IN THE CASE OF:	  

		BOARD DATE:	  19 May 2015

		DOCKET NUMBER:  AR20150003015 


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 upgrade of his under other than honorable conditions (UOTHC)  discharge to general because he has post-traumatic stress disorder (PTSD) from Vietnam.

2.  The applicant states his PTSD contributed to his being absent without leave (AWOL) which was the basis of his discharge.  Prior to going AWOL, his service was exemplary, but that was given no consideration as a mitigating factor during his discharge proceedings.  He also states:

* he turned the stress of war inward and a fair evaluation of that result on his psyche and soul is long overdue and is an integral part of evaluating the request to upgrade his discharge
* a fair evaluation of the psychological effects of war is owed those who defend the country
* we honor the fallen and forget the survivors
* combat gives the Soldier a sense of purpose but the absence of all the things that make life worth living back home tends to make them into adrenalin junkies and unfit for normal life back home
* Soldiers who fought the war were blamed for the war and, because America has tried to forget Vietnam, Vietnam veterans are left to face an inordinate guilt not only for the things they did but also for the war itself
* he was being sent to drill instructor school to prepare new Soldiers when he didn't know what to do with himself
* he didn't fit in with so called garrison Soldiers who had never been to war and was soon abusing marijuana and alcohol and engaging in risky behavior, he even participated in anti-war demonstrations although he knew that would get him into trouble
* after he got into minor trouble for missing formations and speeding on post he was slotted as an overseas replacement and told he was going back to Vietnam 
* he felt betrayed, had alienated everyone he cared about, and freighted away his family; so, he picked up his nightmares and ghosts and headed for New Jersey and later Canada
* Vietnam veterans paid the price for America's arrogance
* "At an intuitive level many Vets recognize the vicarious nature of the suffering we still experience.  The National attempt to ignore our experience and revise the Vietnam story by scapegoating the press, the military, the Vets themselves or the anti-war movement  has merely added to our sense of betrayal.  In fact, it compounds our suffering by giving us the impression that our sacrifices were indeed in vain."  
* the applicant provides his personal statement about his PTSD symptoms, plus the same documents as are also listed below as "Counsel provides"

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel, an accredited veteran's service representative, requests upgrade of the applicant's discharge.

2.  Counsel states – 

* the applicant legally changed his name after his military service
* the discharge was upgraded to general under Public Law 95-126 in 1978
* after 4 decades, the applicant still has PTSD symptoms 
* the Department of Veterans Affairs (VA) denied the applicant's claim in March 2007 and currently it is in the appeals process
* the VA stated the applicant's general discharge was not "legitimate"
* after 40 years he still exhibits enough PTSD symptoms to warrant a formal diagnosis
* the applicant has been incarcerated since 1972 for a capital crime
* during the civilian court proceedings, the applicant's “Post Vietnam Syndrome” was described by a court appointed psychologist
* “Post Vietnam Syndrome” is known as PTSD since 1981
* based on the Secretary of Defense's recent guidance concerning Soldiers with less than an honorable discharges whose PTSD might have been a factor, the Board should grant the applicant a favorable decision which would assist him in obtaining a service connected rating for PTSD



3.  Counsel provides – 

* DD Form 215 (Correction to DD Form 214) showing a general discharge under the Special Discharge Review Project (SDRP) was warranted
* affidavits from applicant's mother and grandmother 
* Mississippi Scale and Keane PTSD tests administered by the VA in 2005
* VA Statement in Support of Claim, dated 26 April 2005
* VA Compensation Exam Report , dated 29 September 2006
* VA letter denying benefits due to nature of discharge
* "Excerpt from Bucks County Court transcript of veteran's criminal trial – 1972"
*  brief by Tim S____ , Vietnam Veterans of America, to Court of Veterans Appeals, dated 20 October 2011

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 27 May 1966, completed training as an infantryman, was stationed in Germany, was honorably discharged and immediately reenlisted as a specialist four (E-4) on 13 July 1967.  From 6 March 1968 through 17 February 1969, he served in Vietnam as an infantry mortar squad leader and mortar instructor and was awarded the Army Commendation Medal (ARCOM) and the Combat Infantryman Badge (CIB).

