IN THE CASE OF:	  

		BOARD DATE:	  4 June 2015

		DOCKET NUMBER:  AR20150004070 


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, the brother of a deceased former service member (FSM), requests reconsideration of his previous request for an upgrade of the FSM's undesirable discharge to a discharge that would allow him to be buried in a Maine Veterans' Memorial Cemetery.

2.  The applicant states:

* the FSM's ashes rest in an urn in his mother's living room waiting on the day when the family can bury him alongside others who fought for their country
* the FSM's life was altered by uncontrollable memories of his time spent fighting in Vietnam
* the memories, terrors, and life-altering symptoms are now recognized as post-traumatic stress disorder (PTSD)
* the FSM did not live the American dream and he was unable to hold a job, sleep peacefully at night, raise a family, socialize outside of a few close-knit people or family, or hold a house for himself and he lived with his mother until his dying days
* he observed the FSM exhibiting symptoms of PTSD and the FSM physically and emotionally shut down from the world around him
* it was difficult to know which medical facilities the FSM may have attended throughout his life and information was difficult to gather
* the FSM's high levels of intoxication were seen as a substance to numb his pain as well as subdue his actions
* a physician noted the FSM had a past history of PTSD and a history of alcohol abuse

3.  The applicant provides:

* self-authored statement
* Army Board for Correction of Military Records (ABCMR) Record of Proceedings for Docket Number AR20130009567, dated 4 February 2014
* extracts of the FSM's medical records
* five unidentified photographs
* extract of Maine Revised Statute, Title 37-B, Section 504 (Maine Veterans' Memorial Cemetery System)
* Certificate of Birth
* death certificate
* Headquarters, 3d Battalion, 26th Artillery Regiment, Summary Court-Martial Order Number 5, dated 26 November 1969
* Congressional correspondence

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130009567 on 4 February 2014.

2.  The applicant provided new arguments and evidence of the FSM's PTSD not previously considered by the Board that warrant consideration at this time.

3.  The FSM enlisted in the Regular Army on 29 June 1967.

4.  The FSM served in Vietnam from 17 July 1968 through 16 July 1969.  He was promoted to the rank/grade of private first class (PFC)/E-3 on 13 July 1969.

5.  On 6 March 1969, the FSM was convicted by a summary court-martial of one specification of willfully disobeying a lawful order on 30 January 1969.  He was sentenced to reduction to the rank/pay grade of private (PVT)/E-2.  On 7 March 1969, the convening authority approved the sentence and he was reduced to pay grade E-2 effective 7 March 1969.

6.  On 26 November 1969, the FSM was convicted by a summary court-martial of one specification of being absent without leave (AWOL) from 24 August 1969 through 5 November 1969.  He was sentenced to reduction to pay grade E-1, forfeiture of pay, and 30 days of confinement at hard labor.  On 28 November 1969, the convening authority approved the sentence, but for confinement, and ordered it executed.  On 28 January 1970, the convening authority vacated the suspended sentence of confinement and ordered it duly executed.  The FSM was reduced to pay grade E-1 effective 28 November 1969.

7.  On 19 February 1970, the FSM was convicted by a summary court-martial of two specifications of willfully disobeying a lawful order on 27 and 28 January 1970.  He was sentenced to 15 days of confinement at hard labor.  On 19 February 1970, the convening authority approved the sentence and ordered it executed.

8.  On 25 April 1970 while serving in the grade of E-2, the FSM was convicted by a summary court-martial of one specification of failing to go at the time prescribed to his appointed place of duty on 18 April 1970.  He was sentenced to forfeiture of pay and 15 days of confinement at hard labor.  On 25 April 1970, the convening authority suspended the sentence to confinement.  On 6 May 1970, the sentence was set aside.

9.  A DD Form 458 (Charge Sheet), dated 19 April 1971, shows the FSM was charged with two specifications of being AWOL from 2 May 1970 through 23 January 1971 and from 8 February 1971 through 17 April 1971.

10.  On 14 May 1971, after consulting with counsel, the FSM requested voluntary discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10.  He acknowledged he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate and the results of such a discharge.  He waived his rights and elected to submit a statement in his own behalf.

11.  In his statement, dated 14 May 1971, the FSM stated:

	a.  He entered active duty in the Army on 29 June 1967 for a 3-year tour.  He was presently 22 years of age and although he entered the Army to better himself, he didn't really feel that he had been successful.  He served a tour in Vietnam and managed to stay out of trouble while there, but he was unable to adjust to garrison life at Fort Sill.  He had received three summary courts-martial while there.

	b.  He had 2 years of good service in the military, but at the present time he was facing a bad conduct discharge that could be imposed by a special court-martial for two specifications of AWOL.  He did not feel he could remain in the service.  He had a job waiting for him in his home State and felt the best thing for him to do was to start over in civilian life and become a productive member of society.

	c.  He used drugs while serving in Vietnam and they contributed greatly to his later problems with the military upon his return to the continental United States.  He had previously been hospitalized for treatment and at the present time he believed he had been rehabilitated.  He participated in the drug seminars at the stockade and did not feel he would become dependent on drugs again.  With his prior record of convictions and the documented record of drug abuse, he did not feel there was any place in the military left for him.  He felt he had served his obligation to the Army through his tour of duty in Vietnam and his good period of service and requested acceptance of his request for discharge.

12.  On 17 May 1971, the FSM's company commander recommended approval of the FSM's request with the issuance of an Undesirable Discharge Certificate.

13.  On 4 June 1971, the separation authority approved the FSM's request under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an Undesirable Discharge Certificate and his reduction to pay grade E-1.

