IN THE CASE OF:	  

		BOARD DATE:	  28 May 2015

		DOCKET NUMBER:  AR20150003297 


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 an honorable discharge (HD).

2.  The applicant states his service in Korea and Vietnam led to his post-traumatic stress disorder (PTSD).  He continues stating: 

   a.  Had this condition been known at the time of his service, he would have been separated with an honorable characterization of service, vice under other than honorable, for two reasons.  

   (1)  Because he would have received treatment and medication that would have curbed the symptoms of PTSD.  Had this occurred, he would have never committed the misconduct that led to his discharge. 
   
   (2)  A diagnosis of PTSD would have served as an absolute defense to the assault charges that ultimately led to his separation.  
   
   b.  In accordance with the Secretary of Defense's Memorandum, dated 3 September 2014, he requests the Board upgrade his characterization of service to honorable.
   
   c.  He has been diagnosed with lung cancer as a result of Agent Orange exposure in Korea and Vietnam and wishes to have his discharge upgraded to reflect the sacrifices that continue to negatively impact his life.
   
   d.  The applicant states during his deployment to Korea he was exposed to hundreds of explosions, with rockets constantly being fired into his encampment with, on one occasion, the loss of 43 Soldiers.
   
   e.  He was first diagnosed with PTSD in 1990, prior to this point he had avoided the VA medical facility.  He states this changed when he realized he needed to stop his self-destructive behavior.  
   
   f.  He has since been diagnosed with an alcohol dependency, antisocial personality disorder, lung cancer, and chronic PTSD.

3.  The applicant provides copies of the following as enclosures –

* a person statement outlining his recollections of his service
* 30 September 1968 enlistment contract
* Standard Form 89 (Report of Medical History)
* pages 2 and 3 of his DA Form 20 (Enlisted Qualification Record)
* seven pages from his Department of Veterans Affairs (VA) Medical Records 
* 23 July 1970 DD Form 214 (Report of Transfer or Discharge)
* 24 July 1970 enlistment contract
* 31 May 1973 Clemency and Parole Review proceeding 
* 13 August 1973 Standard Form 93 (Report of Medical History) 
* four pages of service medical records
* Illinois Department of Corrections Mental Health Assessment
* two pages of service medical records

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 30 September 1968 and reenlisted on 24 July 1970.  He served in Korea from 15 April 1969 – 14 May 
1970 and in Vietnam from 10 March 1971 – 31 December 1971.  His military occupational specialty is shown as 11E (Armor Crewman).  He was awarded the Combat Infantryman Badge on 4 April 1971.

3.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice as follows – 

* 12 May 1969, for breach of peace by fighting in the orderly room and being drunk on duty
* 16 June 1969, for operating a military motor vehicle in a reckless manner resulting in an accident 
* 4 November 1969, for theft of government property
* 22 July 1971, for disobeying a lawful order from a commissioned officer
* 29 November 1971, for disobeying a lawful order from a commissioned officer
* 3 December 1971, for disobeying a lawful order from a noncommissioned officer (NCO)

4.  The applicant was arrested by civilian authorities and charged with theft by deception on 24 August 1972; no disposition of this case is of record.

5.  On 17 October 1972, after drinking heavily, the applicant threatened and then attacked a fellow Soldier with a knife, cutting that Soldier's throat, chest, and fingers.  The injuries resulted in the victim requiring hospitalization for a month and a half with a tendon graft to his finger.

6.  The original preferred charges were aggravated assault with a dangerous weapon, aggravated assault with a dangerous weapon (resulting in bodily injury); carrying a dangerous weapon (a knife); and two specifications of AWOL.  In a pretrial agreement the charges of carrying a weapon and two specifications of AWOL were withdrawn contingent on his pleading guilty to the assault charges.

7.  On 17 January 1973, a general court-martial found the applicant, in accordance with his pleas, guilty of assault with a dangerous weapon and assault with a dangerous weapon with bodily injury on a fellow Soldier.  The recommended sentence was confinement for 2 years, total forfeiture of all pay and allowances for 2 years, and a BCD. 



8.  On 8 March 1973, the convening authority approval approved the findings and sentence.  Based on a pretrial agreement the confinement and forfeiture was reduced to 1 year.  He directed that, except for the BCD, the sentence be executed and the case be forwarded for appellate review by the Court of Military Review.

