IN THE CASE OF:  	  

		BOARD DATE:  30 July 2015	  

		DOCKET NUMBER:  AR20150001803 


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 discharge under other than honorable conditions (UOTHC) to a general discharge under honorable conditions. 

2.  The applicant states, in effect, that he is eligible for an upgrade based upon the Secretary of Defense's decision to provide "liberal consideration" to petitions for changes due to symptoms of post-traumatic stress disorder (PTSD).  He had 18 months of service with an excellent service record.  He believes he was a good or at least adequate Soldier.

3.  He cannot say if he could have continued in his job or if he was ready to snap, but his fateful meeting with Command Sergeant Major (CSM) A______n answered that.  The applicant had been on Firebase Birmingham a few weeks and was probably field-weary.  The CSM was newly arrived, excessively fat, wearing shined boots, and starched fatigues with his insignia of rank in plain view.  Fire Base Birmingham was relatively secure, but not beyond the range of sniper fire.  This man was not safe to be around.  He commanded no respect yet demanded respect.  The applicant's confrontation with him set the wheels in motion for a court-martial and his desire for an immediate exit from the Army.  He had lost the ability to follow orders and do his job.  The end result was an undesirable discharge from the Army.



4.  The applicant subsequently went home and almost immediately got into a heated fight with his father.  He left to live homeless for over 2 years; living every day as if it was his last.  A lot has happened since then.  His anxiety has dissipated and he is very much at home in his community.  He is self-sufficient, married with a family, a life member of the local Veterans of Foreign Wars post, and desires only to put an unfortunate chain of events to rest with an upgrade of his military discharge.

5.  The applicant provides a:

* self-authored statement
* DD Form 47 (Record of Induction)
* DA Form 2627 (Summarized Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ))
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Secretary of Defense guidance memorandum, dated 3 September 2014

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's records show that he was inducted into the Army of the United States on 4 November 1969.  Upon completion of initial entry training he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He served in the Republic of Vietnam from 25 October 1970 to 10 September 1971.

3.  His record reveals a disciplinary history which includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ as documented on a DA Form 2627, dated 23 April 1971, for absenting himself from his appointed place of duty, to wit: his company's field location on 22 April 1971. 
4.  Headquarters 1st Brigade 101st Airborne Division (Airmobile), Special Court-Martial Order Number 43, dated 25 May 1971, shows the applicant was tried and found guilty of the following charges and specifications on 18 May 1971:

	a.  Charge I:  Violation of UCMJ, Article 90:

		(1)  Specification 1:  willfully disobeying a lawful command from a commissioned officer to "stand at ease" on 28 April 1971.

		(2)  Specification 2:  willfully disobeying a lawful command from a commissioned officer to get in the Jeep for movement to the top of Fire Base Birmingham on 28 April 1971.

	b.  Charge II:  Violation of UCMJ, Article 89:  Specification:  behaving himself with disrespect toward a commissioned officer by saying to him "I won't lower myself by calling you sir," also by referring to said officer as a "half-brain pervert" and "pig."

	c.  Charge III:  Violation of UCMJ, Article 91:  Specification:  being disrespectful in language toward CSM A______n, a noncommissioned officer by referring to him as a "pig", a "pervert," and a "war-monger," or words to that effect.

   d.  He was sentenced to a forfeiture of $85 pay for 4 months, confinement at hard labor for 4 months (2 months suspended), and reduction to pay grade E-1.

5.  On 29 June 1971, the applicant was reassigned to another unit for rehabilitative purposes.

6.  The applicant's record contains a DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 11 August 1971, which shows favorable actions for him were suspended pending court-martial action for violation of UCMJ, Article 91.

7.  The complete facts and circumstances leading to the applicant's discharge are not available for review with this case.  However, Headquarters, U.S. Army Personnel Center, Fort Lewis, WA, Special Orders Number 254, dated 11 September 1971, show he was to be issued an Undesirable Discharge Certificate for the good of the service.  



8.  His DD Form 214 shows he was discharged UOTHC with an Undesirable Discharge Certificate under the provisions of chapter 10 of Army Regulation
635-200 (Personnel Separations – Enlisted Personnel), in lieu of trial by court-martial on 11 September 1971.  He completed 1 year, 9 months, and 4 days of total active service with 34 days of time lost.

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

10.  The applicant's record is void of any medical evidence and in spite of being offered an opportunity to do so, he has not provided any medical evidence showing that he was diagnosed with PTSD or any type of psychiatric or psychological condition either during or after his period of service.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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 discharge UOTHC is normally considered appropriate.

12.  Army Regulation 635-200, 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.

13.  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." 



14.  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.

15.  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)

		(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. 

16.  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 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.  

17.  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.

18.  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?

19.  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 causal relationship of symptoms to the misconduct.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record indicates he was charged with the commission of offense(s) punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  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.

2.  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.

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 and the evidence that he provided confirms that he was subjected to the ordeals of war while serving in the RVN.

5.  The applicant's record is void of any evidence and he has not provided sufficient medical evidence that shows he was diagnosed with PTSD/PTSD-related symptoms by a competent mental health professional at any time.  Therefore, there is no reason to presume the applicant suffered from PTSD at the time of discharge. 

6.  In view of the foregoing and in the absence of a PTSD diagnosis, it cannot be concluded that 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 insufficient mitigating evidence to warrant upgrading the characterization of the applicant's service to a general discharge under honorable conditions.

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)                                         AR20150001803





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ABCMR Record of Proceedings (cont)                                         AR20150001803



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