IN THE CASE OF:	  

		BOARD DATE:	 2 July 2015

		DOCKET NUMBER:  AR20150003183


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, in effect, an upgrade of his discharge characterization, from under honorable conditions (general) to honorable.  

2.  The applicant states, in effect, that his discharge should be upgraded since he suffers from post-traumatic stress disorder (PTSD), and relevant discharge policies and procedures are more favorable now since the Secretary of Defense (SECDEF) published his memorandum with new guidance on the topic.  He was diagnosed by the Department of Veterans Affairs (VA) with PTSD some 40 years after his return from the Republic of Vietnam in 1968.  

3.  The applicant provides the following as evidence:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty) 
* his VA Rating Decision, dated 18 November 2008 
* a copy of his examination summary extracted from the Veterans Health Information Systems and Technology Architecture (VISTA) database, documenting his treatment at the VA Medical Center in Baltimore, MD, subject: Initial Evaluation for PTSD
* Secretary of Defense memorandum, subject: Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming PTSD, dated              3 September 2014
* five support statements, dated in 1980
* a copy of his rèsumè

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 was appointed as a Reserve commissioned officer of the Army, in the infantry branch, on 27 January 1962.  He entered active duty on 15 March 1962.  He was later branch transferred to the Adjutant General Corps on or about 23 September 1968.  

3.  He served in the Republic of Vietnam during the period 24 September 1967 to 20 September 1968.  He was assigned to Headquarters and Headquarters Company, Americal Division (23rd Infantry Division), U.S. Army Pacific, Republic of Vietnam, as an Assistant G-1 during this period.     

4.  A review of his records indicates:

     a.  On 29 April 1980, he received a General Officer Letter of Reprimand, from the Commanding General (CG), U.S. Army Military Personnel Command (MILPERCEN), for engaging in instances of misconduct in that he requested and accepted from the VA educational allowances that he was not entitled to receive on several occasions and falsified military orders in regard to a permanent change of station.

     b.  A U.S. Army Criminal Investigation Division (CID) Report of Investigation, dated 13 June 1980, reveals he was investigated for forgery, larceny, attempted larceny, and making a false official statement.  The report stated an investigation disclosed that the misconduct occurred between 31 March 1976 and 25 October 1978.  In a follow-on report the charge of larceny was deleted.  

     c.  On 27 June 1980, the CG, MILPERCEN notified the applicant of his intent to recommend that he be eliminated from the Army by reason of moral or professional dereliction; that his recommendation would be based on the existence of intentional misstatements of fact in official records for the purpose of misrepresentation, acts of personal misconduct, larceny or wrongful appropriation, and conduct unbecoming an officer; and that the basis for the action was the same as the information contained in the letter of reprimand.

     d.  On 13 August 1980, the CG, MILPERCEN, advised the applicant that the recommendation for his elimination from the Army because of moral or professional dereliction had been approved for processing.  He was now being offered the option to submit his request for resignation in lieu of elimination proceedings or submit statements on his behalf that would appear before a Department of the Army board for determination as to whether he should be eliminated from the Army.  He declined to submit a resignation request in lieu of elimination processings. 

     e.  On 28 October 1980, a Department of the Army board convened and determined that he should show cause for his retention in the Army.   

     f.  On 13 November 1980, The Adjutant General, U.S. Army Military District of Washington, advised him that he was required to show cause for retention in the Army.  The applicant, after being advised by counsel, elected to appear before a board of inquiry to show cause for retention.  

     g.  On 17 December 1980, a board of inquiry found that he did issue false military orders, that he did withhold funds he was not authorized to have received, that he did make an intentional misstatement of fact in official records for the purpose of misrepresentation, that he did commit acts of personal misconduct, and that he did exhibit conduct unbecoming of an officer.  In view of the foregoing, the board recommended that he be eliminated from the service with an under honorable conditions (general) discharge.

     h.  On 19 January 1981, he received a copy of the board's proceedings and was notified that his case would be considered by a board of review and that if the board determined that he should not be retained his case would be referred to the Secretary of the Army for final action.  If the board determined he should be retained, his case would be closed.  

     i.  On 22 June 1981, the Deputy Assistant Secretary (Department of the Army Review Boards and Personnel Security) approved the recommendation that he be eliminated from the Army with an under honorable conditions (general) discharge.  

5.  Accordingly, he was discharged on 15 July 1981.  The DD Form 214 he was issued shows he was discharged by Headquarters, Department of the Army message and under the provisions of Army Regulation 635-120 (Personnel Separations – Officer Resignations and Discharges), chapter 10, for unacceptable conduct (moral or professional dereliction) with an under honorable conditions (general) characterization of service.  He completed 19 years,              4 months, and 1 day of net active service.  

