IN THE CASE OF:	  

		BOARD DATE:	  19 March 2015

		DOCKET NUMBER:  AR20150001348 


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 reconsideration of his previous request to upgrade his discharge.

2.  The applicant states his request is based on the 3 September 2014 letter written by the Secretary of Defense where supplemental guidance was given on cases involving post-traumatic stress disorder (PTSD).  

3.  The applicant provides:

* two self-authored statements
* his DD Form 214 (Certificate of Release or Discharge from Active Duty), as amended by the Army Board for Correction of Military Records (ABCMR)
* letter of support
* letter from the Department of Veterans Affairs (VA), dated 22 April 2011, notifying the applicant of their recognition of his PTSD as being service-connected
* Order of Merit
* two letters with attachments from the ABCMR

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in previous considerations of the applicant's case by the ABCMR in Docket Number AR20060007600 on 1 February 2007.
2.  The applicant submitted an initial application, which was denied, and multiple requests for reconsideration, none of which were considered by the Board.

	a.  The applicant argues, in effect, the 3 September 2014 letter written by the Secretary of Defense gives him grounds for reconsideration of his previous request.

	b.  In view of the circumstances of this case, and as an exception to the policy, this application for reconsideration warrants consideration by the Board.

3.  The applicant's records show he was inducted into the Army of the United States on 12 January 1971, and he held military occupational specialty (MOS) 12B (Combat Engineer).  His DA Form 20 (Enlisted Qualification Record) shows he was promoted to specialist four (SP4)/E-4 on 22 February 1972 (though it notes this date is unverified).  He served in Vietnam from on or about 14 August 1971 to 12 May 1972.

4.  Available records indicate the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions:

* on 12 May 1971, for being absent without leave (AWOL) from 1 April to 7 May 1971
* on 30 November 1972, for being AWOL from 25 September to 13 November 1972, his punishment included reduction in rank/grade to private first class (PFC)/E-3, suspended until 29 May 1973

5.  On 7 February 1973, the applicant departed his Fort Carson, CO unit in an AWOL status and, on 12 March 1973, he was dropped from the rolls as a deserter.  He was returned to military control on 1 May 1973 and assigned to the U.S. Army Personnel Control Facility at Fort Ord, CA.

6.  On 4 May 1973, the applicant's commander preferred charges against him for being AWOL from 7 February to 1 May 1973.

7.  On 11 May 1973, the applicant consulted with counsel.  Subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

8.  In his request for discharge, he indicated he:

* was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person 
* understood if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration
* understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he submitted a statement in his own behalf which essentially expressed his desire to accept a discharge

9.  On 23 May 1973, the separation authority approved his request for discharge in lieu of court-martial with service characterized as under other than honorable conditions (UOTHC).  On 30 May 1973, he was discharged accordingly.

10.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, with service characterized as UOTHC, and the issuance of an Undesirable Discharge Certificate.  This form, as amended by a DD Form 215 (Correction to DD Form 214), shows he completed 1 year, 11 months, and 2 days of active creditable service.  He had a total of 168 days of lost time.  He was awarded or authorized:

* National Defense Service Medal
* Vietnam Service Medal with three bronze service stars
* Republic of Vietnam Campaign Medal with Device (1960)
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Expert Marksmanship Qualification Badge with Rifle Bar (M-16)

11.  He applied to the Army Discharge Review Board for an upgrade of his discharge and, on 10 March 1980, was informed his request had been denied.

12.  On 1 February 2007, in ABCMR Docket Number AR20060007600, the Board denied the applicant's request for an upgraded discharge stating the applicant's record of service was insufficiently meritorious to warrant an upgrade.

13.  The applicant subsequently requested reconsideration on five occasions between 2007 and 2011.  In each case, his requests were administratively closed.

14.  The applicant provides two self-authored statements:

	a.  The first statement, dated 7 November 2014, essentially indicates:

* he was diagnosed with PTSD in 2011
* a record of this diagnosis is already on file with the ABCMR from his previous applications
* Secretary Hegel's letter, dated 3 September 2014, calls on boards for correction of military records to carefully consider every petition based on PTSD
* he has been sober now for 14 years
* he has earned the Life Member Order of Merit from the Republican National Committee

	b.  The second statement, dated 16 January 2015, offers details of his periods of AWOL:

* his MOS was changed to cook; he was unable to reverse this and he went AWOL for 30 days
* after turning himself in he was sent to Fort Carson and then to Fort Leonard Wood, MO for training as a Combat Engineer
* he was sent to Vietnam and, 10 months later, while still there, he got hurt
* he was sent to Letterman Hospital for treatment of a broken jaw; he wanted to stay in Vietnam but was told by his doctors he could not return
* after healing, he was given rest and recuperation leave, and he was picked up for driving under the influence, which led to another 26-day period of AWOL
* he contacted his new unit and upon his release he was picked up by the military police who got him a plane ticket for travel to Fort Carson
* his third instance of AWOL occurred when he got drunk one night; he started drinking heavily after leaving Vietnam
* he has been sober for 14 years

15.  The applicant provides a letter of support from a Master of Social Work, Licensed Clinical Social Worker at a Veterans Center in Fairbanks, AK.  She affirms the applicant's diagnosis of PTSD and states she believes the applicant deserves favorable consideration of his request for an upgrade of his discharge.  She cites examples of the positive changes he has made in his life, the degree to which he helps other veterans, and notes he has been sober for over a decade.

16.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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 UOTHC discharge 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 UOTHC, 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. 

17.  Army Regulation 27-10 (Military Justice) prescribes policy and procedure for the administration of military justice.  It states, in pertinent part, a suspended punishment may be vacated by a commander where it is determined the Soldier committed misconduct during the suspension period.  The commander is not bound by formal rules of evidence before a courts-martial and may consider any matter, including unsworn statements, believed to be relevant.  There is no appeal from a decision to vacate a suspension.

18.  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."

19.  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.

20.  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.

21.  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 issued a UOTHC discharged 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.  

22.  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.


23.  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?

24.  Although the DOD acknowledges that some Soldiers who were administratively discharged UOTHC may have had an undiagnosed condition of PTSD at the time of their discharge, it is 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 contains a DD Form 214 that shows he was discharged on 30 May 1973 under the provisions of chapter 10 of Army Regulation 635-200, in lieu of a court-martial.  He had been facing court-martial charges for being AWOL.

2.  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.

3.  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.

4.  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.
 
5.  The applicant provides evidence that he has been suffering from PTSD with a history of alcohol abuse.  He contends the PTSD is a result of his combat experiences.  His AWOL offenses are consistent with the avoidance characteristic of PTSD.

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 reinstating his rank/grade to PFC/E-3.  Because the date of rank for his reduction from SPC/E-4 to PFC/E-3 would have been effective the date his last period of AWOL began, his reinstated date of rank should be as of this date (7 February 1973).  Additionally, this action would not change the narrative reason for his separation or negate his lost time. 

BOARD VOTE:

________  ___X____  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ________  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

Notwithstanding the staff DISCUSSION AND CONCLUSIONS the Board determined that there was insufficient evidence to change the decision set forth in Docket Number AR20060007600 on 1 February 2007.  The majority of the Board determined that the applicant established a pattern of misconduct prior to going to Vietnam and did not feel the misconduct was due to PTSD.  As such, there is no 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)                                         AR20150001348



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ABCMR Record of Proceedings (cont)                                         AR20150001348



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