IN THE CASE OF:	  

		BOARD DATE:	  10 March 2015

		DOCKET NUMBER:  AR20150002152 


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 his undesirable discharge be upgraded.

2.  The applicant states he would like his discharge upgraded because of post-traumatic stress disorder (PTSD) and new laws.  He tried to commit suicide in April 1968 by an overdose of pills.  He was seen by a psychiatrist who told him to say everything was alright to investigators.  He was supposed to leave Korea in 13 months but has held for an extra month due to the investigation.  This shows his insanity was present at the time and by the time he was sent back to Fort Carson, CO he was traumatized.  He has dealt with mental issues throughout his life and sought help many times.  When he was finally able to see the Department of Veterans Affairs (VA) they sent him to a psychiatrist who told him he had PTSD, the same thing his local doctor, Dr. RRW, has told him.

3.  He relates the following events taking place during his enlistment:

	a.  In July 1967 at Fort Bliss, TX, he and another Soldier were required by a drill instructor to beat a fellow recruit for wetting the bed.  They beat him until he was in a fetal position, crying.

	b.  He stated that in late summer 1968 in Sinchon, Korea he was running through the village to get back to the compound before curfew expired.  He stumbled over two dead Korean girls.  One of the girls had her throat cut and the other had been stabbed or shot in the back a couple of times.  He ran back to the compound.  He never told anyone about the girls and he never heard anything about the incident.
	c.  In April 1969 his company had been moved further north.  A spy plane was shot down and they were roused from their hooches, told about the plane, and that the North Koreans might try to overrun them.  They gathered their field gear and rifles.  One kid started crying.  He was sent out by himself and it was a long night but nothing happened.  He was later told the crying Soldier was being shipped to the states and he could go see him before he left.  He stated "no, he's a coward." and ran from the orderly room in tears.  

	d.  In the summer of 1969, his first sergeant grabbed him, threw him against the wall, and starting beating him in the head until blood was running out of his ear.  He had trouble for years with dizziness.  He would become sick, vomiting, and falling down.  He's been to doctors and their only determination was that his brain keeps swelling.

4.  The applicant provides:

* a letter, dated 16 October 2012, from Dr. RRW
* his DD Form 214 (Report of Separation from Active Duty) with an effective date of 10 April 1970
* four character references
* a photograph
* a newspaper article 

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 31 May 1967, he enlisted in the Regular Army for 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 76P (Stock Control Accounting Specialist).

3.  On 18 January 1968, he accepted nonjudicial punishment (NJP) for using profanity and creating a disturbance in a public place.
4.  He served in Korea from 26 April 1968 to 25 Jun 1969.  He was assigned to the: 

* 512th Maintenance Company from 30 April to 24 November 1968
* 457th Supply Company from 25 November 1968 to 25 June 1969

5.  He accepted NJP on:

* 13 August 1968 for striking a female on her chest with his fist
* 18 November 1968 for being absent from appointed place of duty and wrongfully appropriating a vehicle, 1/4 ton the property of the U.S. Army

6.  On 9 April 1969, he was examined by psychiatrist with the Neuropsychiatric Service, 121st Evacuation Hospital.  The examiner stated:

	a.  The applicant had a history of taking pills for kicks (barbiturates, amphetamines, darvon, and Librium) off and on since he came to Korea about 
12 months ago.  For the last month or so he had increased his taking of pills in amount and frequency.  This had a direct impact on his ability to function as a Soldier.

	b.  He was mentally able to distinguish right from wrong and to adhere to the right.

	c.  He was mentally to understand the nature of board proceedings and to testify in his own behalf.

	d.  He met the mental retention standards.

	e.  At the time, besides the applicant's tendency to use pills for self pleasure, there was no evidence of psychiatric pathology and his case should be handled with administrative measures.

7.  On 29 May 1969, he plead guilty and was found guilty before a summary court-martial of being drunk and disorderly in the mess hall.

8.  On 29 October 1969, he plead guilty and was found guilty before a summary court-martial of being absent without leave (AWOL) from 13-19 October 1969.

9.  He accepted NJP on:

* 28 November 1969 for being absent from his appointed place of duty, to wit: clean-up detail
* 11 February 1970 from being absent from his appointed place of duty, to wit: Brigade Guard

10.  On 3 March 1970, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action to discharge him under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) for unfitness.  The applicant:

* waived consideration by a board of officers 
* waived a personal appearance  
* stated that he was not submitting statements in his own behalf 
* waived representation by counsel   

11.  He acknowledged that, as the result of issuance of a discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life.

12.  On 11 March 1970, he pled guilty and was found guilty before a summary court-martial of being AWOL from 20-24 February 1970.

