IN THE CASE OF:	  

		BOARD DATE:	  24 February 2015

		DOCKET NUMBER:  AR20150000498 


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.  This case comes before the Army Board for Correction of Military Records (ABCMR) on a remand from the U.S. District Court, District of Connecticut.  The court directs the ABCMR to reconsider the applicant's request for an upgrade of his discharge under other than honorable conditions. 

2.  The applicant filed a complaint in Federal District Court on 3 March 2014.  The Court issued an Order on 13 November 2014.  In its Order, the Court cited the memorandum issued by the Secretary of Defense, dated September 3, 2014, which gave the Secretaries of the Military Departments guidance on the consideration of discharge upgrade applications where the applicant asserts they have post-traumatic stress disorder (PTSD).  The Order states the applicant's action is remanded to the ABCMR so it can be evaluated in accordance with the policy memorandum.  

3.  The applicant provides all arguments and evidence through counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's request for an upgrade of his under other than honorable conditions discharge.

2.  Counsel essentially states:

	a.  During the Vietnam War era, hundreds of thousand of men and women joined the United States military and were deployed to Vietnam.  Many faced difficult, sometimes horrific experiences in the line of duty.  Tens of thousands died, and still more were physically or psychologically wounded.  Injuries, such as PTSD, were not visible, and were not fully recognized by the medical community until 1980.  The applicant was one of those who served in combat while in Vietnam and developed PTSD.  As a result of his then undiagnosed PTSD, he was unable to perform his assigned military duties.  Eventually he received an under other than honorable discharge for misconduct, which can be attributed to PTSD.

	b.  In the decades since his discharge, he has experienced hardships such as homelessness, prolonged unemployment, and severely damaged family and social relationships.  In addition to isolation and impoverishment, he has had to endure the shame of an under other than honorable discharge.  Because of this discharge, he has been ineligible for disability compensation and other benefits his military service would have otherwise given him.

	c.  Medical research has illuminated the causes and consequences of PTSD, and the military now has systems in place to identify and treat the injury.  However, the Army has failed to upgrade the discharges for tens of thousands of Vietnam veterans like the  applicant who have PTSD.  For this reason, the applicant brought this action in an effort to gain relief.

	d.  The applicant voluntarily enlisted in the Regular Army in February 1970 at the age of 17.  He was in Vietnam from January 1971 to December 1971.  He served as a supply clerk, and during the course of performing his duties, he suffered many traumatic events which caused PTSD.

	e.  His unit's location in Vietnam was the target of regular shelling.  As a result, he lived in a constant state of preparedness to find cover in the event of incoming fire.

	f.  One of his duties was to identify, sort, and bag bodies and body parts brought to his location.  On several occasions he processed the bodies of friends he had made during the course of his military service.

	g.  He was responsible for delivering supplies to the perimeter of his firebase.  On one occasion, as the applicant took cover behind a tree to eat breakfast, a newly arrived lieutenant stood up and lit a cigarette.  Before anyone could warn him to get down, he was shot in the head by a sniper, and portions of the lieutenant's brain and skull fell into the applicant's breakfast.

	h.  For the remainder of his tour in Vietnam, the applicant found it impossible to stop thinking about these incidents, struggled to sleep, and had difficulty performing his duties.  On his return to the United States, he began to have nightmares and insomnia.  He turned to self-medication with alcohol and drugs.  He knew something was wrong and tried to get medical help.  Although white Soldiers received medical assistance, the applicant, who is African-American, was denied access to either a doctor or psychologist.  He eventually left his unit without authorization, and remained absent until his arrest in November 1973.

	i.  On his return to military control, he was told he would face a court-martial.  Instead, an officer handed him papers to sign and told him he would be discharged.  No one explained what this discharge meant or gave him the opportunity to consult with counsel.  According to his records, the applicant received an under other than honorable discharge in lieu of a court-martial.

	j.  The applicant continued to struggle with nightmares and substance abuse.  In 2011, a psychiatrist with the Department of Veterans Affairs (VA) diagnosed him with PTSD which resulted from his deployment in Vietnam.  Until that point, the applicant did not know his problems were caused by a recognized ailment.

	k.  The applicant applied to the ABCMR for a discharge upgrade in 2012, but his application was denied.  He had thereby exhausted his administrative remedies and remains generally disqualified from receiving VA benefits.