3.  He returned to the United States and was assigned as a mortar instructor and then sent to drill sergeant instructor training while stationed at Fort Jackson, SC.  

4.  His record shows he accepted nonjudicial (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three occasions as follows:


* 20 November 1967, operating a motor vehicle without a proper license
* 23 May 1969, failure to go to his appointed place of duty on 10 May 1969 and failure to go at the time prescribed on 12 May 1696
* 9 September 1969, failure to obey posted speed limits on post

5.  The applicant went AWOL on 29 January 1970.  A commander's inquiry, dated 30 January 1970, states the possible reason for the applicant's AWOL was his pending civilian charges for bigamy.  In addition, the applicant was the unit mail clerk and it was alleged that he had stolen and forged checks from unit personnel while in the performance of his mailroom duties.

6.  On 31 August 1971, a military police report shows Federal Bureau of Investigation (FBI) agents apprehended the applicant and returned him to military control.  He was transported from Philadelphia, PA to Fort George G. Meade, MD for further processing. 

7.  On 13 September 1971, charges were preferred against the applicant for AWOL for the period 28 February 1970 to 30 August 1971.  The applicant consulted with counsel and was advised of his rights and options.  He voluntarily submitted a formal request for discharge for the good of the service in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) chapter 10.  He acknowledged that, if the request was accepted, he could receive a discharge under other than honorable conditions and be furnished Undesirable Discharge Certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran, including those administered by the Veterans Administration (VA), and that he could expect to experience substantial prejudice in civilian life.  He declined to submit statements in his own behalf.  The applicant and counsel authenticated the form on 16 September 1971.

8.  On 27 September 1971, the applicant's commander recommended his separation for the good of the service in lieu of trail by court-martial.  He recommended issuance of an Undesirable Discharge Certificate with a characterization of UOTHC.

9.  The discharge authority's decisional document is not in the applicant's official military personnel record (OMPF) or available for the Board's review.  However, on 12 October 1971, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10.  He was issued a DD Form 214 (Report of Separation from Active Duty) that shows he had 3 years, 10 months, and 10 days of active service with 551 days lost time.
10.  On 25 May 1977, the Army Discharge Review Board (ADRB) reviewed the applicant's discharge and determined that a general under honorable conditions was warranted under the provisions of the Department of Defense (DoD) SDRP.  The decision was based on the applicant's completion of a tour in the Republic of Vietnam, award of a decoration other than a service medal, and a record of satisfactory active military service for 24 months prior to his AWOL and subsequent discharge.

11.  The applicant's initial discharge dated 12 October 1971 was voided per the ADRB SDRP decision and a new DD Form 214 was prepared that shows his character of service as under honorable conditions.  Item 27 (Remarks) states, "Upgraded under the DoD Discharge Review Program (Special).  Date applied for discharge upgrade:  22 Apr 1977.  Date discharge was upgraded:  25 May 1977.  Character of service prior to upgrade:  under other than honorable conditions."   

12.  On 19 May 1978, the ADRB reviewed the applicant's discharge under the provisions of Public Law 95-126.  The ADRB noted that prior to his lengthy AWOL the applicant's overall record was excellent and specifically considered his completed combat tour in Vietnam for which he was awarded the CIB and the ARCOM.  The board rejected the issue of “Vietnam Syndrome” as suggested by the reviewing officer and the lack of public support for the war in the continental United States as a reason for the applicant's extended absence.  Nevertheless, the ADRB members unanimously decided that the matters were not sufficiently mitigating to justify affirming the applicant's SDRP general discharge under the historically consistent standards required by Public Law 95-126.

13.  On 3 August 1978, the applicant was sent the ADRB decision by letter which states the decision did not change his current discharge (general, under honorable conditions), but could impact his ability to acquire VA benefits.

14.  On 15 August 1978, a DD Form 215 was issued to the applicant that corrects item 27 (Remarks) to show, "Disch [discharge] reviewed UP [under the provisions] of PL [public law] 95-126 and a determination made that [applicant's] characterization of service was warranted UP of DoD SDRP 4 Apr 77."

