IN THE CASE OF:  	  

		BOARD DATE:  28 May 2015	  

		DOCKET NUMBER:  AR20150004098 


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 reconsideration of his previous request that his undesirable discharge be upgraded to a general, under honorable conditions discharge or a medical discharge.

2.  The applicant states:

   a.  He is a combat veteran from the Vietnam era.  The Army showed indifference to his medical needs and discharged him without regard to his undiagnosed post-traumatic stress disorder (PTSD).  He is now providing new evidence that was not previously considered.
   
   b.  The first year after he left the Army, it was hard to adjust to being out of the military.  Mostly from PTSD, his first wife could not adapt to his condition and his marriage only lasted about 1 year.  Then he met his second wife, a fabulous woman who helped him through many bad years after Vietnam.  They have been married over 40 years, raised three sons, and have nine grandchildren.  They have been in the same house and have attended the same church for 35 years.
   
   c.  He enrolled in college a few times but had to drop out to take care of his youngest son who had open-heart surgery and needed someone to look after him.  His employment consisted of working for the State of California doing automobile and house painting.  He owned his own business painting houses, cars, boats, and motorcycles.  After his son got better from his surgery, he helped another son start his automobile racing shop.  Now that he and his wife are retired, they volunteer at the Forgotten Warrior Organization and are committed to helping other veterans and their families. 

3.  The applicant provides a statement of support.

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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20040008266, on 12 May 2005.

2.  As new evidence, the applicant provides a statement of support, dated 25 February 2015, wherein Mr. WW, Chief Executive Officer, Forgotten Warrior, stated the applicant had been volunteering at the Forgotten Warrior for over a year and had been an asset to the organization.  He came to support the organization in the hope that they could help him get his undesirable discharge upgraded to a general or honorable discharge.  After reviewing his records, they believed the Army showed deliberate indifference to his medical needs and discharged him without regard to his medical condition being PTSD.  When his family conditions added to his PTSD, he just wanted to get home.  He should have been given medical care in the Department of Veterans Affairs (VA) mental health program as they were quite aware he had PTSD.  He had been in their PTSD training program for the past year and was doing quite well.

3.  With his previous request, the applicant submitted a letter from a Licensed Clinical Social Worker, dated 3 March 2003, wherein she stated [at that time] the applicant was being treated for PTSD and major depression.  He had been seen on an out-patient and in-patient basis for the previous 2 years.

4.  The applicant enlisted in the Regular Army on 20 March 1969 and he held military occupational specialty 93J (Air Traffic Controller Radar Specialist).  He was promoted to the rank/grade of private first class (PFC)/E-3 on 25 September 1969.  On 16 December 1969, he was assigned to the 363rd Aviation Detachment, Vietnam.  On 7 May 1970, he was assigned to the 125th Aviation Company, Vietnam.

5.  On 27 May 1970, based on a Red Cross message, he was granted 30 days emergency leave to his parents address in Sacramento, CA.  It is unclear if his emergency leave was extended and/or if he was temporarily attached to a stateside unit; however, he failed to return to his unit in Vietnam and on 8 August 1970 he was reported as absent without leave (AWOL) from his assigned unit and on 8 October 1970 he was dropped from the rolls (DFR) as a deserter.
6.  On 8 November 1970, he was returned to military control and assigned to the Special Processing Detachment, Fort Ord, CA.

7.  On 9 December 1970, he was convicted by a summary court-martial of being AWOL from 8 October to 8 November 1970.

8.  On 5 January 1971, he was reported as AWOL from his assigned unit and on 3 February 1971, he was DFR as a deserter.

9.  On 9 July 1971, he was returned to military control and assigned to the U.S. Army Personnel Control Facility, Fort Lewis, WA.

10.  On 14 July 1971, court-martial charges were preferred against him for being AWOL from 5 January to 9 July 1971.

11.  On 19 July 1971, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  On 19 July 1971, he requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  In his request, he acknowledged that he had not been subjected to coercion with respect to his request for a discharge and had been advised of the implications that were attached to it.

12.  He further acknowledged that he understood if his request was accepted, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He understood that as a result of such a discharge, he might be ineligible for many or all Amy benefits, many or all benefits administered by the VA, and that he might be deprived of his rights and benefits as a veteran under both State and Federal laws.  He also understood that he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.