13.  On 13 March 1970, the applicant's commander recommended that the applicant be eliminated from the military service under provisions of Army Regulation 635-212 because of unfitness, frequent incidents of a discreditable nature with military authorities.  The commander stated discharge was recommended because of unfitness by reason of the applicant being guilty of malingering and numerous petty offenses, such as missing formations and failure to accomplish any given objective when placed on detail.  He was constantly moved from one section to another in an effort to find a suitable slot which he might find more to his abilities.  However, in every case he failed to show any initiative and shunned the majority of his responsibilities.

14.  On 3 April 1970, the appropriate authority accepted his waiver of a hearing before a board of officers, waived the requirement for rehabilitation measures, approved the recommendation for discharge under the provisions of Army Regulation 635-212, and directed the applicant be furnished an Undesirable Discharge Certificate.

15.  On 10 April 1970, he was discharged by reason of unfitness - frequent involvement in incidents of a discreditable nature with civil or military authorities under the provisions of Army Regulation 635-212 and issued an Undesirable Discharge Certificate.  He completed 2 years and 10 months of creditable service that was characterized as under conditions other than honorable.  He had 
10 days of time lost.  

16.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

17.  He submitted a letter, dated 16 October 2012, from Dr. RRW.  Dr. RRW stated the applicant has serious psychiatric problems including depression and psychosis.  He stated these problems are probably related to traumatic events that he witnessed and took part in during his years in the Army.  His diagnosis was that the applicant suffers from PTSD.

18.  He submitted a letter, dated 28 November 2012, from a former Soldier, DG, who was assigned to his unit at Fort Carson.  He describes an incident in which the applicant found several intruders in their company area.  They were of Mexican descent and when he yelled "you Mexicans get out of here" the company commander, who was also of Mexican descent, took offense at the remark he made.  The commander considered it a racist remark and from then on he treated the applicant very unfair and hateful.  Instead of thanking the applicant for removing the intruders from their barracks, the commander developed a hatred against him and was constantly on his back.

19.  He submitted an undated letter from a retired sergeant first class (SFC).  The SFC stated he was assigned with the applicant in Korea, although he was not his supervisor.  He found him to be a reasonable Soldier, always taking his job serious.  He didn't recall ever hearing of the applicant having problems with any of his officers or non-commissioned officers (NCO).

20.  He submitted an email, dated 21 October 2006, from a now retired chief warrant officer three (CW3).  The CW3 stated that he was assigned at the time as the NCO in charge and the platoon sergeant in the applicant's unit.  He stated the applicant was an excellent Soldier and repairman and never was a disciplinary problem for the unit in the 6 months that the CW3 was assigned.

21.  He submitted an email, dated 17 October 2006, from a former Soldier, EHS, who was assigned with the applicant at Fort Carson.  EHS believed there was an incident during the summer of 1969 when some Hispanic Soldiers entered their company area.  They were raising hell and were drunk.  The applicant was sent to send the troublemakers out of the area.  The applicant did as he was told and the company commander happened onto the scene and seemed to take charge and the incident quieted down.  The applicant was greatly appreciated throughout the company for his stance in protecting the unit, but there was some name calling and their commander sided with the interlopers. 

22.  Army Regulation 27-10 (Military Justice) states use of nonjudicial punishment is proper in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate.

23.  Army Regulation 635-212 (Personnel Separations, Discharge, Unfitness and Unsuitability), in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  This regulation provided that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  A discharge under other than honorable conditions was normally considered appropriate.  However, at the time of the applicant's separation, the regulation provided for the issuance of an undesirable discharge.

24.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.  

	a.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been clearly inappropriate.  

	b.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

25.  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." 
26.  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.

27.  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. 

28.  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.  

29.  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 under other than honorable conditions 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.

30.  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?

31.  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 under other than honorable conditions 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 under other than honorable conditions.  Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct.  PTSD is not a likely cause of premeditated misconduct.  Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causeal relationship of symptoms to the misconduct.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's discharge proceedings, for misconduct, were conducted in accordance with law and regulations in effect at the time.  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.  NJP is proper in all cases involving minor offenses in which non-punitive measures are considered inadequate or inappropriate.  Therefore, the offenses he received NJP for are considered minor in nature.  His short periods of AWOL do not appear to have been premeditated.  

5.  In his letter, dated 16 October 2012, Dr. RRW stated his problems are probably related to traumatic events that he witnessed and took part in during his years in the Army.  Dr. RRW diagnosed him with PTSD.

6.  The applicant's record is void of any serious previous misconduct during this period of service and the misconduct of going AWOL appears to have been isolated events that were the result of an uncharacteristic lapse in judgment.

7.  It is concluded that the PTSD conditions were a causative factor in the misconduct that led to the discharge.  After carefully weighing that fact against the severity of the applicant's misconduct, there is sufficient mitigating evidence to warrant upgrading the characterization of the applicant's service to a general discharge under honorable conditions.

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 a recommendation for relief.  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 for the period ending 10 April 1970 to show the characterization of service as "General, Under Honorable Conditions"   




      _______ _   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)                                         AR20150002152



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ABCMR Record of Proceedings (cont)                                         AR20150002152



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