9.  On 8 May 1973, the U.S. Army Court of Military Review affirmed the findings of guilt and the sentence.

10.  On his prisoner intake history and evaluation, the applicant acknowledged he had used both alcohol and drugs.  He reported that he was suspended from school in the 11th grade.  He reported that prior to his enlistment when he was stressed his first reaction was avoidance then if that was not possible he tended to blow up.  He was involved in several minor infractions and had spent a year at Boys Town.  The applicant admitted that when he became intoxicated he tended to get violent and do foolish things such as those that led to his incarceration.  He was afforded a mental status evaluation that rendered the diagnosis of adult situational reaction complicated by alcohol use.  

11.  The 18 May 1973 DD Form 1479 (Prisoner Assignment and Clemency Board Action), provided by the applicant, shows three board members voting for and two against granting him restoration to duty with two voting for and three against affording him clemency.  The disciplinary barracks commander, however, denied the recommendation citing the applicant's abuse of alcohol and the fact that the applicant did not consider this problem significant enough to seek assistance in coping with it.

12.  The record contains several additional DD Forms 1479.  All of the evaluations, except the last one, resulted in a denial of a granting of parole and clemency. 

13.  A DD Form 1477 (Prisoner's Progress Summary Data) shows the applicant appeared before the discipline and adjustment board on 29 May 1973 for conduct prejudicial to good order and being disrespectful toward an NCO.

14.  The 31 May 1973 Restoration, Clemency, and Parole Review documents show the applicant reported that he had been under pressure from the AWOL charges, conflicts in the company, and financial problems at home.  He had been drinking heavily and got into an argument with friends.  He admitted he used alcohol and if he gets intoxicated he tends to get violent.  His former commander stated he did not consider the applicant an asset and did not want him in the unit again.  The commander noted that the applicant's use of alcohol interfered with his duties.  
15.  On 21 August 1973 the Army and Air Force Clemency and Parole Board denied the applicant's request to be restored to duty and clemency in his sentence.

16.  Based on his general good behavior, above-average work ratings, and participation in self-improvement courses, including his completing a General Education Deployment (GED), the applicant's confinement was reduced to 10 months.

17.  Upon completion the confinement portion of his sentence, he was discharged on 14 September 1973 under conditions other than honorable.  He had a total of 3 years, 6 months, and 10 days of creditable service with 524 days of lost time.

18.  The applicant's 524 days of lost time are shown as follows –

* 22 December 1970 through 10 January 1971, absence without leave (AWOL) (20 days)
* 4 April 1972 through 22 September 1972, AWOL in desertion (172 days), this AWOL ended by civilian apprehension
* 18 October 1972 through 14 September 1973, confinement (332 days)

19.  The applicant's service medical records show treatment for a dental problem, a cold, ear ache, flat feet, and hypertension.  He was referred to mental hygiene for evaluation of his hypertension but the available records do not include a copy of the findings of the referral.  On several occasions the medical records indicate that alcohol was a contributing factor including on –

* 27 February 1970, the applicant reported to the dispensary under the influence of alcohol for treatment of a burn; he refused full medical treatment
* 18 October 1972, the applicant sustained a laceration to the base of his head from a pool cue, there was a smell of alcohol on the applicant's breath, and he refused treatment and was noted as suffering from dizziness and an alcohol stupor

20.  The available records do not include any reference to either the mental hygiene referral or other mental health treatment.  The 13 August 1973 Report of Medical History shows the applicant checked yes the blocks for dizziness; adverse reaction to serum, drug or medicine; recent weight gain or loss; foot trouble; and nervous trouble of any sort.  None of these areas were commented on in the narrative portion of the report and the medical examination noted all aspects of his examination as normal.
21.  The 25 November 2014 VA Progress Notes, provided by the applicant, are incomplete consisting of only pages 3, 15, 17, 110, 279, and 283 and are included out of order.  Additionally, those pages provided contain several key items that are redacted (blanked out) including his primary diagnosis.  The notes show the diagnoses of alcohol dependency, antisocial personality disorder, PTSD, and lung cancer (secondary to Agent Orange exposure).  The applicant tested positive for Hepatitis C but failed to show for follow-up for this condition.  The applicant stated he had been drugging and drinking for over 30 years.  He has been able to stop using cocaine/heroin but not alcohol.  On his PTSD assessment, the applicant reported having been exposed to over 200 explosions.  It was noted that he was not in receipt of any service connection disability benefits at that time.

22.  Attempts to verify the alleged attack in the Korean DMZ which the applicant reported as having resulted in the loss of 43 men met with no verifiable results.  A review of the Korean War Educator website reports that the total number of personnel killed in the Korean DMZ from February 1955 through December 1994 as only 60 U.S. service members killed in action during the entire period.  

