IN THE CASE OF:	  

		BOARD DATE:	  26 February 2015

		DOCKET NUMBER:  AR20150000561 


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 undesirable discharge (UD).

2.  The applicant states he volunteered and was a good Soldier except for one nonjudicial punishment (NJP).  He served faithfully for five years and did two tours in Vietnam.  His first tour was cut short because of vision problems and after his second tour he was a very changed person.  He could no longer be a good soldier, he trusted no one, and just wanted to be left alone.  He has recently been diagnosed as having post-traumatic stress disorder (PTSD).  He is not requesting an upgrade for the benefits since he receives 50% disabled compensation from the Department of Veterans Affairs (VA).  He is tired of the shame and guilt associated with his discharge.  All he asks is that his country see him as the soldier he was.  He wants to fill that gap in his soul that he has carried for all these years.

3.  The applicant provides no supporting documentation.

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's available record contains limited information related to his first enlistment and incomplete information pertaining to his second enlistment.  

3.  He enlisted in the Regular Army on 7 December 1965, completed training, and was awarded the military occupational specialty 76Q (Repair Parts Specialist).  He was honorably discharged with an immediate reenlisted on 19 October 1967.  He was promoted to specialist five (SP5)/E-5 on 5 March 1968.

4.  The available record shows foreign service in Korea, twice in Germany and twice in Vietnam.  The exact dates, except for his second tour in Vietnam, are not of record.  During his second enlistment his service in Vietnam is shown as from 4 July 1970 through 25 June 1971.

5.  His DA Form 20 (Enlisted Qualification Record) at item 41 (Wounds) shows he was wounded in the back; however the date of his wounding is not of record.

6.  Following his second tour in Vietnam, he was reassigned to duty in Germany.  The applicant was absent without leave (AWOL) on two occasions, 20 September 1971 to 7 December 1971 and 15 December 1971 to 26 April 1972.

7.  The applicant was apprehended by the Federal Bureau of Investigation (FBI) and returned to military control on or about 31 May 1972.  Court-martial charges were preferred for the two periods of AWOL.

8.  On June 1972, after consulting with counsel the applicant requested discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.

9.  The discharge authority approved the discharge request and directed the applicant be reduced to pay grade E-1 and receive a UD.

10.  On 12 October 1972, the applicant was discharged with a UD.  He had a total of 6 years, 3 months, and 6 days of creditable active duty service with 212 days of lost time.  His awards are shown as the National Defense Service Medal, Republic of Vietnam Campaign Medal with Device (1960), Vietnam Service Medal, and one overseas service bar.  

11.  The applicant has applied for and been denied an upgrade of his characterization of service on two prior occasions, 16 February 2011 and 30 August 2012. 

12.  Documentation submitted with a previous request for Board consideration shows the VA granted the applicant service connection disability benefits for PTSD based on his first period of service but denied him any benefits for any conditions arising from his second period of service based on his UD for that period of service. 

13.  Recent changes in policy directs that Vietnam Era veterans who have received a discharge under conditions other than honorable and who have received a post-service diagnosis of PTSD are to receive a de nova review of their requests for an upgrade.  

14.  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-Ill 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."  

15.  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.
16.  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 reexperienced 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.

17.  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.

18.  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.  

19.  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?

20.  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's discharge proceedings, for misconduct, were conducted in accordance with law and regulations in effect at the time.  The characterization of the applicant's discharge was commensurate with the reason for discharge and overall record of military service in accordance with the governing regulations in effect at the time.

2.  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.

3.  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.

4.  Subsequent to his discharge, medical evidence shows the applicant was diagnosed with PTSD/PTSD-related symptoms by a competent mental health professional.  He was wounded during his second tour of duty in Vietnam and was granted VA benefits based on his first tour in Vietnam.  Therefore, it is reasonable to believe the applicant's PTSD condition existed at the time of second discharge.

5.  The applicant's record is void of any serious previous misconduct during his second period of service and the misconduct of going AWOL appears to have been the result of an uncharacteristic lapse in judgment.

6.  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 and restoring his rank/grade to SP5/E5 effective 5 March 1968.

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 a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant's DD Form 214 for the period ending 12 October 1972 to show a characterization of service of "General, Under Honorable Conditions" and his rank/grade as SP5/E5 with an effective date of 5 March 1968.



      _______ _   _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)                                         AR20150000561



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ABCMR Record of Proceedings (cont)                                         AR20150000561



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