IN THE CASE OF:  	  

		BOARD DATE:  28 July 2015	  

		DOCKET NUMBER:  AR20150001781 


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, in effect, an upgrade of his under other than honorable conditions (UOTHC) discharge to honorable and award of two Purple Hearts.

2.  The applicant states, in effect, that his VA Form 21-4138 (Statement in Support of Claim) explains the effect that post-traumatic stress disorder (PTSD) has had on his entire life since serving in Vietnam.  He hopes his discharge will be upgraded and he will be able to get the two Purple Hearts that he earned in Cambodia and Laos.

3.  The applicant provides:

* Two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) ending on 19 July 1970 and 22 April 1972
* DD Form 215 (Correction to DD Form 214)
* VA Form 21-4138, dated 2 January 2012

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.  On 9 October 1969, he enlisted in the Regular Army (RA).  He completed his initial training and he was awarded military occupational specialty 11B (light weapons infantryman).

3.  He arrived in the Republic of Vietnam (RVN) on 29 May 1970 and he was assigned to Company B, 1st Battalion, 14th Infantry, 4th Infantry Division, from 17 June to 19 July 1970 with duties as a rifleman.

4.  On 19 July 1970, he was honorably discharged in the rank of private first class/E-3 for the purpose of immediate reenlistment.  The DD Form 214 he was issued for this period of service shows he was awarded or authorized the National Defense Service Medal and the Vietnam Service Medal.

5.  On 20 July 1970, he reenlisted in the RA.  During this period of service he was assigned to:

* Company B, 1st Battalion, 14th Infantry, 4th Infantry Division, RVN, from 20 July to 27 August 1970 with duties as a rifleman
* 148th Ordnance Company (Ammunition), (Direct Support (DS)/General Support (GS)), RVN, from 29 August to 12 October 1970 with duties as a security guard
* 54th Ordnance Company (Ammunition) (DS/GS), RVN, from 13 October 1970 to 21 April 1971 with duties as an ammunition storage helper

6.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being:

* On 24 December 1970, for being absent without leave (AWOL) from 13 to 15 December 1970
* On 13 December 1971, for being AWOL on 1 August 1970, he was reduced to private/E-2
* On 10 November 1971, for being AWOL from 8 to 10 November 1971, he was reduced to private/E-1

7.  Item 40 (Wounds) of his DA Form 20 (Enlisted Qualification Record) shows he sustained wounds to the back of his right hand on 21 January 1971.

8.  A DA Form 188 (Extract Copy of Morning Report) shows the applicant was reported AWOL for the period 12 January 1972 through 10 February 1972.  He was dropped from the rolls on 11 February 1972.

9.  On 27 March 1972, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.

10.  On the same date, he requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  In his request, he acknowledged that he had not been subjected to coercion with respect to his request for a discharge and had been advised of the implications that were attached to it.  He did not submit a statement in his own behalf.

11.  He further acknowledged that he understood if his request was accepted, he could be discharged UOTHC and furnished an Undesirable Discharge Certificate.  He understood that as a result of such a discharge, he might be ineligible for many or all Amy benefits, many or all benefits administered by the Veterans Administration (VA), and that he might be deprived of his rights and benefits as a veteran under both State and Federal laws.  He also understood that he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.

12.  His immediate and senior commanders subsequently recommended approval of the applicant's request for a discharge with the issuance of an Undesirable Discharge Certificate.

13.  On 7 April 1972, the separation authority approved the applicant's request for a discharge, and directed the issuance of an Undesirable Discharge Certificate. 

14.  The DD Form 214 he was issued for this period of service shows he was discharged in the rank of PVT under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial (separation program number (SPN) 246), with a UOTHC characterization of service.  He completed 1 year, 9 months, and 3 days of active service.



15.  His DD Form 214 for this period of service shows he was awarded or authorized:

* National Defense Service Medal
* Vietnam Service Medal
* RVN Campaign Medal with Device (1960)
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)

16.  His records contains a VA Rating Decision, dated 12 December 1988, which states, in part, that a "Psychiatric exam diagnosis PTSD citing several stressors, including frequent combat with contact with the enemy and the death of friends…. Although objective evidence of an adequate stressor is not of record, [illegible] has advised in other cases that objective evidence is not required.  Sufficient supportive evidence is of record to establish the validity of stressors.  Diagnosis has been made and the diagnosis is supported adequately."