3.  Counsel provides:

* DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552)
* Federal District Court decision to remand
* letter from ABCMR regarding reconsideration decision
* Secretary of Defense memorandum
* two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Class Action complaint
* three affidavits
* court-martial charges
* VA psychiatry outpatient evaluation
* VA Form 10-1086 (VA Research Consent Form)
* letter from ABCMR regarding decision on initial application
* Army Regulation 15-185 (Army Board for Correction of Military Records)
* extract from Army Review Boards Agency website regarding PTSD and discharge upgrades
* four articles about PTSD
* extract of a VA webpage which discusses PTSD 
* extract from American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, third edition
* letter of appreciation
* five DA Forms 2627-1 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)
* extract from American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, fifth edition

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 AR20120013491, on 12 February 2013, and in Docket Number AR20130019517, on 23 September 2014.

2.  The applicant enlisted for a period of three years in the Regular Army on 16 February 1970.  He completed his initial training and was awarded military occupational specialty 76A (Supplyman).  On 25 October 1970, he was honorably discharged for immediate reenlistment.  He reenlisted on 26 October 1970 for a period of three years.  The highest rank attained was 
specialist four/E-4.

3.  He served in Vietnam from 9 January 1971 to 15 December 1971.

4.  His records show he received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on five occasions for:

* being absent without leave (AWOL) from 8 June 1972 to 27 June 1972; punishment included reduction in rank/grade to private first class/E-3
* sleeping on sentinel post
* negligently suffer Government funds to be lost; punishment included reduction in rank/grade to private/E-2
* two AWOL periods (9 1/2 hours and 8 hours, respectively); punishment included reduction in rank/grade to private/E-1
* AWOL from 1 December 1972 to 5 December 1972 and failure to repair 

5.  He went AWOL on 19 January 1973 and was returned to military control on 
22 November 1973.  In December 1973, charges were preferred against him for the AWOL period.

6.  His record is void of the specific facts and circumstances surrounding his discharge action.  However, his record contains a DD Form 214 that shows on 
12 February 1974 he was discharged 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 had served a total of 2 years, 10 months, and 2 days of creditable active service with 419 days of time lost.

7.  There is no evidence in his record showing he was diagnosed with any behavioral health condition or alcohol/drug abuse prior to his discharge on 12 February 1974.

8.  There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within that board's 15-year statute of limitations.

9.  Counsel provides:

	a. An affidavit from the applicant wherein he states:

* he initially served honorably for a period of 8 months and 10 days
* he reenlisted to go to Vietnam and his service ended with an under other than honorable discharge
* he spent 11 months in Vietnam as a supply clerk on a firebase
* his firebase was the target of constant shelling and he lived in a state of constant readiness, prepared to find cover if need be
* his duties included identifying, sorting, and bagging bodies, some of whom were friends he had made during his military service
* as supply clerk he delivered supplies to various parts of the firebase perimeter
* sniper activity was common at some locations; as such, much of his work was done at night to avoid detection by snipers
* on one occasion he sought cover behind a tree while eating breakfast
* a newly assigned first lieutenant stood up and lit a cigarette
* before he could be told to get down, he was shot in the head and killed by a sniper
* pieces of his skull and brain landed in the applicant's breakfast
* he found it impossible to stop thinking about the incidents he witnessed
* by the time he returned to the United States, he was having nightmares, his drinking had gotten worse, and he was experimenting with drugs
* he repeatedly put his name on the sick call list, but, while white Soldiers were able to see doctors, he was denied the opportunity
* on January 19, 1973 he left his unit without authorization and went home
* he was eventually apprehended on November 22, 1973, and returned to military control
* he was told he would face a court-martial but an officer handed him some papers and told him to sign
* he never received any explanation and was denied access to an attorney
* he signed the papers and was discharged
* he assumed his discharge resulted from a court-martial, but he now understands the papers he signed indicated he agreed to a discharge in lieu of court-martial
* since leaving the service, he has continued to have nightmares and, for much of his life, has turned to drugs and alcohol to combat the nightmares
* all this eventually led to the breakup of his family, estrangement from his children, and an inability to keep steady employment
* recently he has begun to put his life back together; he stopped taking drugs in 2007 and stopped alcohol use in 2009
* he currently lives in a veterans' residence, has employment, and is receiving psychiatric treatment
* on August 26, 2011, a VA psychiatrist diagnosed him with PTSD and it is now clear his problems stemmed from PTSD

	b.  A letter from a licensed master social worker/credentialed alcohol and substance abuse counselor, dated 11 February 2012, who writes:

