BOARD DATE:	  19 March 2015

		DOCKET NUMBER:  AR20150001136 


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 due to post-traumatic stress disorder (PTSD).

2.  The applicant states he had mental problems after Vietnam and PTSD was not recognized at the time of his discharge.   

3.  The applicant provides a doctor's statement, self-authored statement, and a statement from his spouse, dated 25 June 2009.

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 31 March 1971 and he held military occupational specialty (MOS) 11C (Indirect Fire Infantryman).  He was promoted to the rank/grade of private first class (PFC)/E-3 on 31 November 1971.  He served in Vietnam from 26 September 1971 to 15 April 1972 while assigned to Company E, 2nd Battalion, 327th Infantry Regiment.

3.  On 18 January 1972, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for possessing marijuana.  The punishment imposed included reduction to private (PV2)/E-2.

4.  On 24 May 1972, he was assigned to Company B, 2nd Battalion, 22nd Infantry, Fort Carson, CO.  He received NJP, under the provisions of Article 15, UCMJ on:

* 10 August 1972, for absenting himself from his place of duty
* 25 August 1972, for absenting himself from his place of duty

5.  On 13 September 1972, he was assigned to Company B, 1st Battalion, 22nd Infantry, Fort Carson.  He received NJP, under the provisions of Article 15, UCMJ on:

* 18 October 1972, for two specifications of failing to go to his place of duty
* 20 October 1972, for altering a military identification (ID) card

6.  On 14 November 1972, he was assigned to Company A, 1st Battalion, 22nd Infantry.  He received NJP, under the provisions of Article 15, UCMJ on:

* 22 December 1972, for failing to go to his place of duty
* 2 April 1973, for failing to obey a lawful order; the punishment imposed included reduction to private (PVT)/E-1

7.  On 2 May 1973, he was notified by his immediate commander that discharge action was being initiated against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, for unfitness

8.  On 2 May 1973, he acknowledged notification of the proposed discharge action.  On 10 May 1973, he consulted with legal counsel and was advised of the basis for the contemplated separation action, the possible effects of a discharge under other than honorable conditions (UOTHC), and of the procedures and rights available to him.  He further acknowledged he understood if he were issued a discharge UOTHC he may be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life.  He waived his right for consideration of his case before a board of officers. 
9.  On 5 and 7 June 1973, respectively, his immediate and senior commanders recommended approval of the discharge action.

10.  On 3 July 1973, the separation authority approved the discharge action and directed the issuance of an Undesirable Discharge Certificate.  On 13 July 1973, he was discharged accordingly.

11.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 13, for unfitness (separation program number 28B), with an UOTHC characterization of service.

12.  His DD Form 214 shows he was awarded or authorized the:

* National Defense Service Medal
* Combat Infantryman Badge
* Vietnam Campaign Medal with 1960 Device
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)
* Vietnam Service Medal with one bronze service star
* one overseas bar

13.  His DA Form 20 (Enlisted Qualification Record) shows he received "excellent" conduct and efficiency ratings throughout his service until his assignment to Fort Carson when he received "unsatisfactory" ratings.

14.  The applicant provides:

	a.  A self-authored statement, dated 12 October 2008, wherein he stated, in part, he served in with honor in Vietnam, never disobeyed an order, and received the Combat Infantryman Badge.  After Vietnam, he began to have difficulties.  He was only able to sleep for 2 or 3 hours at a time, and began having nightmares and severe panic attacks.  He started to self medicate with alcohol and drugs and as a result received Article 15's for being late to formation.  There was difficulty finding things for the Soldiers to do while awaiting discharges, the boredom began to drive him crazy, and the nightmares and panic attacks continued.  After about 14 months, he couldn't cope with much more and was so desperate he accepted the offer of an undesirable discharge.  In 1992, after many years of sleepless or nightmare filled nights, he began to see a psychiatrist who put him on medication so he would be able to cope.

	b.  A statement, dated 20 November 2008, wherein Dr. RR stated the applicant had been under his psychiatric care for over 12 years for treatment of severe recurrent anxiety.  He provided psychiatric evaluation and psychiatric medication management.  In a review of his history, it was clear that he suffered from PTSD arising out of his experience serving in the Army in combat in Vietnam.  His symptoms included nightmares, re-experiences of traumatic Vietnam events, and recurrent panic attacks.  

15.  On 27 January 1975, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.  On 9 June 2009 and 17 December 2009, the ABCMR denied his requests for an upgrade of his discharge to a general discharge.

16.  Army Regulation 635-200, then in effect, set forth the policy and prescribed the procedures for administrative separation of enlisted personnel.  Paragraph 13-5(a) provided for separation for unfitness, which included frequent incidents of a discreditable nature, drug abuse, shirking, failure to pay just debits, and failure to support dependents.  An undesirable discharge was normally issued.

17.  Army Regulation 635-200, 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.

18.  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.

19.  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." 

20.  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.

21.  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, (one required) as follows:

		(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. 

22.  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.  

23.  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.

24.  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?

25.  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 discharge proceedings, for unfitness, were conducted in accordance with law and regulations in effect at the time.  The characterization of his 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 his 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.  A review of the applicant's record shows that he was subjected to the ordeals of war while serving in the Vietnam.  Of particular note is that he held MOS 11C and his award of the Combat Infantryman Badge confirms he personally participated in combat.  

5.  The evidence of record shows although he received NJP on one occasion while in Vietnam for possessing marijuana he received "excellent" conduct and efficiency ratings throughout his service until his assignment to Fort Carson.

6.  His record shows less than 3 months after returning from Vietnam, he received two Article 15s for failing to be at his place of duty; these were the first of a total of six Article 15's he received for failing to be at this place of duty on several occasions, altering an ID card, and disobeying a lawful order.

7.  Subsequent to these experiences, medical evidence shows he was diagnosed with PTSD by a competent mental health professional that was a result of his experience serving in combat in Vietnam.  Therefore, it is reasonable to believe the applicant's PTSD condition existed at the time of discharge. 
8.  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.

9.  An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law and 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 meritorious.  Based on his extensive history of NJP, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

BOARD VOTE:

___X_____  __X______  ___X__  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

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 re-issuing the applicant's DD Form 214 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)                                         AR20150001136





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ABCMR Record of Proceedings (cont)                                         AR20150001136



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