IN THE CASE OF:
BOARD DATE: 7 July 2015
DOCKET NUMBER: AR20150003006
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 bad conduct discharge (BCD) be upgraded to a general discharge (GD) based on being diagnosed with post-traumatic stress disorder (PTSD).
2. The applicant states he has tried on several occasions to get his discharge upgraded. He served in Vietnam, and he received "excellent" conduct and efficiency ratings until his return from the combat zone. He was physically and mentally depleted and could no longer function in the military. With only 4 months left on his enlistment, he went absent without leave (AWOL) for 2 years. He was court-martialed and given a BCD which was reviewed with a granting of a clemency discharge. He has since been diagnosed with PTSD.
3. The applicant provides copies of a statement from a Department of Veterans Affairs (VA) clinical psychologist, VA award letter, five letters of support, his
DD Form 214 (Report of Transfer or Discharge), a DD Form 215 (Correction to DD Form 214) adding the "Clemency Discharge" statement, the "Clemency Discharge" letter, a "Clemency Discharge" Certificate, and his DA Form 20 (Enlisted Qualification Record).
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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20040010858 on 13 October 2005.
2. Although the applicant did not request a reconsideration within one year of the prior denial, as required by regulation, his case warrants review consideration as either a new issue and/or under the special handling of applications for veterans who have been diagnosed with PTSD.
3. The applicant enlisted in the Regular Army in 18 April 1967, completed training, and was awarded military occupational specialty 63B (Wheeled Vehicle Repairman).
4. His DA Form 20 shows
* service in Korea from 7 January 1968 through 28 March 1968
* service in Vietnam from 30 April 1968 through 29 April 1969 with the 628th Maintenance Company
* his advancements and reductions are shown as
* advancement to private two (PV2) on 18 August 1967
* advancement to private first class (PFC) on 15 November 1967
* advancement to specialist four (SP4) on 15 February 1968
* reduction to PV2 on 13 November 1969
* reduction to private (PV1) on 27 May 1970
* advancement to PV2 on 29 July 1970
* reduction to PV1 on 8 September 1972
* conduct and efficiency ratings of
* "excellent" from 1 May 1967 through 29 April 1969
* "unsat" from 25 September 1969 (upon return from Vietnam) through 11 December 1970 (when he was dropped from the rolls of his unit)
* "excellent" for the period 2 May 1970 through 13 September 1970
* no conduct and efficiency ratings recorded for the remaining period
* award of the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), and the Marksman Marksmanship Qualification Badge with Rifle Bar
5. On 10 November 1969, he was convicted by a special court-martial of being AWOL from 2 September 1969 to 25 October 1969. He was sentenced to a reduction and extra duty.
6. On 22 May 1970, he was convicted by a special court-martial of being AWOL from 11 November 1969 to 13 May 1970. He was sentenced to confinement for
5 months, and a forfeiture of pay for 4 months.
7. On 11 August 1972, he was convicted by a special court-martial of being AWOL from 13 August 1970 to 24 June 1972. He was sentenced to confinement at hard labor for 1 month and a bad conduct discharge. On 8 September 1972, the convening authority approved only so much of the sentence as provided for a bad conduct discharge.
8. On 10 October 1972, the United States Army Court of Military Review
affirmed the findings and sentence.
9. The applicant was discharged on 30 November 1972 with a BCD by reason of court-martial. His DD Form 214 indicates he had 2 years, 7 months, and 16 days of total active service and 783 days of lost time.
10. On 1 November 1975, the applicant was notified that upon his completion of his alternative service agreement, President Ford had granted him clemency for his AWOL offense under Presidential Proclamation 4313. The President granted him a full and unconditional Pardon and Clemency Discharge to replace his less than honorable discharge. He was informed that the pardon would restore any Federal civil rights he lost upon his criminal conviction. His pardon would also be helpful in restoring certain State civil rights, such as his right to vote, and to obtain a license to work in certain occupations from which he had been barred by state law. He was also informed that his Clemency Discharge was considered a neutral discharge, neither honorable nor less than honorable.