6.  His military records are void of any documentation that shows he suffered from, sought medical treatment for, or was diagnosed with PTSD or any other medical issue or mental condition during his period of active military service.  

7.  He received a personal appearance hearing before the ABCMR on 17 March 1982, wherein he requested the Board void his under honorable conditions separation and restore him to active duty with all rights and privileges.  On 4 May 1982, the Assistant Secretary of the Army (Manpower and Reserve Affairs), signed a memorandum that denied his request for correction of his military records.   The applicant also applied to the ABCMR in September 2011 for reconsideration of his 1982 case; however, his request was outside the one year period for submission of requests for reconsideration set forth in Army Regulation 15-185 (ABCMR), and as a result, his request was not considered.  

8.  The applicant provides:

     a.  A VA decision letter, dated 18 November 2008, for the claim he filed on   11 June 2008.  The VA granted him a 50% disability rating for his service-connected PTSD and depression, effective 11 June 2008.

     b.  A Baltimore VA Medical Center (three page) printout, subject: Initial Evaluation for PTSD.  This evaluation concluded with a diagnosis of PTSD and depressive disorder not otherwise specified linked to PTSD and current life circumstances. 
 
     c.  Five letters of support from senior leaders whom the applicant worked for.  These letters provided support for his board of inquiry during 1980.  They all mentioned that the applicant was a very capable, enthusiastic, and dedicated professional.

     d.  A rèsumè with cover letter that outlines his work history, experience, and strengths.

9.  Army Regulation 635-120 (Personnel Separations – Officer Resignations and Discharges) at the time prescribed means and procedures whereby an officer on active duty may tender his or her resignation or be discharged from the Army.  Chapter 10 states, in pertinent part, that an officer who has been recommended for elimination by a general court-martial convening authority or who has been selected by a Department of the Army selection board for elimination or to show cause why he/she should not be eliminated pursuant to chapter 5, Army Regulation 635-100, may request discharge in lieu of elimination.  Upon final approval by the Secretary of the Army of elimination proceedings against any officer, that officer will be discharged as the result of such proceedings.  Requests for discharge under the provisions of this chapter will be prepared if the officer is being considered for elimination for moral or professional dereliction or in the interests of national security.         

10.  Army Regulation 600-8-24 (Officer Transfers and Discharges) states an officer will normally receive an honorable characterization of service when the quality of the officer's service has met the standards of acceptable conduct and performance of duty for an officer.  An officer will normally receive an under honorable conditions characterization of service when the officer's military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  
	
11.  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." 

12.  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.

13.  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. 

14.  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 (UOTHC) 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.  

15.  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 (emphasis added).

16.  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?

17.  Although the DOD acknowledges that some Soldiers who were administratively discharged UOTHC 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 (emphasis added).  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 (emphasis added).  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 request for an upgrade of his general characterization of service to an honorable characterization was carefully considered.  

2.  His contention that he was diagnosed with PTSD has been noted; however, his military record was void of such documentation.  He does provide a copy of his examination summary that documents his PTSD and depressive disorder diagnoses from the VA Medical Center in Baltimore, MD.  He provides a VA claim decision letter, dated 18 November 2008, that awarded him a 50% service-connected disability rating, in which PTSD was one of the medical diagnosis that was listed.  Therefore, it can be surmised that he was diagnosed with PTSD by the VA after he left the service.  

3.  Regardless, a post-service PTSD diagnosis, by itself, is not sufficient to prove an error or injustice in his separation processing as it occurred.  Additionally, the SECDEF directive he cites in his application applies to cases involving veterans who received an UOTHC discharge.  The applicant did not receive an UOTHC discharge; therefore, the cited SECDEF directive does not apply in this case.

4.  The evidence of record shows his separation processing for misconduct was accomplished in accordance with the applicable regulations.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The type of discharge directed and the narrative reason for his separation therefore were appropriate considering all the facts of the case.

5.  The applicant was directed to appear before a board to show cause on why he should remain on active duty for unacceptable conduct.   He compromised the special trust and confidence placed in him as a commissioned officer and had the duty to support and abide by the Army's policies and regulations and knowingly risked his military career.  This misconduct clearly diminished the quality of his service below that meriting a fully honorable discharge as evident by the board of inquiry recommending he be discharged from the Army.  

6.  An honorable character of service is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel and an under honorable conditions character of service is appropriate for those Soldiers whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge.  
	
7.  The applicant's military service was marked by a number of serious incidents involving misconduct.  His contention that his diagnosis PTSD was the cause of his misconduct and should be upgraded based on the SECDEF directive is without merit.  Therefore, his overall record of service did not support the issuance of a fully honorable discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

8.  In view of the foregoing, there is no basis for granting the applicant 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)                                         AR20150000002



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ABCMR Record of Proceedings (cont)                                         AR20150003183



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