IN THE CASE OF:	  

		BOARD DATE:	  16 April 2015

		DOCKET NUMBER:  AR20150001934 


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, reconsideration of his previous request for an upgrade of his undesirable discharge (UD). 

2.  The applicant states he has been diagnosed with post-traumatic stress disorder (PTSD) associated with his Vietnam service.  He believes that his conduct was a result of his illness and occurred through no fault of his own.

3.  The applicant provides copies of the following:

* General Orders (GO) Number 2763
* Army Commendation Medal Citation
* GO Number 378
* GO Number 1069
* Division E-6 Selection Board memorandum
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Army Board for Correction of Military Record (ABCMR) Record of Proceedings (ROP)
* Central Alabama Veterans Health Care System (CAVHCS) Progress Notes – Primary Care Physician Note
* Privacy Act Release
* letter to a Member of Congress
* letter from the Army Review Boards Agency (ARBA)
* CAVHCS Psychology Evaluation
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR2002071659 on 13 August 2002.

2.  On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Board for Correction of Military/Naval Records to carefully consider the revised PTSD criteria, detailed medical consideration, and mitigating factors when taking actions on applications from former service members administratively discharged and who had 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.  Although his application was received outside of the 1-year window for submission of requests for reconsideration, the applicant's request will be considered by the Board as an exception to policy.

3.  The applicant was inducted into the Army of the United States on 4 August 1965.  He was awarded military occupational specialty (MOS) 76D (ordnance storage specialist).  

4.  He was honorably discharged on 22 May 1967 for the purpose of enlisting in the Regular Army (RA).  He was credited with completing 1 year, 9 months, and 19 days of active service.  

5.  He enlisted in the RA on 23 May 1967, for 6 years.  He was awarded MOS 92C (quality survey specialist).  He was promoted to pay grade E-4 on 26 August 1967.   He served in Germany from 1 July 1967 through 23 May 1968.

6.  On 6 February 1968, he accepted NJP under Article 15, UMCJ, for failing to obey a lawful order not to have possession of alcohol in the billets.  His punishment included a suspended reduction to pay grade E-3 and 14 days of restriction and extra duty.

7.  He was promoted to pay grade E-5 on 7 October 1968.

8.  He served in Vietnam from 27 June 1968 through 31 December 1969.

9.  His records contain and he provided copies of the following orders issued by Headquarters, 173rd Airborne Brigade:

* GO Number 2763, dated 30 October 1968, awarding him the Army Commendation Medal for meritorious achievement in Vietnam from 30 June through 16 October 1968
* GO Number 378, dated 16 February 1969, awarding him the Bronze Star Medal for meritorious achievement in Vietnam from 8 November 1968 through 20 January 1969
* GO Number 1069, dated 29 April 1969, awarding him the Army Commendation Medal with 1st Oak Leaf Cluster (OLC) for meritorious service in Vietnam from June 1968 through June 1969

10.  He accepted NJP under Article 15, UCMJ, on/for:

* 8 May 1970 - failing to go to his appointed place of duty on 7 May 1970
* 24 August 1970 - absenting himself from his unit from 21 to 23 August 1970

11.  He again served in Vietnam from 26 August 1970 through 4 April 1972.

12.  He also provided a copy of a Division E-6 Selection Board memorandum, dated 20 November 1970, which stated an E-6 selection board was scheduled to convene on 25 November 1970. 

13.  He accepted NJP under Article 15, UCMJ, on/for:

* 18 September 1971 - absenting himself from his unit from 4 to 10 September 1971
* 22 February 1972 - willfully disobeying a lawful order from his superior noncommissioned officer and willfully disobeying a lawful command from his superior commissioned officer on 22 February 1972; he elected to appeal and his appeal was denied on 15 March 1972

14.  He was reduced to pay grade E-4 on 18 September 1972.

15.  On 3 July 1973, a DD Form 458 (Charge Sheet) was completed by the Commander, U.S. Army Personnel Control Facility, Fort Benning, GA.  The applicant was charged with one specification of being absent without leave (AWOL) from 31 October 1972 through 25 June 1973.

16.  On 21 July 1973, after consulting with counsel, the applicant requested discharge under the provisions of Army Regulation 635-200 (Personnel Separation, Enlisted Separations), chapter 10, for the good of the service – in lieu of trail by court-martial for charges being preferred against him.  He acknowledged he could be discharged under other than honorable conditions (UOTHC) and furnished an UD Certificate and the result of the issuance of such a discharge.  He waived his rights and elected to submit a statement in his own behalf.