17.  On 8 January 1992, the ABCMR denied the applicant's request to upgrade his discharge.

18.  A review of the Awards and Decorations Computer-Assisted Retrieval System, an index of general orders issued during the Vietnam era between 1965 and 1973 maintained by the Military Awards Branch of the U.S. Army Human Resources Command, failed to reveal Purple Heart orders pertaining to the applicant.  His record is also void of orders awarding him the Purple Heart.

19.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the awards received by units serving in Vietnam.  This pamphlet shows that the 14th Infantry, 1st Battalion, was cited for award of the RVN Gallantry Cross with Palm Unit Citation for the period 5 May 1965 through 26 September 1970 by Department of the Army General Orders (DAGO) Number 51, dated 1971.

20.  Army Regulation 600-8-22 (Military Awards), paragraph 2-13, contains the regulatory guidance on the Vietnam Service Medal.  It states a bronze service star is worn on the appropriate service ribbon, to include the Vietnam Service Medal, for each credited campaign.  Appendix B shows that during his service in Vietnam, he participated in the following two campaigns:

* DA Sanctuary Counteroffensive (1 May 1970 - 30 June 1970)
* Vietnam Counteroffensive, Phase VII (1 July 1970 -30 June 1971)

21.  Army Regulation 600-200 (Enlisted Personnel Management System), as in effect at the time, provided instructions for the completion of the DA Form 20.  Paragraph 9-53 specified entry in Item 40 of a brief description of wounds or injuries (including injury from gas) received through hostile or enemy action requiring medical treatment and/or hospitalization.  The date wounded or injured was also to be entered.

22.  Army Regulation 600-8-22 (Military Awards) states the Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile action.  Substantiating evidence must be provided to verify the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record.  

23.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed 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 at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

24.  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.

25.  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.

26.  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." 

27.  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.

28.  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. 

29.  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.

30.  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.

31.  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?

32.  Although the DOD acknowledges that some Soldiers who were administratively issued a UOTHC discharge 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 were conducted in accordance with law and regulations in effect at the time.  The characterization of the applicant's discharge was commensurate with his AWOL offenses.

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 was wounded in combat during his tour.  Subsequent to service in Vietnam, 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. 

5.  It is concluded that PTSD conditions were a causative factor in the applicant’s 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 general under honorable conditions.  After weighing the same factors, his service did not rise to the level of fully honorable.

6.  His DA Form 20 shows in item 40 that he suffered wounds to his hand while in Vietnam.  Regulatory guidance specified to enter in item 40 of the DA Form 20 a brief description of wounds or injuries received through hostile or enemy action requiring medical treatment and/or hospitalization.  Therefore, this entry is sufficient evidence to award the applicant the Purple Heart and correct his 
DD Form 214 to show this award.

7.  General orders awarded his unit the RVN Gallantry Cross with Palm Unit Citation which is not shown on his DD Form 214.  He is entitled to have this unit award listed on his DD Form 214.

8.  He was previously awarded the Vietnam Service Medal.  Additionally, he participated in two campaigns while serving in the RVN.  He is entitled to two bronze service stars to be affixed to his previously-awarded Vietnam Service Medal.

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:

	a.  re-issuing the applicant's DD Form 214 for the period ending 22 April 1972 to show the characterization of service as "General, Under Honorable Conditions"; 

	b.  awarding him the Purple Heart for action on 21 January 1971; and

	c.  in addition to the awards currently listed, adding the following awards to his DD Form 214 ending on 22 April 1972:

* Purple Heart
* Vietnam Service Medal with two bronze service stars
* Republic of Vietnam Gallantry Cross with Palm Unit Citation

2.  The Board further determined that 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 showing the characterization of service as "Honorable" and award of a second Purple Heart.



      ___________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)                                         AR20150001781





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ABCMR Record of Proceedings (cont)                                         AR20150001781



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