11. On 28 January 1980, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.
12. On 13 October 2005, the ABCMR denied the applicant's request for an upgrade of his character of service.
13. In 2003, the applicant requested VA consideration for service- connected for PTSD and seven additional conditions. The available evidence does not show which of these conditions, except for PTSD, he was granted disability ratings for.
14. In his 2010 medical statement Dr. R____ B____, PhD, stated the applicant reported he had been involved in several combat operations of a clandestine nature in Laos, Cambodia, and Vietnam including one where the applicant killed young children with a .50 caliber machinegun. He reported that the applicant has been treated with antianxiety medication for over 20 years.
15. PTSD, an anxiety disorder, was not recognized as a psychiatric disorder until 1980 with the publishing of the Diagnostic and Statistical Manual of Mental Disorders (DSM) III. While PTSD has only been categorized by psychiatrists as a distinct diagnosis since 1980, it has, as early as the Civil War, been described in psychological literature, variously labeled as shell shock, Soldier's heart, effect syndrome, combat fatigue and traumatic neurosis. Although the current label of PTSD is of rather recent acceptance, the idea that catastrophes and tragedies can result in persistent emotional and psychological symptoms is common even among the lay public. Army Regulation 40-501 does not specifically categorize PTSD; however, it does address anxiety or neurotic disorders, which include PTSD, and provides that such disorders are unfitting only if persistence or recurrence of symptoms is sufficient to require extended or recurrent
hospitalization, creates a necessity for limitations of duty or duty in a protected environment or resulting in interference with effective performance of military duty.
16. 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-Ill 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."
17. 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.
18. 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 reexperienced 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.
19. 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.
20. 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.
21. 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?
22. 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.
23. The statutory authority under which this Board was created (Title 10, United States Code, section 1552, as amended) precludes any action by the ABCMR that would disturb the finality of a court-martial conviction. However, the Board may find that the sentence directed to have been inequitable or unjust and modify it as deemed appropriate.
24. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. It provides that a GD is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.
DISCUSSION AND CONCLUSIONS:
1. The applicants court-martial and discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge was commensurate with the applicant's overall record of military service and the regulations at the time.
2. His conduct and efficiency ratings show that he was a valuable and productive Soldier until after his return from Vietnam. The only misconduct of record is his periods of AWOL that commenced after returning from Vietnam.
3. Even after his first reduction to PV1, the applicant's conduct was again rated as "excellent" and he was advanced to PV2. This appears to show the applicant was attempting to reclaim his honor and serve within the appropriate standards. Regrettably, his attempts did not resolve the underlying issue and he again lost rank due to another period of AWOL.
4. The applicant applied for a "Clemency Discharge" and completed the alternative service requirements for a restoration of his civil rights. He was granted a Presidential Pardon and a "Clemency Discharge" on 1 November 1975.
5. The limited available medical information indicates that the applicant had been treated for an anxiety condition for over 20 years prior to the VA affording him the formal diagnosis of PTSD.
6. Taken together the fact that he had an accelerated advancement to SP4, "excellent" conduct and efficiency ratings prior to his return from Vietnam, his advancement to PV2 following his second AWOL, with his successfully completion of the required alternative service for the restoration of his civil rights, his history of a diagnosis of an anxiety disorder in the 1980's, and his current VA diagnosis PTSD, the evidence leads to the conclusion that the applicant was suffering from an anxiety disorder (currently diagnosed as PTSD) at the time of his discharge.
7. While his periods of AWOL cannot be totally ignored, it would be appropriate to grant the applicant an upgrade of his character of service to general, under honorable conditions.
8. The applicant was discharged by reason of court-martial sentence. Because the law precludes the Board from disturbing the finality of a court-martial conviction, it would not be appropriate to change the reason for the applicant's separation.
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:
a. upgrading the applicant's characterization of service to general, under honorable conditions;
b. voiding the applicant's 30 November 1972 DD Form 214; and
c. issuing him a new DD Form 214 for the same date showing a characterization of service of 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) AR20150003006
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ABCMR Record of Proceedings (cont) AR20150003006
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