IN THE CASE OF:	  

		BOARD DATE:	  26 March 2015

		DOCKET NUMBER:  AR20150001167 


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 his undesirable discharge (UD) discharge be ungraded to an honorable discharge (HD) 

2.  The applicant states the actions that led to his discharge were related to 
post-traumatic stress disorder (PTSD).  He believes he was "under a type of PTSD" due to the constant idea of a potential for deployment of his armored unit to Vietnam.  After each infraction his depression worsened due to the unjust and unfair treatment he received from his commanders.  His PTSD is also the cause of his post-service misconduct, alcohol problems, and family problems.  He alleges that the marijuana found in his locker belonged to his former roommate and he never tested positive for use of marijuana.

3.  The applicant provides copies of a 5-page personal statement, 7-page PTSD screening report, the 3 September 2014 Department of Defense (DoD) PTSD Upgrade instruction memorandum, an outline of the Vietnam War, 20 pages of annotated service records, a 5-page article about a marijuana test kit, 4-page article about false positive marijuana testing, and three letters of appreciation.

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.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-15b states if the ABCMR receives a request for reconsideration more than 1 year after the ABCMR’s original decision or after the ABCMR has already considered one request for reconsideration, then the case will be returned without action and the applicant will be advised the next remedy is appeal to a court of appropriate jurisdiction.

3.  On 26 January 2012, the ABCMR denied the applicant's request for an upgrade of his characterization of service.

4.  However, recent changes in policy direct 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 request for an upgrade with specific consideration as to whether or not the service member was suffering from PTSD and if that condition mitigated their misconduct.

5.  Since the applicant is contending he was suffering from PTSD at the time of his separation, in accordance with the revised PTSD standards, it is appropriate to grant the applicant an exception to reconsideration policy and afford him a de nova review at this time.

6.  A Police Record Check shows that prior to his enlistment the applicant – 

* had his driver's license suspended for speeding on 9 April 1969
* was cited for a noise violation by operating a motor vehicle with an improper muffler on 13 March 1971
* was at fault in a nonfatal vehicle accident on 18 March 1971
* was cited for speeding on 25 May 1971

7.  On 8 July 1971, the applicant enlisted in the Regular Army, completed training, and was awarded military occupational specialty 63C (Tracked Vehicle Mechanic).  Upon completion of training the applicant was assigned to duty in Germany.  

8.  The applicant's records contains the following reports of negative counseling –

* 17 April 1973, disobeying an order and sleeping late
* 5 November 1973, for being absent without leave (AWOL) on 1 November 1973
* 19 November 1973 for failure to properly perform his duties by being "slow, lazy and apathetic" 
* 26 November 1973, for revocation of his pass and off-post privileges

9.  The applicant's records contains five Military Police Reports as follows –

* 24 October 1972, for speeding resulting in an accident
* 6 January 1973, for operating a defective motor vehicle without insurance 
* 8 February 1973, for suspension of his driver's privileges for operating an unregistered vehicle
* 10 May 1973, for possession of marijuana 
* 27 October 1973, for attempted larceny

10.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, as follows on:

* 10 December 1972, for failure to go to his place of duty
* 10 January 1973, for being AWOL
* 19 July 1973, for possession of marijuana 
* 15 November 1973, for being AWOL
* 27 December 1973, for attempted larceny and destruction of private property 

11.  On 18 January 1974, the unit commander notified the applicant he was initiating separation action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 13-5a for unfitness due to frequent incidents of a discreditable nature and an established pattern of shirking.  The unit commander stated the reason for the action was the applicant’s substandard military appearance and his lack of regard for his superiors or regulations governing the U.S. Army.  The commander recommended that the requirements for further counseling and rehabilitation be waived.

12.  The applicant consulted with legal counsel and he was advised of the basis for the contemplated separation action and of its effects and of the rights available to him.  He waived his right to an administrative separation board, even in the event that a UD was recommended.  The applicant also acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if a less than honorable discharge was issued to him.  He acknowledged he understood as the result of the issuance of a UD, he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  The applicant elected not to submit a statement in his own behalf.

13.  On 18 January 1974, the separation authority approved the applicant's separation for unfitness and directed the issuance of an UD Certificate.  

14.  On 13 February 1974, the applicant was discharged with a UD.  He had 2 years, 7 months, and 6 days of creditable active service.  There is no indication of receipt of any personal awards, decorations, or citations.

15.  A review of the applicant's available service medical records failed to show any complaints or treatment for any mental health related complaints or concerns.

16.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

17.  The PTSD online screening report provided by the applicant states the applicant answered some questions consistent with symptoms of PTSD.  It was recommended he see a qualified mental health professional.  There is no documented traumatic stressor referenced on the form nor is there a proper diagnosis of PTSD.

18.  The outline of the Vietnam War provided by the applicant is the barest of outlines.  The applicant does not explain how this material pertains to his service in Germany or to his request case.

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-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."  

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, 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.

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 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 causal relationship of symptoms to the misconduct.

26.  Army Regulation 635-200, sets forth the purpose and policies for enlisted personnel separations.  

   a.  Chapter 3 outlines the criteria for characterization of service as follows:

		(1)  Paragraph 3-7a states that an HD is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service has met the standards of acceptable conduct and performance of duty.  

		(2)  Paragraph 3-7b state that a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.  

		(3)  Paragraph 3-7c states that a under other than honorable conditions discharge is issued when there are one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.  

	b.  Chapter 13, as in effect at the time, established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  It provided for the separation of individuals for unfitness for frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, a UD was normally issued.

DISCUSSION AND CONCLUSIONS:

1.  Recent changes in policy require that Soldiers who suffer from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible recharacterization of their overall service.  However, in order to receive this consideration there must first be a properly made diagnosis of PTSD.

2.  The applicant's record contains no documentation of the occurrence of a traumatic event during his period of service that meets the criteria of being a stressor.  His assertion that he developed PTSD from being fearful of a possible transfer to a combat zone does not meet the criterion for being a stressor.  

3.  Additionally, the applicant has not provided and the record does not contain any evidence that he has been afforded a diagnosis of PTSD by any competent medical authority.  The PTSD screening test states only that he answered some questions that warranted further evaluation for a diagnosis of PTSD.

4.  Without a formal diagnosis of PTSD, no consideration should be given to the applicant's contention that he was or is suffering from PTSD and that it was a mitigating factor in the misconduct that led to his discharge.

5.  Without a finding that the applicant has PTSD, the applicant's case must be considered based solely on the incidents of record.  

6.  There is no evidence in the available records to demonstrate that the applicant was the victim of unfair, unjust, or improper treatment by his command.  

7.  The applicant has a history of misconduct prior to entry onto active duty of a similar nature to some of the incidents that led to his discharge.  

8.  Combining his negative counseling statements, military police reports, and NJP's documents a pattern of misconduct warranting the discharge he received. 

9.  The applicant's discharge proceedings 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.

10.  Therefore, there is an insufficient basis upon which to upgrade his discharge to a GD or an HD.


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)                                         AR20150001167



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ABCMR Record of Proceedings (cont)                                         AR20150001167



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