IN THE CASE OF:	  

		BOARD DATE:	  27 August 2015

		DOCKET NUMBER:  AR20150004025 


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 to a general discharge and that he be issued a more favorable narrative reason for separation.

2.  The applicant states, in effect, that he request an upgrade of his discharge based on the Secretary of Defense’s guidance regarding veterans who have been diagnosed with post-traumatic stress disorder (PTSD).  He goes on to state that he had been diagnosed as having PTSD caused by trauma he experienced while serving in Vietnam.

3.  The applicant provides copies of clinical service notes, DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and his diagnosis of PTSD.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant’s undesirable discharge be changed to show he was discharged or retired by reason of permanent disability or as an alternative, that his discharge be upgraded to a general discharge with a more favorable narrative reason for separation. 

2.  Counsel states, in effect, that the applicant was assigned as an infantry in Vietnam and after 3 months in country he contracted malaria and was sent to Okinawa for 6 months to recover.  He was returned to Vietnam for 2 months before departing Vietnam.  He goes on to state that the applicant’s problems began after his first three months in Vietnam when he began to experience the effects of PTSD due to one-half of his company being killed in combat.  He goes on to state that rather than providing the applicant with the proper treatment, his commander elected to discharge him instead with an undesirable discharge and denying him VA medical he needed.  He further states that it is reasonable to presume that the applicant’s PTSD-related conditions existed at the time of his discharge because he was diagnosed as having a severe passive-aggressive personality disorder and PTSD was not listed as an illness in the Diagnostic and Statistical Manual of Mental Disorders (DSM) until 1980.  Accordingly, his discharge should be upgraded to a general discharge by reason of the convenience of the government or disability retirement.

3.  Counsel provides a 14-page brief explaining the applicant’s application and the arguments he sets forth.

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 with parental consent on 27 February 1965 for a period of 3 years.  He completed his basic training at Fort Knox, Kentucky and his advanced individual training as an Infantry Direct Fire Crewman at Fort Gordon, Georgia and his airborne training at Fort Benning, Georgia   He remained at Fort Benning and was assigned to Company C, 2nd Battalion, 8th Cavalry Regiment, 1st Cavalry Division.

3.  On 20 August 1965, he was transferred to Vietnam with his unit and on 22 December 1965, he was transferred to Okinawa to a medical holding detachment.  

4.  Nonjudicial punishment (NJP) was imposed against him on:

* 14 March 1966 for being absent from bed check
* 18 March 1966 for failing to report to his appointed place of duty and being absent from bed check
* 21 March 1966 for failing to report to his appointed place of duty
* 15 April 1966 for being absent from his appointed place of duty 
* 23 April 1966 for being absent from his appointed place of duty
* 27 April 1966 for breaking restriction 

5.  He was convicted by a special court-martial on 3 June 1966 of stealing by means of force and violence $8 from another person and being AWOL from on or about 20 May to 23 May 1966.

6.  On 16 June 1966, he was returned to his unit in Vietnam and on 6 August 1966, he departed Vietnam and was transferred to Valley Forge General Hospital in Phoenixville, Pennsylvania and remained there until 23 September 1966 when he was transferred to Fort Campbell, Kentucky.

7.  NJP was imposed against him on 19 November 1966 for being absent from his place of duty.

8.  NJP was imposed against him on 9 December 1966 for being AWOL from     1 December to 9 December 1966.

9.  He was convicted by a special court-martial on 17 March 1967 of being AWOL from 26 January to 1 March 1967.

10.  He was convicted by a special court-martial on 20 October 1967 of being AWOL from 5 June to 4 July and 4 August to 19 September 1967.

11.  On 27 March 1968, he was convicted by a special court-martial of being AWOL from 27 October to 6 March 1968.

12.  On 8 April 1969, the applicant wrote a letter to the President of the United States requesting his assistance in obtaining a discharge from the Army.  He went on to state that his records had been lost from November 1965 to January 1967 and he was only receiving $30.00 pay per month.  In August 1966, he started receiving his base pay and in January 1967 he received a check for $1,218.89.  He requested leave and his request was denied so he went AWOL.  He went on to state that every time he returned he was harassed and he wanted out of the Army because he was not doing the Army any good.

13.  On 3 May 1969, he was convicted by a special court-martial of being AWOL from 11 November 1968 to 29 January 1969 and 3 February to 8 April 1969.

14.  On 3 June 1969, he underwent a psychiatric evaluation and was diagnosed as having a passive-aggressive personality disorder, severe.  The examining official stated that the disorder was not medically disqualifying but should be considered in his further training or administrative disposition.

15.  On 8 July 1969, his commander notified him that he was being recommended for separation from the service for unfitness under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability).  The commander advised the applicant of his right to present his case before a board of officers, submit any statements in his behalf, and to be represented by military counsel.