* the applicant is a veteran who served in Vietnam, was exposed to Agent Orange as well as numerous combat trauma
* he is currently receiving readjustment counseling services, including weekly psychotherapy
* he has been diagnosed with PTSD
* he receives medication from a doctor at the VA Mental Health Outpatient Clinic

	c.  A document titled Psychiatry Outpatient Evaluation, dated 26 August 2011, which states:

* 59 year old black male, unemployed and undomiciled with history of polysubstance abuse
* denies depressed mood; no psychotic or manic symptoms
* reports nightmares and anxiety associated with tour in Vietnam
* denies history of suicide attempts
* Axis I diagnosis is PTSD and polysubstance abuse (in remission)
* Axis II diagnosis is personality disorders/traits:  deferred
* treatment plan is psychotropic medications, PTSD groups, regular medical follow-up, refer to psych as needed, and assist with housing and benefits

	d.  A VA Form 10-1086 which shows the applicant has consented to participate in a voluntary research program studying whether a medication called prazosin can help reduce nightmares and other sleep problems in people who have PTSD.

	e.  An affidavit from the applicant's sister-in-law which essentially describes the negative effects PTSD has had on the applicant and his family.

	f.  four articles about PTSD which essentially describe PTSD, its deleterious effect on its victims and their families, and strategies for identification and possible treatment.  The fourth article is from the Military Law Review, Volume 204, Summer 2010.  It provides an in-depth discussion of how current law and military policy address PTSD and suggests changes that should be made.

	g.  An extract from the VA website which discusses PTSD.

	h.  A letter of appreciation, issued by Headquarters , XVIII Airborne Corps and Fort Bragg, dated 31 May 1972 which thanks the applicant for his work done for Exercise Exotic Dancer V.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	a.  Paragraph 1-14 of the regulation in effect at the time stated that when a member was to be discharged under other than honorable conditions, the convening authority would direct an immediate reduction to the lowest enlisted grade.

	b.  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.

	c.  Paragraph 3-7b states 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. 

11.  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."

12.  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.

13.  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
14.  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.

15.  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.

16.  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?

17.  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’s record is void of the complete facts and circumstances that led to his voluntary discharge.  However, his record contains a DD Form 214 that shows he was discharged on 12 February 1974 under the provisions of chapter 10 of Army Regulation 635-200, in lieu of a court-martial. 

2.  His DA Form 20 (Enlisted Qualification Record) notes a series of accountability offenses and changes in duty status which buttress the applicant's claim the misconduct for which he was separated involved AWOL.

3.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200 required the applicant to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by a court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no information that would indicate the contrary.  Further, it is presumed that the applicant’s discharge accurately reflects his overall record of service.

4.  No evidence has been presented which shows the applicant was not properly and equitably discharged in accordance with the regulations in effect at the time and that all requirements of law and regulations were not met or that the rights of the applicant were not fully protected throughout the separation process.  Absent such evidence, regularity must be presumed in this case.

5. At the time of the applicant's 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.  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.
 
6.  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.  His AWOL offenses are consistent with the avoidance characteristic of PTSD.

7.  It is concluded that the PTSD conditions were a causative factor in the misconduct that led to the discharge.  After carefully weighing that fact against the severity of the applicant's misconduct, there is sufficient mitigating evidence to warrant upgrading the characterization of the applicant's service to a general discharge under honorable conditions.  Because he had already been reduced to private/E-1 as a result of nonjudicial punishment prior to initiation of separation action, a change in rank/grade would not be appropriate.  This action would not change the narrative reason for his separation or negate his lost time. 

BOARD VOTE:

____X____  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant an amendment of the ABCMR's decisions set forth in Docket Number AR20120013491, on 12 February 2013, and in Docket Number AR20130019517, on 23 September 2014.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by re-issuing the applicant's DD Form 214 for the period ending 12 February 1974 to show the characterization of service as "General, Under Honorable Conditions."



      ____________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)                                         AR20150000498





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ABCMR Record of Proceedings (cont)                                         AR20150000498



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