17.  In his statement, the applicant stated he was drafted into the service and then he reenlisted.  He had over 7 years of good time.  He spent 36 months in Vietnam and was awarded the Army Commendation Medal and Bronze Star Medal.  He received on Article 15 and he was currently pending charges for being AWOL.  His father was a disabled veteran and had been ill for a long time. His father was currently in a mental hospital and was not expected to live very long.  His mother was a mental case also and it was getting very hard for her.  He had been trying to help his parents and serve in the Army at the same time.  He found that he couldn't accomplish that and all he had done was get into debt. He could no longer stay in the Army and give aid to his parents and support his wife.  He felt that he had done a great job for his country and he should now turn his attention to his family.  Based on the aforementioned reasons, he did not feel he could remain in the service and do a good job.  It would be to the benefit of the service if he was permitted to resign with the issuance of a general discharge.

18.  On 9 August 1973, the applicant's battalion commander recommended approval of the applicant's discharge with the issuance of an UD.  He stated that personal and financial problems were the stated reasons for the applicant's unauthorized absence.  The applicant had several years of service and had been afforded sufficient time to prove himself as a man.  The applicant's attitude and behavior indicated that further corrective action would be useless.

19.  On 10 August 1973, the applicant's battalion commander recommended approval of the applicant's discharge with the issuance of an UD.  He stated:

   a.  The applicant currently possessed a belligerent attitude toward the Army and felt that the Article 15 he received was unjustified and contributed to his going AWOL.  The applicant was completely obsessed with his family problems which revolved around the mental instability of his mother and father and was convinced in his own mind that what he did was necessary and justified.  The applicant was aware of the seriousness of his acts and was prepared to accept the consequences.  He had approximately 1 year remaining on his current 6 year enlistment.  

   b.  He was convinced that further retention of the applicant on active duty would only serve to further aggravate the situation and prolong the inevitable.  In consideration of his prior favorable and lengthy service in Vietnam and Germany, his extended period of AWOL, and his current belligerent attitude, approval of the applicant's requests and issuance of an UD was in the best interest of the applicant, the Army, and the Government.

20.  On 13 August 1973, the separation authority approved the applicant’s request and directed the issuance of an UD and reduction to pay grade E-1.

21.  He was discharged accordingly on 19 September 1973.  He was credited with completing 5 years, 7 months, and 4 days of active service and had 268 days of time lost.  His character of service was UOTHC and he was issued a UD Certificate.  His DD Form 214 lists the:

* National Defense Service Medal
* Vietnam Service Medal with 4 bronze service stars
* Vietnam Campaign Medal with Device (1960)
* Bronze Star Medal
* Parachutist Badge
* Army Commendation Medal with 2nd OLC
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)
* six overseas service bars

22.  On 27 August 1974, the Army Discharge Review Board denied his request for an upgrade of his discharge.

23.  On 13 August 2002, in response to his request for an upgrade of his UD to a general discharge, the ABCMR concluded that his disciplinary record as well as his record of misconduct clearly warranted the discharge he received and denied his request for an upgrade of his UD.

24.  He also provided a CAVHCS Program Notes – Primary Care Physician Note, dated 24 November 2006, which lists chronic PTSD along with several other medical conditions as active problems.  

25.  His records also contain a Department of Veterans Affairs (VA) Rating Decision, dated 29 April 2008, which shows the VA denied him service-connection for PTSD.  The VA stated a review of his service treatment record was void of any complaints, treatment, and/or diagnosis of PTSD.  His request was being denied since that condition neither occurred in nor was caused by service.

26.  He further provided copies of the following:

   a.  A Privacy Act Release he completed on 18 December 2010 requesting Congressional assistance in resolving problems he was having with the ABCMR.

   b.  A letter wherein the applicant's sister requested assistance from a Member of Congress on behalf of her brother [the applicant].  She stated the following:

		(1)  Her brother suffered with PTSD, peripheral artery disease, diabetes, skin cancer, and other illnesses consistent with serving 3 tours in Vietnam.  He had been ill since returning home from his last tour of duty in Vietnam.  

		(2)  He had two different discharges and the last one was issued after he became ill and behaved inappropriately.  He received an under conditions other than honorable discharge.