13.  With his request for a discharge, he submitted a statement in his own behalf wherein he stated while serving in Vietnam he did all kinds of drugs.  When he went home on emergency leave he found that both his mother and wife had nervous breakdowns and he was under a lot of mental pressure dealing with the situation.  He went AWOL after failing to get a compassionate reassignment.  To relieve the psychological pressure of dealing with his problems he was having with his wife, he needed to be discharged so that they could get their lives back together.

14.  His immediate and senior commanders subsequently recommended approval of the applicant's request for a discharge with the issuance of an Undesirable Discharge Certificate.

15.  His record contains a:

	a.  Standard Form 88 (Report of Medical History), dated 27 July 1971, wherein it shows the applicant indicated his health was generally good.  The examining physician annotated the form that the applicant had tinnitus and partial deafness in his right ear, had frequent colds and a cough, he smoked cigarette and used all kinds of drugs, and had low back strain.

	b.  Standard Form 89 (Report of Medical Examination), dated 27 July 1971, wherein it shows the examining physician found the applicant was qualified for separation, he had no disqualifying mental/physical diseases or conditions, and his PULHES was "1-1-1-2-1-1."

16.  On 28 July 1971, the separation authority approved his request for a discharge in lieu of trial by court-martial and directed the issuance of an Undesirable Discharge Certificate.  On 29 July 1971, he was discharged accordingly in the rank/grade of private (PVT)/E-1.

17.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial (separation program number (SPN) 246), with an under other than honorable conditions (UOTHC) characterization of service.  He completed 1 year and 7 months of net active service and had 280 days (9 months and 10 days) of lost time due to being AWOL from 6 August to 8 November 1970 and from 5 January to 8 July 1971.

18.  There is no evidence in his record, and he did not provide any evidence, that shows while serving on active duty that he was ever treated for, or diagnosed with, PTSD or any mental/medical condition/disorder that permanently prevented him from performing his assigned duties, was found to be unfitting, or required referral to a medical evaluation board (MEB).  There is no evidence that shows while serving on active duty that he ever received a permanent profile of "3" that would require referral to an MEB.

19.  On 16 November 1977 and 9 March 1983, the Army Discharge Review Board denied his request for an upgrade of his discharge and determined he was both equitably and properly discharged.  On 31 May 1989, the ABCMR denied his request for an upgrade of his discharge.

20.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed 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 at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

21.  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.

22.  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.

23.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It states MEBs are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualification for retention based on the criteria in Army Regulation
40-501 (Standards of Medical Fitness), chapter 3.

24.  Army Regulation 635-40 further states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature/degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before that service member can be medically separated or retired.

25.  The Army physical profile serial system is based primarily upon the function of body systems and their relation to military duties.  The functions of the various organs, systems, and integral parts of the body are considered.  An individual having a numeric designation of "1" under all factors is considered to possess a high level of medical fitness.  A physical profile designator of "2" under any or all factors indicates an individual possesses some medical condition or physical defect that may require some activity limitations.  A profile containing one or more numerical designations of "3" signifies the individual has one or more medical condition that may require significant limitations.  A permanent profile of "3" would require referral to an MEB.

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 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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's discharge proceedings, for misconduct, 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 shows that he was subjected to the ordeals of war while serving in the Vietnam.  Of particular note is at the time he requested a discharge, he stated he began to use drugs while in Vietnam.  His record is void of any previous misconduct and shows he went AWOL after he completed emergency leave and failed to return to his unit in Vietnam.

5.  Subsequent to these experiences, medical evidence shows he was diagnosed with PTSD by a competent mental health professional that was a result of his experience serving in combat in Vietnam.  Therefore, it is reasonable to believe the applicant's PTSD condition existed at the time of discharge.  However, his record does not show and he has not provided any evidence that shows he was ever diagnosed with any mental/medical condition while serving on active duty that would have required him to be processed through medical channels.

6.  It is concluded that the 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.

BOARD VOTE:

____X___  ____X___  ____X___ GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by re-issuing the applicant's DD Form 214 for the period ending 29 July 1971 to show the characterization of service as "General, Under Honorable Conditions" and his rank/grade as PFC/E-3 with an effective date of 25 September 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.


ABCMR Record of Proceedings (cont)                                         AR20150004098





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ABCMR Record of Proceedings (cont)                                         AR20150004098



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