 2015

		DOCKET NUMBER:  AR20150000124 


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, in effect, an upgrade of his undesirable discharge (UD) to a general discharge.

2.  The applicant states he believes that undiagnosed post-traumatic stress disorder (PTSD) may have played a role in the behavior that resulted in his other than honorable discharge.  Had the PTSD been diagnosed at the time, he would have been directed to medical treatment, rather than the disciplinary system that resulted in his discharge.  The Department of Defense (DoD) has directed a review of other than honorable discharges that may have been caused by undiagnosed PTSD.  He is requesting a review of his discharge based on the new policy.  

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 

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 the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the Regular Army, in pay grade E-1, on 14 April 1966, for 3 years.  He was awarded military occupational specialty (MOS) 70A (general clerk).  He was advanced to pay grade E-2 on 14 August 1966.  

3.  He accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on/for:

* 12 October 1966 – failing to report to his appointed place of duty on 10 October 1966
* 31 August 1967 – failing to make reveille formation and further failing to go to his appointed place of duty on 30 August 1967

4.  He served in Vietnam from 6 October 1967 through 27 November 1968 in MOS 76A (supply handler).  

5.  On 28 December 1967 while in Vietnam, he was convicted by a summary court-martial of one specification each of willfully disobeying a lawful command from his superior officer and wrongfully appropriating a truck on 3 December 1967.  He was sentenced to a reduction to pay grade E-1, a forfeiture of $64.00 pay for 1 month, and 46 days of hard labor without confinement.  On 30 December 1967, the convening authority approved the sentence and ordered it executed.

6.  On 23 January 1968 while in Vietnam, he was convicted by a summary court-martial of one specification each of failing to obey a lawful order from his superior officer, wrongfully appropriating a truck, and unlawfully leaving the scene of an accident on 23 December 1967.  He was sentenced to a forfeiture of $73.00 pay for 1 month and 45 days of hard labor without confinement.  The convening authority approved the sentence and ordered it executed on the same date.

7.  On 25 March 1968, the convening authority set aside the 23 January 1968 sentence.

8.  He accepted NJP under Article 15, UCMJ, on/for:

* 26 March 1968 – being derelict in the performance of his duty on 19 March 1968
* 21 April 1968 – being disrespectful in language and deportment toward his superior noncommissioned officer (NCO) on 21 April 1968
9.  He was again advanced to pay grade E-2 on 1 May 1968.

10.  On 7 July 1968 also while in Vietnam, he was convicted by a special court-martial of one specification of leaving his sentinel post before being regularly relieved on 1 April 1968.  He was sentenced to a reduction to pay grade E-1, a forfeiture of $97.00 pay for 6 months, and 3 months of confinement at hard labor.  On 10 July 1968, the convening authority approved the sentence and ordered it executed.

11.  On 3 September 1968, the convening authority remitted the 7 July 1968 sentence to confinement at hard labor without further action.

12.  On 6 May 1969, a DD Form 458 (Charge Sheet) was completed by the Commander, U.S. Army Special Processing Detachment, Fort Campbell, KY.  The applicant was charged with one specification each of being absent without leave from 4 December 1968 through 7 March 1969 and being disrespectful in language towards his superior NCO.

13.  On or about 6 May 1969, after consulting with counsel, the applicant requested discharge under the provisions of Army Regulation 635-200 (Personnel Separation, Enlisted Separations), chapter 10, for the good of the service – in lieu of trial by court-martial for charges being preferred against him.  He acknowledged he could be discharged under other than honorable conditions and furnished an Undesirable Discharge (UD) Certificate and the result of the issuance of such a discharge with a characterization of under other than honorable conditions (UOTHC).  He waived his rights and elected not to submit a statement in his own behalf.

14.  A Standard Form (SF) 88 (Report of Medical Examination, dated 8 May 1969, stated "There is no reasonable grounds for belief that this individual is or ever has been mentally defective, deranged, or abnormal.  A psychiatric examination is not deemed to be appropriate."  He was found qualified for separation.

15.  On 9 May 1969, the applicant's company commander recommended approval of the applicant's discharge with an UD.  

16.  On 21 May 1969, the separation authority approved the applicant’s request and directed the issuance of an UD and reduction to pay grade E-1.

17.  He was discharged accordingly on 28 May 1969.  He was credited with completing 2 years, 6 months, and 28 days of active service and 173 days of time lost.  His service was characterized as UOTHC and he was issued an UD Certificate.  

18.  Item 41 (Awards and Decorations) of his DA Form 20 (Enlisted Qualification Record) does not list any awards for valor during his service in Vietnam.

19.  On 17 January 1983, the Army Discharge Review Board denied his petition for an upgrade of his UD.

20.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  

   a.  Chapter 10 states a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good the service in lieu of a trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the Soldier was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood he could receive a discharge UOTHC, the adverse nature of such a discharge, and the possible consequences thereof.  The regulation required that the request be forwarded through channels to the general court-martial convening authority.  An UD would normally be furnished to an individual who was discharged for the good of the service.

   b.  Paragraph 3-7a states 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 acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   c.  Paragraph 3-7b states 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.

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 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." 

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 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. 

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 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.  

25.  In view of the foregoing, on 3 September 2014 the Secretary of Defense directed the Service DRBs and Service 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.

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 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 was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu by court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  The separation authority approved his discharge and he was discharged accordingly.

2.  An SF 88 stated there was no reasonable ground for belief that he was or ever had been mentally defective, deranged, or abnormal and a psychiatric examination was not needed.  He acknowledged the reason for his discharge and the type of discharge he could receive and waived his rights.

3.  His contentions were carefully considered.  He did not provide any evidence that he has been diagnosed with PTSD by a competent mental health professional and that PTSD is service-connected.  There is also no evidence of record and he provided none showing PTSD was the causative factor in his misconduct upon his return from Vietnam.  

4.  Given his prior offenses during his period of service in Vietnam (the first one within 2 months of arriving in Vietnam), the pending UCMJ charges, and absent any mitigating factors, his service did not meet the standards of service so meritorious that any other characterization would be appropriate.  He was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  He did not refute the charges and he voluntarily requested to be discharged in lieu of court-martial.  
5.  His administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, there is no basis for granting him the requested relief.

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)                                         AR20150000124



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ABCMR Record of Proceedings (cont)                                         AR20150000124



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