IN THE CASE OF:	  

		BOARD DATE:	  14 APRIL 2015

		DOCKET NUMBER:  AR20150002836 


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 that his undesirable discharge be upgraded to a fully honorable discharge by reason of medical disability.

2.  The applicant states that his discharge should be upgraded because he was suffering from post-traumatic stress disorder (PTSD) at the time of his misconduct.

3.  The applicant provides copies of:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Medical documents from the Department of Veterans Affairs (VA) diagnosing him with PTSD
* Army Discharge Review Board Case Report and Directive
* VA transcript of hearing and supporting documents

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 4 March 1968 for a period of    3 years.  He completed his basic training at Fort Lewis, Washington and was transferred to Fort Leonard Wood, Missouri to undergo his advanced individual training as a Pioneer. 

3.  The applicant went absent without leave from 5 July to 8 July and 27 September to 1 October 1968.

4.  He was transferred to the Canal Zone on 5 October 1968 and served there until 25 June 1969 when he departed for assignment to Vietnam.  He failed to report as ordered and was AWOL from 1 August to 7 September 1969.  He arrived in Vietnam on 27 September 1969, was advanced to the rank of SP4 on 5 February 1970 and served in Vietnam until 26 September 1970.  He was transferred to Fort Campbell, Kentucky on or about 3 November 1970.

5.  He departed AWOL on 27 December 1970 and remained absent in desertion until he was apprehended by civil authorities in Arizona on 12 June 1973 and was returned to military control at Fort Ord, California where charges were preferred against him on 26 June 1973.

6.  On 11 July 1973, after consulting with counsel and being advised of his rights and options in regards to the charges against him, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He acknowledged he had been advised of and understood his rights under the Uniform Code of Military Justice (UCMJ), that he could receive an undesirable discharge which would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received an undesirable discharge.  He elected to submit a statement in his own behalf which was witnessed by his counsel in which he stated that he hated the Army and would do anything to get out and if he was retained he would leave again.

7.  The appropriate authority (a major general) approved the applicant’s request for discharge on 26 July 1973 and directed that the applicant be furnished an Undesirable Discharge Certificate.

8.  On 1 August 1973, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial.  He completed 2 years, 9 months, and 14 days of active service and had 944 days of lost time due to AWOL.

9.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 28 July 1977 contending that he was too young to adapt to the military.  He was granted a personal appearance before the ADRB Travel Panel in San Francisco, California on 20 September 1978 and was represented by counsel.  After hearing all of the testimony presented and reviewing the available evidence, the ADRB determined that the applicant’s discharge was both proper and equitable and voted unanimously to deny his request for an upgrade of his discharge.

10.  The documents submitted by the applicant show that the applicant was diagnosed by the VA in 2004 as suffering from PTSD and he is currently undergoing treatment for PTSD.

11.  A review of the applicant’s official records shows that he underwent a medical/physical examination at the time of his discharge and was found to be fit for retention/separation.  There is no evidence to show he had any unfitting conditions at the time of his discharge. 

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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.  At the time, an undesirable discharge was normally given.

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 a historical perspective, the significant change ushered in by the PTSD concept was the stipulation that the etiological agent was outside the individual (i.e., a traumatic event) rather than an inherent individual weakness (i.e., a traumatic neurosis).  The key to understanding the scientific basis and clinical expression of PTSD is the concept of "trauma." 

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 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.  

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 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'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.  A review of the applicant's record and the evidence that he provided shows that he was subjected to the ordeals of war while serving in Vietnam.  

5.  Subsequent to these experiences, medical evidence shows the applicant was diagnosed with PTSD/PTSD-related symptoms by a competent mental health professional.  Therefore, it is reasonable to believe the applicant's PTSD condition existed at the time of discharge.

6.  The applicant's misconduct during this period of service, specifically AWOL, appears to be the result of a lapse in judgment that was possibly caused by his PTSD.  In any event, he should be afforded the benefit of any doubt.

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 and restoring his rank/grade to SP4/E-4 with an effective date of 5 February 1970.  However, because of this same misconduct his service did not rise to the level required for a fully honorable discharge.

8.  There is no evidence to suggest that he had any unfitting conditions at the time of his discharge that would warrant a separation for permanent disability.

BOARD VOTE:

___x____  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

Notwithstanding the staff DISCUSSION AND CONCLUSIONS the Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice.  The Board unanimously determined that the applicant established a pattern of misconduct prior to going to Vietnam and did not feel his misconduct subsequent to his Vietnam service was due to PTSD.  As such, there is no 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)                                         AR20150002836



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ABCMR Record of Proceedings (cont)                                         AR20150002836



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