IN THE CASE OF:	  

		BOARD DATE:	  4 June 2015

		DOCKET NUMBER:  AR20150003372 


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 under other than honorable conditions (UOTHC) discharge be upgraded to honorable.

2.  The applicant states:

   a.  He arrived in Vietnam in December 1968.  Due to his size, he served as a tunnel rat.  For months he went on missions and was regularly fired upon by his own people.  He witnessed the killing of Vietnamese, military, and civilian men, women, and children.  After several months his mental health deteriorated to a point that he could no longer sleep, eat, or sit comfortably without feeling terror.

   b.  On three different missions three of his squad members were killed.  During two of the missions two members of his squad were killed by "friendly fire."  As he became unable to function, he was threatened by his commanding officer who said "I am going to get you."  At that point he was convinced that he was going to be killed by one of his own, probably by the commanding officer who threatened him.  

   c.  Soon after, upon being ordered to go on another combat mission, he found his body frozen and incapable of moving.  He was unable to pick up his gear or his weapons.  He has little memory of what occurred after this incident except facing a court-martial.  Based on the horrors he experienced, he believes he suffered from battlefield post-traumatic stress disorder (PTSD) which has gone untreated.  He continues to experience PTSD to this day.  He believes           
his discharge should be upgraded to honorable so he may finally receive the treatment he needs. 

3.  The applicant provides a self-authored statement and numerous documents contained in his official military personnel file.

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 6 March 1967.  He completed training at Fort Polk, LA, and he was awarded military occupational specialty     11B (Light Weapons Infantryman).  

3.  Item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) shows upon completing training at Fort Polk, LA, the applicant went absent without leave (AWOL) while enroute to Vietnam.  He was subsequently dropped from the rolls as a deserter on approximately 8 January 1968.  This form also shows the applicant spent a brief period of time at Fort Dix, NJ, before being placed in confinement at Fort Riley, KS.  

4.  On 15 October 1968, he received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for being absent without authority from the 5th Administration Company (Replacement) located at Fort Carson, CO, for the periods 5 September to 21 September 1968 and 28 September to 6 October 1968. 

5.  The applicant served in the Republic of Vietnam for the period 11 December 1968 to approximately 13 May 1969 with 2nd Battalion, 39th Infantry Regiment, 9th Infantry Division.  

6.  The applicant's DA Form 20B (Insert Sheet to DA Form 20 - Record of Court-Martial Conviction) shows the applicant was tried and found guilty by:
   a.  A special court-martial of being AWOL on 22 March 1969, disobeying a lawful order, and missing movement.  The applicant was sentenced to confinement at hard labor for six months (suspended for six months), reduction in rank/grade to private/E-1, and to forfeit of $63.00 pay per month for six months.  The sentence was adjudged on 3 May 1969 and approved on 13 May 1969.

   b.  A general court-martial for disobeying a lawful command on 3 June 1969.  The applicant was sentenced to confinement at hard labor for one year, forfeiture of $55.00 pay per month for one year, and a bad conduct discharge.  The sentence was adjudged on 27 July 1969 and approved on 29 September 1969.

7.  On 22 December 1969, the U.S. Army Court of Military Review upheld the findings of guilty and found the sentence correct in law and fact and affirmed the findings of guilty and the sentence.

8.  On 2 March 1970, the applicant was discharged under the provisions of paragraph 11-1b, Army Regulation 635-200 (Enlisted Personnel Separations), with a separation program number (SPN) code of 292.  Army Regulation 635-5 (Separation Documents), in effect at the time, showed that SPN code 292 indicated separation of enlisted personnel by reason of "other than desertion (courts-martial)."  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he received a UOTHC characterization of service.  He completed a total of 1 year, 1 month, and 18 days of creditable service with 679 days of lost time.

9.  The applicant provides a self-authored statement in which he states, in effect:

   a.  After he completed training he went on 30 days of leave prior to departing for Vietnam.  His grandmother was distraught because she saw in her dreams that he would be killed.  She told him he did not have to go to Vietnam because she was speaking with someone in authority and he was her only living relative and support.  At that point he went AWOL and stayed with his grandmother for about nine months.  During this time he worked, met a woman, and had a child.

   b.  One evening his grandmother mentioned she could not get him excused from service.  The next day he turned himself in to the military police who told him he was AWOL.  He was sent to Fort Dix, NJ, and confined for approximately 30 days.  He subsequently received orders to Fort Carson, CO, then to Oakland, CA, where he was deployed to Vietnam.

   c.  After additional training in theater, he was made a tunnel rat.  After several months of being shot at and witnessing the killing his mental state began to break down and he became incapable of performing his duties.  Eventually he received a court-martial and served time at Fort Leavenworth, KS.  At no time was he evaluated for mental issues or damage related to his combat service in Vietnam.  After his discharge he was unable to find any of his family so he went to Puerto Rico and lived on the beach.  He later returned to New York and spent years hitch-hiking across the country.

   d.  For years he was spit on, ridiculed and called a baby killer.  He got to the point where he was unable to hold a job, unable to sleep, and was constantly tortured with nightmares of his service in Vietnam.  At some point over the years he saw a psychiatrist in Tuscon, AZ, who diagnosed him with PTSD and placed him on medication.  He has been homeless for over 40 years with no resources or hope.

   e.  In April 2014, he was located by a sister he never knew he had and discovered he had additional family members as well.  Little by little his sister helped reestablish himself among the living.  She assisted him in getting a social security card, state identification, and birth certificate.  His sister encouraged him to go to the Department of Veterans Affairs to find a way to right the wrongs that have occurred to him.  His entire life has been affected by his service in Vietnam and he has become severely mentally disabled as a result of his service.

   f.  He is now 65 years old and in desperate need of medical, dental, and psychiatric care and the benefits associated with his service so he can afford to be treated and maintain a standard of living so he does not have to live on the streets.

10.  There is no evidence that he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 11-1, in effect at that time, stated that an enlisted person would be discharged with a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial imposing a bad conduct discharge.

12.  Army Regulation 635-200, paragraph 3-7a, provides that 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  Army Regulation 635-200, paragraph 3-7b, provides that 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.

14.  Court-martial convictions stand as adjudged or modified by appeal through the judicial process.  In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction.  Rather, it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate.  Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed.

15.  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." 

16.  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.

17.  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. 

18.  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 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.  

19.  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.

20.  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?

21.  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.  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 request to upgrade his UOTHC discharge to an honorable discharge has been carefully examined, evaluated, and considered.

2.  The applicant's disciplinary history revealed a penchant for being AWOL and disobeying orders.  It further shows he had 679 days of lost time in part due to confinement.  His trial by court-martial was warranted by the gravity of his offenses.  His conviction and discharge were effected in accordance with applicable law and regulations.

3.  Any redress by this Board of the finality of a court-martial conviction is prohibited by law.  The Board is only empowered to change a discharge if clemency is determined to be appropriate to moderate the severity of the sentence imposed.  Given the applicant's undistinguished record of service and absent any mitigating factors, the type of discharge directed and the reasons therefore were appropriate.  As a result, clemency is not warranted in this case.

4.  While the applicant claims at one point to have been diagnosed with PTSD by a psychiatrist in Tuscon, AZ, the evidence of record does not show and he has not provided sufficient evidence to confirm his statement that he was diagnosed with service-related PTSD or any other mental condition.  

5.  The evidence of record confirms he disobeyed lawful orders, missed movement, and went AWOL prior to and during his service in Vietnam.  Based on his record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, there is no basis for granting him a general or honorable 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)                                         AR20150003372



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ABCMR Record of Proceedings (cont)                                         AR20150003372



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