16.  On 11 July 1969, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action against him under the provisions of Army Regulation 635-212 for unfitness.  The applicant waived consideration by a board of officers and waived a personal appearance.  The applicant stated that he was not submitting statements in his own behalf and that he waived counsel.

17.  The applicant acknowledged that, as the result of issuance of a discharge under honorable conditions, he may expect to encounter substantial prejudice in civilian life.  The applicant further acknowledged that, as the result of issuance of a discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both federal and state laws and that he may expect to encounter substantial prejudice in civilian life.

18.  On 24 July 1969, his commander recommended the applicant be discharged before the expiration of his term of service under the provisions of Army Regulation 635-212.  Discharge was recommended because of repeated and lengthy periods of AWOL, excessive time lost in the service, resistance to authority and regulations, and a pattern of behavior which rendered him a complete loss to the service.  However, there was no evidence of the applicant having any unfitting conditions that prevented him from performing his duties.

19.  On 5 August 1969, the appropriate authority approved the recommendation for discharge under the provisions of Army Regulation 635-212 and directed the applicant be furnished an Undesirable Discharge Certificate.

20.  On 14 August 1969, he was discharged for unfitness under the provisions of Army Regulation 635-212 and issued an Undesirable Discharge Certificate.  He completed 2 years and 28 days of total active service that was characterized as under conditions other than honorable.  He had 316 days of time lost and 453 days of time lost subsequent to his normal expiration of term of service.  His only individual awards consisted of the Combat Infantryman Badge and Parachutist Badge.

21.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

22.  The applicant was diagnosed on 17 November 2009 by a licensed clinical social worker (LCSW) as suffering from PTSD. 

23.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 6a of the regulation provided that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate.

24.  Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations) currently sets forth the basic authority for the separation of enlisted personnel.  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.

25.  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.  

26.  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."        

27.  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.

28.  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. 

29.  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 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.  

30.  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.

31.  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?

32.  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.

33.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states disability compensation is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  

34.  The Army's determination of a Soldier's physical fitness or unfitness is a factual finding based on the individual's ability to perform the duties of his or her grade, rank, or rating.  If the Soldier is found to be physically unfit, a disability rating is awarded by the Army and is permanent in nature.  The Army system requires that the Soldier only be rated as the condition(s) exist(s) at the time of the Physical Evaluation Board hearing.  The VA may find a Soldier unfit by reason of a service-connected disability and may even initially assign a higher rating.  The VA's ratings are based on an individual's ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's discharge proceedings for unfitness were conducted in accordance with law and regulations in effect at the time.  The characterization of the applicant's discharge was commensurate with the reason for discharge and overall record of military service in accordance with the governing regulations in effect at the time.

2.  At the time of the applicant's discharge, PTSD was largely unrecognized by the medical community and DOD.  However, both the medical community and DOD now have a more thorough understanding of PTSD and its potential to serve as a causative factor in a Soldier's misconduct when the condition is not diagnosed and treated in a timely fashion.

3.  Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible recharacterization of their overall service.

4.  A review of the applicant's record and the evidence that he provided shows that he was subjected to the ordeals of war while serving in the Vietnam War.

5.  Subsequent to these experiences, medical evidence shows the applicant was diagnosed with PTSD/PTSD-related symptoms by a competent mental health professional.  Therefore, it is reasonable to believe the applicant's PTSD condition existed at the time of discharge.

6.  The applicant's record is void of any serious previous misconduct during this period of service and the misconduct of going AWOL appears to have been the result of an uncharacteristic lapse in judgment.

7.  It is concluded that the applicant's PTSD conditions were a causative factor in the misconduct that led to the discharge.  After carefully weighing that fact against the severity of the applicant's misconduct, there is sufficient mitigating evidence to warrant upgrading the characterization of the applicant's service to a general discharge under honorable conditions.

8.  However, in weighing the same factors, the applicant’s overall service does not rise to a fully honorable character of service.

9.  Additionally, the applicant’s contention that he should be granted a separation for disability or medical retirement appears to lack merit.  There is insufficient evidence to show that he had any unfitting conditions that prevented him from performing the duties of his grade, rank, or rating.  Accordingly, his narrative reason for separation appears to be correct and absent evidence to show otherwise, there appears to be no basis to change it.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

_____X___  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing the applicant's DD Form 214 for the period ending 14 August 1969 to show the characterization of service as "General, Under Honorable Conditions."

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to changing the narrative reason for his separation to a more favorable reason or separating him for medical reasons.  



      _______ _   _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)                                         AR20150004025





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ABCMR Record of Proceedings (cont)                                         AR20150004025



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