IN THE CASE OF:	  

		BOARD DATE:	  16 April 2015

		DOCKET NUMBER:  AR20150001682 


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 to a general discharge under honorable conditions without reference to patterns of misconduct.

2.  The applicant states:

* his behavior was more likely than not related to undiagnosed and untreated post-traumatic stress disorder (PTSD), a condition that was not recognized as a treatable condition
* he was placed in a racially-tense environment with Soldiers who were not combat veterans
* he responded by flight
* his Department of Veterans Affairs (VA) benefits are being revoked due to an undesirable discharge and he can no longer receive VA treatment for PTSD
* he is one of many veterans diagnosed with PTSD while having honorable service in Vietnam
* he had the opportunity to reenlist prior to the end of his first term of service and he accepted
* he reenlisted during the time when reenlistments were down and pressure was up to reenlist
* he was never told of any conditional discharge and he received an honorable discharge on 7 August 1969

3.  The applicant provides copies of three VA Rating Decisions.
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 October 1967.

3.  On 12 March 1968, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) from on or about 10 March to 11 March 1968.

4.  He served in Vietnam during the period 5 April 1968 through 4 April 1969.  He was promoted to the rank/grade of specialist five (SP5)/E-5 on 31 January 1969.

5.  On 7 August 1969, he was honorably discharged for immediate reenlistment and he reenlisted on 8 August 1969.

6.  Headquarters, Special Processing Battalion (Provisional), Special Court-Martial Order Number 9, dated 6 January 1970, shows he pled guilty and was found guilty of being AWOL from on or about 2 to 28 October 1969 and from on or about 17 to 27 November 1969.

7.  A DA Form 3836 (Notice of Return to U.S. Army Member from Unauthorized Absence) shows he was reported as being AWOL on 27 September 1970.  On 6 November 1975, he was returned to military control.

8.  His complete discharge package is not available for review.

9.  A letter from the Post Commander, Headquarters, Fort Meade, MD, dated 22 January 1976, subject:  Discharge for the Good of the Service under the Provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), shows the post commander approved the applicant's discharge for the good of the service.  He directed the applicant's reduction to the lowest enlisted grade and issuance of an Undesirable Discharge Certificate.
10.  On 13 February 1976, he was discharged under conditions other than honorable.  His DD Form 214 shows he completed 1 year, 1 month, and 24 days of creditable active service during the period 8 August 1969 through 13 February 1976.  He also had 1,139 days of lost time and 819 days were lost subsequent to his normal expiration term of service date.

11.  On 22 October 1981, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

12.  The applicant provided three VA Rating Decisions as follows:

	a.  The VA Rating Decision, dated 16 March 2013, shows a 30-percent service-connected disability rating for PTSD and a 10-percent disability rating for service-connected ischemic heart disease associated with herbicide exposure.

	b.  The VA Rating Decision, dated 9 October 2014, shows the VA erroneously granted service connection for his PTSD and his ischemic heart disease.  The VA proposed to sever his service connection because he did not have a character of discharge requisite for service connection.  This decision further stated:

		(1)  The decision, dated 16 March 2013, was granted on the basis of the applicant having an honorable period of service from 31 October 1967 to 13 February 1976.  His period of service from 31 October 1967 to 13 February 1976 was dishonorable for VA purposes.

		(2)  An individual who enlisted or reenlisted before completion of active service can establish eligibility to VA benefits if he or she satisfactorily completed the period of active service for which he or she was obligated at the time of entry.  The satisfactory completion of one contracted period of enlistment while serving on subsequent contracted period of service under a new enlistment is considered a conditional discharge.

		(3)  The applicant originally enlisted for 3 years of service; however, a conditional discharge was not issued because he was AWOL during the time his enlistment would have been completed.

		(4)  The applicant was advised of this decision on 26 December 1983.

		(5)  The proposal, if carried out, would server service connection for PTSD and ischemic heart disease no earlier than 1 March 2015 as there was a statutory bar to VA benefits for any claimant found to be AWOL for more than 180 days.

	c.  The VA Rating Decision, dated 16 December 2014, shows a letter was sent to him on 10 October 2014 advising him of his due process rights and offering him the opportunity to present evidence in response to the proposed severance of his service connection on 1 March 2015.  As of 16 December 2014, the applicant had not responded to the request.

13.  His complete service medical records are not available for review.

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 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 nosologic classification scheme.  Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice.  From a 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 fifth edition of the DSM 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 criterion 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; or

		(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; or

		(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; or

		(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); and

		(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; and

		(6)  sleep disturbance.

	f.  Criterion F – Duration:  Persistence of symptoms (in Criteria B, C, D, and E) for more than 1 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 UOTHC 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 Soldiers' 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 a 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.  On 3 September 2014 in view of the foregoing information, 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 applicants' 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 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 records 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.  BCM/NRs 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.  BCM/NRs 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.

21.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  Chapter 10 (Discharge in Lieu of Court-Martial) states a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could have been submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally issued to an individual who was discharged for the good of the service.

DISCUSSION AND CONCLUSIONS:

1.  Although his complete discharge package is not available for review and he requested an upgrade of his undesirable discharge without reference to misconduct, the separation authority directed his discharge on 13 February 1976 under the provisions of Army Regulation 635-200, chapter 10.  The chapter alone under which the applicant was discharged indicates misconduct.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  A discharge under conditions other than honorable is normally considered appropriate when a member is separated under the provisions of chapter 10.  

2.  On 13 February 1976, 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
re-characterization of their overall service.

4.  The evidence of record shows he was diagnosed with PTSD and ischemic heart disease by professionals at the VA.  Although his complete service medical records are not available for review and his service connection for PTSD and ischemic heart disease were later severed by the VA due to his service characterization, he was nevertheless diagnosed with PTSD.

5.  The VA, operating under different laws, considered his entire period of service as dishonorable for VA purposes.  However, the Army characterized his service for the period 31 October 1967 through 7 August 1969 as honorable.

6.  It is reasonable to conclude the applicant's PTSD was a causative factor in the misconduct that led to his discharge on 13 February 1976.  After carefully weighing that fact against the severity of his misconduct, there is sufficient mitigating evidence to warrant upgrading the character of his service to general under honorable conditions and restoring his rank/grade to SP5/E-5 with an effective date of 31 January 1969.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing his DD Form 214 for the period ending 13 February 1976 to show his character of service as "General Under Honorable Conditions" and his rank/grade as SP5/E-5 with an effective date of 31 January 1969.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to no reference of misconduct.



      __________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)                                         AR20150001682



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ABCMR Record of Proceedings (cont)                                         AR20150001682



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