15.  The applicant and his counsel provided in support of his application: 

	a.  An extract from the court transcript of the October 1972 trial of the applicant for the murder of a police officer shows that Dr. Robert D. S____, a licensed clinical psychologist, testified about his psychological evaluation of the applicant included a sodium amatol interview.  The doctor's opinion can be reasonably described by the following paragraph:
The psychological test data I gave and the interview data led me feel that at this point that there is an important relationship between [the applicant's] Vietnam experience and the crimes for which he had been charged.  For one thing, I felt that it was possible to substantiate major changes in his personality subsequent to his Vietnam experience.

   b.  The doctor also testified that he considered the applicant able to distinguish right from wrong and to adhere to the right.  The doctor described the research that this case led him to conduct into the condition then most frequently described as “Post Vietnam Syndrome.”

	c.  The letters from the applicant's mother and grandmother describe personality changes in the applicant after he returned from Vietnam.  He could no longer communicate, he wouldn't look people in the eye, and he seemed to be going through the motions of life.  His only emotion seemed to be anger.  He had horrible nightmares.

	d.  The clinical psychologist completing the VA Compensation and Pension Report, dated 29 September 2006, noted that the applicant was serving a life sentence for murder, provided a diagnosis of PTSD-mild-chronic, and noted: 

* the veteran describes several specific situations and events which could meet DSM-IV criteria for exposure to traumatic stressor
* these reports appear (emphasis added) to be verifiable
* the veteran reports symptoms consistent with PTSD including hype- alertness, irritability, difficulty socializing, feelings of guilt, emotional numbing and avoidance  

16.  References concerning discharge character of service:

   a.  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.
   
   
   b.  On 4 April 1977 the Department of Defense (DoD) directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973.  This program, known as the DoD SDRP, required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.

   c.  In October 1978, Public Law 95-126 was enacted.  This legislation denied VA benefits to any former service member who had been AWOL for more than 180 consecutive days, or who had been classified as a deserter or a conscientious objector.  The DoD was required to establish historically consistent, uniform standards for discharge reviews.  Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs.  Individuals whose SDRP upgrades were not affirmed upon review under these historically consistent uniform standards were not entitled to VA benefits unless they had been entitled to such benefits before their SDRP review.

17.  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." 

18.  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.

19.  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. 

20.  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.  

21.  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.

22.  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?

23.  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.  The ADRB SDRP upgraded the applicant's discharge to general, under honorable conditions and he was issued a new DD Form 214.  His initial DD Form 214 was voided.  However, the ADRB did not affirm the applicant's upgraded discharge UP of Public Law 95-126.  Therefore, based on his excessive period of AWOL of more than 180 consecutive days and his desertion, by law he is not entitled to VA benefits.  He retained his general, under honorable conditions discharge.

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 with a UOTHC discharge subsequent to a traumatic event warrant careful consideration for the possible recharacterization of their overall service.

5.  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 the RVN.  Of particular note are the facts that he was a combat infantryman and that he had to adjust to stateside duty at a time when the My Lai massacre was becoming public knowledge and the anti-war movement was growing. 

6.  There is no evidence of diagnosis of or treatment for any mental or emotional problems prior to his October 1971 discharge.  Nevertheless, the psychologist's testimony at his October 1972 trial for murder strongly suggests that PTSD symptoms, commonly referred to at the time as the “Vietnam Syndrome”, were present and he has since been diagnosed by the VA with PTSD.

7.  By submitting post-service evidence the applicant has invited consideration of his post-service conduct and a record PTSD simply cannot justify.  He may have had PTSD (psychological impairment was argued at his trial) but he was convicted of murder post service.

8.  It is concluded that the PTSD is not sufficiently mitigating evidence to warrant upgrading the characterization of the applicant's service from a general, under honorable conditions discharge to an honorable discharge.  It is apparent from the applicant's request that he does not understand he retained the general, under honorable conditions discharge; it just was not affirmed by the ADRB.  The lack of affirmation of the upgrade led to a denial of benefits by the VA by law.  Nor does the Secretary of Defense guidance support any further upgrades because the administrative review with consideration for PTSD is for former Soldiers who received an UOTHC discharge.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   __X_____   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20150003015



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ABCMR Record of Proceedings (cont)                                         AR20150003015



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