		(3)  During his last 6 months of duty while stationed at Fort Bragg, NC, he began to exhibit signs of instability and to act inappropriately and ended up in the military stockade.  While incarcerated they sent him to 2 different psychiatrists.  The Army was aware that her brother was ill.

		(4)  Her brother told her that he was scared out of his mind during that time and he remembered little of what happened to him.  He stated that all he wanted was to go home.  Someone gave him some papers to sign and told him if he didn't sign them they would see that he spent the rest of his life in Leavenworth prison, so he signed the papers.  

		(5)  Her brother had a heart attack in 2003 and began going to the VA hospital in Montgomery, AL.  There they discovered that he had a very advanced case of PTSD and began treatment.  He filed for VA benefits, but was denied.  

   c.  A letter, dated 10 March 2015, wherein the Chief, Case Management Division, ARBA, advised him in order for the ABCMR to consider his application he must provide a copy of medical documents that support his PTSD medical condition.  

27.  In response to the ARBA request, he provided a CAVHCS Psychology Evaluation, dated 11 September 2008, wherein a consultant psychologist to the VA stated:

		(1)  The applicant denied illegal drug use since smoking marijuana in Vietnam.  He consumed 12 cans of beer per month and denied a history of alcohol abuse, but admitted to being convicted for driving under the influence in the early 1990's.

		(2)  He was tearfully reluctant to discuss his Vietnam traumas, but did admit to losing some buddies, one who was his first sergeant; being involved in firefights; and receiving sniper attacks while on convoy operations.

		(3)  He was alert and oriented with good eye contact and organized and demonstrated goal directed thinking.  

		(4)  His mental status included depressed mood with tears, insomnia, night sweats, trauma in Vietnam appears probable (emphasis added).  He encouraged the applicant to keep his psychiatrist appointments.  

		(5)  He diagnosed the applicant with PSTD and depression.

		(6)  The applicant declined referral to PTSD support groups, stress management therapies or individual therapy.

		(7)  The applicant was advised to go to the regional office and file a claim for PTSD.  He was reluctant to do so, stating "because of his UD he can't get nothing."  It was suggested he consider pursuing an upgrade of his discharge and he did not commit to it.

28.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for separation of enlisted personnel:

   a.  Chapter 10 states a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good the service in lieu of a trial.  The regulation required that no element of coercion was involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood he could receive a discharge UOTHC, the adverse nature of such a discharge, and the possible consequences thereof.  The regulation required that the request be forwarded through channels to the general court-martial convening authority.  An UD Certificate would normally be furnished to an individual who was discharged for the good of the service.

   b.  Paragraph 3-7a states an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   c.  Paragraph 3-7b states a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

29.  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." 

30.  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.

31.  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. 

32.  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.  

33.  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.

34.  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?

35.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, a decorated Vietnam veteran, upon receipt of the court-martial charges requested a discharge under the provisions of chapter 10 of Army Regulation 635-200.  This discharge request was a voluntary request in lieu by court-martial.  

2.  The evidence of record shows his administrative discharge for misconduct was accomplished in compliance with applicable law and regulations in effect at the time with no indication of procedural errors which would have jeopardized his rights.  The characterization of his 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.

3.  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.

4.  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.  A review of his record and the medical records and progress notes that he provided shows that he was subjected to the ordeals of war and death while serving in Vietnam.  It is noted he received a Bronze Star Medal for meritorious achievement while serving in combat operations.  Of particular note is that a mental health professional noted that the applicant was unable to talk about his Vietnam traumas and became tearful when questioned and Vietnam trauma appeared probable.  He diagnosed the applicant with PTSD and depression.  Therefore, it is reasonable to believe the applicant's PTSD condition existed at the time of discharge. 

6.  It is concluded that the PTSD conditions were a causative factor in the misconduct that led to his 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 restoring his rank/grade to SP4/E-4 with an effective date of 18 September 1972.  However, because of this same misconduct his service did not rise to the level required for a fully honorable discharge.

BOARD VOTE:

___x____  ____x___  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AR2002071659, dated 13 August 2002.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by re-issuing the applicant's DD Form 214 to show the characterization of service as "General, Under Honorable Conditions" and his rank/grade as private/E-4 with an effective date of 18 September 1972.



      _______ _   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)                                         AR20150001934



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ABCMR Record of Proceedings (cont)                                         AR20150001934



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