23.  Recent changes in policy directs that Vietnam Era veterans who have received a discharge under conditions other than honorable and who have received a post-service diagnosis of PTSD are to receive a de nova review of their requests for an upgrade.  The new review policy does not mandate a favorable decision.

24.  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.


25.  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 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."  

26.  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.

27.  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.

28.  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.

29.  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.  

30.  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?

31.  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.

32.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), sets forth the purpose and policies for enlisted personnel separations.  Chapter 3, as in effect at that time, outlines the criteria for characterization of service as follows:

	a.  Paragraph 3-7a states that an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service has met the standards of acceptable conduct and performance of duty.  

	b.  Paragraph 3-7b state that a general discharge (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.  

33.  Title 10, U.S. Code, section 1552, the statutory authority under which this Board was created precludes any action by this Board that would disturb the finality of a court-martial conviction.

34.  Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.




DISCUSSION AND CONCLUSIONS:

1.  At the time of the applicant's discharge, PTSD was not unrecognized as a psychiatric disorder by the medical community and DoD.  However, both the medical community and DoD, as early as the Civil War, described in psychological literature, similar conditions were recognized under the various labels of shell shock, Soldier's heart, effect syndrome, combat fatigue and traumatic neurosis.  Now there is a more thorough understanding of PTSD and its potential to serve as a causative factor in a Soldier's misconduct especially when the condition is not diagnosed and treated in a timely fashion.

2.  The ABCMR has been directed to afford Vietnam Era Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant a careful consideration for the possible recharacterization of their overall service.

3.  The applicant alleges he was diagnosed with PTSD in 1990 but that the records were lost.  The first available diagnosis of PTSD is the 2014 VA assessment.

4.  The applicant's alleged stressors set forth on the VA assessment form, especially those occurring in Korea, cannot be verified by the available records and are questionable in nature.  

5.  The applicant reported that rockets were constantly being fired into his encampment in Korea.  He was present during over 200 rocket attacks.  This would mean that his unit came under rocket attack every other day.  He further stated that during one rocket attack there was a loss of 43 men.

6.  There is no available record of 43 Army personnel being killed at any one time during the period the applicant served in Korea.  In fact, records of Korean DMZ losses between February 1955 and December 1994 show 60 U.S. service members as being lost.

7.  The applicant's service medical records do not contain any documentation of a complaint or treatment for the symptoms most often associated PTSD, with the possible exception of his alcohol-related problems.

8.  The applicant did not provide a complete copy of the 25 November 2014 VA Progress Notes and there are significant items germane to his case that are blanked out on the portion of the report he did provide, most notably his primary diagnosis.

9.  The applicant was diagnosed while on active duty as suffering from adult situational reaction complicated by alcohol use.  His VA diagnoses are shown as alcohol dependency, antisocial personality disorder, PTSD, and lung cancer.

10.  The available evidence shows that applicant had inter-personal problems before he entered active duty.  His first alcohol-related NJP occurred less than a month after his assignment to Korea and was only the first of many alcohol related incidents that continued throughout his entire period of service, including being a factor in the incident that led to his court-martial.

11.  The applicant was court-martialed for aggravated assault and aggravated assault with bodily injury.  These assault charges on his fellow Soldier were by his own admission an alcohol-related incident.  

12.  His service medical records and the correctional facility records show he declined treatment for medical and alcohol problems.  His contention that if he had been diagnosed and treated for PTSD while on active duty is unsupported by any documentary evidence.  His history indicates he would have been more likely to have refused that care as well.

13.  Although the AWOL, which ended by civilian apprehension, and weapons charges were withdrawn at the time of his court-martial, they are significant contributing factors in his history of misconduct.  

14.  Absent convincing evidence that, at the time of the discharge or the behavior that led to the discharge, the applicant was so impaired by psychiatric, psychological, mental, or emotional problems that he could not both tell right from wrong and adhere to the right, the PTSD issue does nothing to demonstrate an error or an injustice in the discharge.

15.  Further, a diagnosis of mental or emotional problems, including PTSD, not amounting to a mental incapacity to tell right from wrong, is not considered an absolute defense to the assault charges.

16.  The applicant's diagnosis of lung cancer secondary to Agent Orange exposure has no bearing on his in-service conduct.

17.  The applicant's performance of duty is not shown to be so meritorious as to outweigh his repeated misconduct, extensive lost time, and the seriousness of the assault charges.  His conduct did not meet the standards of acceptable conduct warranting either an honorable or general 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
      
The 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)                                         AR20150003297



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ABCMR Record of Proceedings (cont)                                         AR20150003297



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