BOARD DATE:	  18 August 2015

		DOCKET NUMBER:  AR20150003112 


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 based on his diagnosis of post-traumatic stress disorder (PTSD).

2.  The applicant states, in effect, that he was shot and when he returned from Vietnam he separated himself from the service due to his drug addiction which was secondary to his PTSD.  He goes on to state that he was self-medicating and developed a drug addiction.  However, he recovered from his addiction and he now has five of the presumptive illnesses of Agent Orange exposure and needs medical assistance.  

3.  The applicant provides no additional documents with his application.

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’s records, though somewhat incomplete, show that he was inducted in Detroit, Michigan on 5 February 1968.  He completed his training as a lineman and was transferred to Vietnam for assignment to the 40th Signal Battalion.

3.  While assigned to Company B, 40th Signal Battalion in Vietnam, the applicant accepted nonjudicial punishment (NJP) for the following offenses: 

* on 30 September 1968, for disobeying a lawful order from a superior noncommissioned officer (NCO)
* on 6 January 1969, for failure to go to his appointed place of duty
* on 24 July 1969, for disobeying a lawful order from a superior NCO

4.  Item 40 (Wounds) of the applicant's DA Form 20 (Enlisted Qualification Record) does not contain an entry to show the applicant received a wound in combat.  The applicant’s name is not listed on the Vietnam Casualty Roster as being injured during combat operations.  A search of the applicant’s available military medical records does not show he was wounded by gunfire or treated for gunshot wounds. 

5.  Headquarters (HQ), U.S. Army Personnel Center, Oakland, CA, Special Orders 225, dated 13 August 1969 show that he returned from his overseas assignment on 31 July 1969.  These orders also show he was being reassigned to the 58th Signal Battalion, Fort Lewis, WA.

6.  The available evidence indicates that he failed to report to Fort Lewis, WA and was placed in an absent without leave (AWOL) status effective 2 September 1969.  He remained absent in desertion until he was returned to military control on 26 April 1971 and signed a Statement of AWOL indicating that he had departed AWOL from 2 September 1969 to 26 April 1971.

7.  A DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence) shows that he again departed AWOL on 13 May 1971 and was apprehended by civilian authorities and returned to military control on 
28 December 1972.

8.  On 2 January 1973, the applicant underwent a medical examination prior to his separation.  He completed a Standard Form 93 (Report of Medical History) wherein he stated that he had been hospitalized due to a gunshot wound to his stomach and that he lost part of his liver.  He also stated he had a liver infection and was taking medication when he was apprehended.  The examining physician completed a physical examination and made no annotations of a gunshot wound or liver problems on the applicant’s Standard Form 88 (Report of Medical Examination).  There are no notes or summaries of defects and diagnosis and there is no recommendation for further examination by medical specialists.  The physician found the applicant qualified for separation with no limiting conditions and a maximum profile rating of "1" for each of the six physical categories to include psychiatric. 

9.  On 10 January 1973, his commander initiated action to discharge him from the service under the provisions of Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct).  The commander cited as the reason for the proposed separation the applicant’s AWOL offenses.

10.  He consulted with counsel and was advised of the basis for the contemplated separation, its effect, and the rights available to him.  He waived consideration of his case by a board of officers, representation by counsel, and elected not to submit a statement in his own behalf.  

11.  On 18 January 1973, the appropriate authority approved the separation action and directed issuance of an Undesirable Discharge Certificate.  On 30 January 1973, he was discharged with his service characterized as under other than honorable conditions (UOTHC).  At the time of his discharge, he had completed 1 year, 7 months, and 21 days of creditable active military service and accrued 1,205 days of time lost.

12.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 15 October 1984 and the ADRB denied his request for an upgrade of his discharge on 29 March 1985.

13.  The applicant applied to this Board for an upgrade of his discharge on 4 August 2010 and he contended at that time that he had been given orders to go home and await his next assignment.  The Board noted that the applicant had orders issued at Oakland Army Base assigning him to Fort Lewis prior to his going AWOL and voted unanimously to deny his request on 24 February 2011.

14.  The applicant’s current application was received by the staff of the Board on 18 February 2015 and on 31 March 2015, the staff of the Board dispatched a letter to the applicant advising him that he must provide medical documents to support his contention of a PTSD diagnosis.  As of this date, the applicant has not provided the required medical documents to support his application. 

15.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  That regulation provided for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action was taken against them which was tantamount to a finding of guilty, for an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of 1 year.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

   a.  An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

   b.  A general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.    

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 states his discharge should be upgraded because he has PTSD and he was shot.  A thorough review of the applicant’s available military personnel and medical records could not determine the circumstances or complete facts surrounding the applicant’s statement that he was shot while in military service.  There is no indication that he was wounded by hostile forces during his service in Vietnam by reviewing typical sources such as his DA Form 20 and Vietnam Casualty Roster.  Though the applicant indicated on his own report of medical history in 1973 that he had been shot, the examining physician did not document any gunshot scars or complications associated with a gunshot wound to the stomach.  

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge and the reasons therefore were appropriate considering all of the facts of this case.

3.  The applicant’s contentions have been carefully considered.  However, they are not sufficiently mitigating to warrant relief when compared to the extensive length of his absences, the lack of mitigating circumstances and his otherwise undistinguished record of service.

4.  His record of indiscipline includes NJP on three occasions while stationed in Vietnam and a total of 1,205 days of lost time.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

5.  The applicant’s contention that his misconduct was caused by PTSD has also been noted and found to lack merit because he did not provide medical evidence to support a diagnosis of PTSD related to his service in Vietnam.  

6.  Accordingly, in the absence of medical records showing a diagnosis of PTSD, there is insufficient evidence at this time to support an upgrade of his 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)                                         AR20150003112



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ABCMR Record of Proceedings (cont)                                         AR20150003112



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