14.  On 9 June 1971, the FSM was discharged accordingly.  His service was characterized as under conditions other than honorable.  He completed 2 years, 9 months, and 29 days of net active service with 402 days of lost time due to AWOL or confinement.

15.  On 24 July 1981, the Army Discharge Review Board denied the FSM's request for an upgrade of his discharge.

16.  The applicant provides, in part, medical records showing the FSM was diagnosed with PTSD in 1992.

17.  PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster.  The Diagnostic and Statistical Manual of Mental Disorders (DSM) is published by the American Psychiatric Association (APA) and 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 nosologic classification scheme.  Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice.  From a historical perspective, the significant change ushered in by the PTSD concept was the stipulation that the etiological agent was outside the individual (i.e., a traumatic event) rather than an inherent individual weakness (i.e., a traumatic neurosis).  The key to understanding the scientific basis and clinical expression of PTSD is the concept of "trauma."

18.  PTSD is unique among psychiatric diagnoses because of the great importance placed upon the etiological agent, the traumatic stressor.  In fact, one cannot make a PTSD diagnosis unless the patient has actually met the "stressor criterion," which means that he or she has been exposed to an event that is considered traumatic.  Clinical experience with the PTSD diagnosis has shown, however, that there are individual differences regarding the capacity to cope with catastrophic stress.  Therefore, while most people exposed to traumatic events do not develop PTSD, others go on to develop the full-blown syndrome.  Such observations have prompted the recognition that trauma, like pain, is not an external phenomenon that can be completely objectified.  Like pain, the traumatic experience is filtered through cognitive and emotional processes before it can be appraised as an extreme threat.  Because of individual differences in this appraisal process, different people appear to have different trauma thresholds, some more protected from and some more vulnerable to developing clinical symptoms after exposure to extremely stressful situations.

19.  The fifth edition of the DSM 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 criterion 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; or

		(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; or

		(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; or

		(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); and

		(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; and

		(6)  sleep disturbance.

	f.  Criterion F – Duration:  Persistence of symptoms (in Criteria B, C, D, and E) for more than 1 month.

	g.  Criterion G – Functional Significance:  Significant symptom-related distress or functional impairment (e.g., social, occupational).

	h.  Criterion H – Exclusion:  Disturbance is not due to medication, substance use, or other illness.

20.  As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis, and treatment of PTSD, the Department of Defense (DOD) acknowledges that some Soldiers who were administratively discharged 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 Soldiers' 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 a temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues for an extended period of time.

21.  On 3 September 2014 in view of the foregoing information, 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 an applicant's service.

22.  BCM/NRs are not courts, nor are they investigative agencies.  Therefore, the determinations will be based upon a thorough review of the available military records and the evidence provided by each applicant on a case-by-case basis.  When determining if PTSD was the causative factor for an applicant's misconduct and whether an upgrade is warranted, the following factors must be carefully considered:

* is it reasonable to determine that PTSD or PTSD-related conditions existed at the time of discharge?
* does the applicant's record contain documentation of the occurrence of a traumatic event during the period of service?
* does the applicant's military record contain documentation of a diagnosis of PTSD or PTSD-related symptoms?
* did the applicant provide documentation of a diagnosis of PTSD or PTSD-related symptoms rendered by a competent mental health professional representing a civilian healthcare provider?
* was the applicant's condition determined to have existed prior to military service?
* was the applicant's condition determined to be incurred during or aggravated by military service?
* do mitigating factors exist in the applicant's case?
* did the applicant have a history of misconduct prior to the occurrence of the traumatic event?
* was the applicant's misconduct premeditated?
* how serious was the misconduct?

23.  Although 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 records 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.  BCM/NRs 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.  BCM/NRs 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.

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

	a.  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.

	b.  Chapter 10 (Discharge in Lieu of Court-Martial) states a member who was charged with an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could have been submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally issued to an individual who was discharged for the good of the service.

DISCUSSION AND CONCLUSIONS:

1.  The FSM was charged for the commission of offenses punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

2.  The FSM's service in Vietnam is noted.  However, unlike the thousands of Vietnam service members who experienced similar circumstances but served honorably and completed their military service, the FSM chose to be AWOL on several occasions.  When he ultimately returned to military control and court-martial charges were preferred against him, he could have elected trial by a court-martial if he felt he was innocent of the charges or if he felt he had any medical conditions that led to his AWOL.  He chose voluntary discharge instead.

3.  Nevertheless, at the time of the FSM'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.  Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible re-characterization of their overall service.

4.  A review of the FSM's records and the evidence provided by the applicant shows the FSM was subjected to the ordeals of war while serving in Vietnam.  His misconduct began while he was in Vietnam and continued after his return from Vietnam.  Years later and subsequent to his Vietnam experiences, medical evidence shows he was diagnosed with PTSD by a competent medical professional.  Therefore, it is reasonable to believe the FSM's PTSD condition existed at the time of discharge.

5.  It is reasonable to conclude the PTSD condition was a causative factor in the misconduct that led to his discharge.  After carefully weighing that fact against the severity of the FSM's misconduct, there is sufficient mitigating evidence to warrant upgrading the character of his service to general under honorable conditions and restoring his rank/grade to PVT/E-2 with an effective date of 7 March 1969.

BOARD VOTE:

___x____  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant amendment of the ABCMR's decision in Docket Number AR20130009567, dated 4 February 2014.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by reissuing his 
DD Form 214 to show his character of service as under honorable conditions (general) and his rank/grade as PVT/E-2 with an effective date of 7 March 1969.



      _______ _   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.

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ABCMR Record of Proceedings (cont)                                         AR20150004070



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