IN THE CASE OF:  	  

		BOARD DATE:  4 June 2015	  

		DOCKET NUMBER:  AR20150004852 


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 an upgrade of his discharge under other than honorable conditions (UOTHC) to honorable.

2.  The applicant states:

* his discharge should be upgraded to honorable due to suffering from undiagnosed post-traumatic stress disorder (PTSD) at the time
* he served in combat in the Republic of Vietnam in 1970 and 1971
* at the time of his discharge in 1983, there were no programs supporting Soldiers with PTSD or family problems
* his 7-year old son repeatedly ran away from home in 1982, hitchhiking from New Jersey in an attempt to reunite with him at Fort Jackson, SC, while he was separated from his wife
* his chain of command was aware of his situation yet did not offer him any assistance or show any concern for his plight
* at the time of his discharge he was not the Soldier he once was due to his circumstances and the PTSD, which caused him to make several mistakes
* the Department of Veterans Affairs (VA) initially diagnosed him with PTSD in 2010 but his PTSD symptoms have increased with age, thus the VA increased his service-connected rating for PTSD from 10 to 50 percent
* his situation would have been handled differently had his PTSD been diagnosed at the time and had there been programs in place to deal with the type of family situation he was involved in and he would have received an honorable discharge

3.  The applicant provides a VA Rating Decision, dated 3 November 2014.

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 26 January 1970.  He completed training and was awarded military occupational specialty 17K (Ground Surveillance Radar Operator).

3.  He served in the Republic of Vietnam from 10 June 1970 through 1 May 1971.  On 21 February 1973, he was honorably released from active duty due to expiration of term of service and transferred to the U.S. Army Reserve.  He was credited with 3 years and 6 days of active service.

4.  On 12 May 1977, he again enlisted in the Regular Army after a break in service.

5.  On 8 April 1982, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from on or about 31 March 1982 to 2 April 1982.

6.  Headquarters, 4th Combat Support Training Brigade, Special Court-Martial Order Number 3, dated 8 March 1983, shows he pled guilty and was found guilty of being AWOL from on or about 29 December 1982 through on or about 17 January 1983.  He was sentenced to forfeiture of pay and reduction in rank/grade from staff sergeant/E-6 to sergeant/E-5.

7.  Charges were preferred against him on 16 June 1983 for being AWOL from his unit at Fort Jackson, SC, from on or about 6 April 1983 through 16 June 1983, when he surrendered to military authorities at Fort Bragg, NC.

8.  On 22 June 1983, he voluntarily requested 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 Personnel), chapter 10 (Discharge in Lieu of Trial by Court-Martial).  He consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge UOTHC, and the procedures and rights available to him.  He acknowledged that he was guilty of the charges against him.  He did not submit statements in his own behalf but was interviewed by the Commander, Headquarters and Headquarters Company, U.S. Army Personnel Control Facility, XVIII Airborne Corps and Fort Bragg, NC, wherein he stated his AWOL was due to marital problems and his home situation with which he was unable to cope, thus he left his unit in hopes of finding resolution.

9.  On 19 October 1983, the separation authority approved his request for discharge and directed his reduction to private/E-1 and the issuance of a discharge UOTHC.

10.  On 31 October 1983, he was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) for this period shows he completed 6 years, 2 months, and 21 days of creditable active military service with 92 days of lost time due to being AWOL.  His DD Form 214 also shows he was awarded or authorized the:

* Army Service Ribbon
* Army Good Conduct Medal
* Overseas Service Ribbon
* Meritorious Service Medal
* National Defense Service Medal
* Vietnam Service Medal
* Army Commendation Medal with 1st Oak Leaf Cluster
* Republic of Vietnam Campaign Medal with Device (1960)
* Republic of Vietnam Gallantry Cross with Palm Unit Citation
* Driver and Mechanic Badge
* Expert Marksmanship Qualification Badge with Rifle Bar (M-16)
* Expert Marksmanship Qualification Badge with Grenade Bar
* Expert Marksmanship Qualification Badge with Pistol Bar (.38 Caliber)
* Expert Marksmanship Qualification Badge with Pistol Bar (.45 Caliber)

11.  He petitioned the Army Discharge Review Board for an upgrade of his discharge and the board denied his request on 6 February 1997, determining that he had been properly and equitably discharged.

12.  The applicant provided a VA Rating Decision, dated 3 November 2014, in which their prior decision to grant a service-connected rating for PTSD of 10 percent was increased to 50 percent effective 29 March 2014.  The 3 November 2014 VA Rating Decision also increased the applicant's prior rating of 10 percent for radiculopathy (radiating pain) of the right lower extremity and 10 percent for radiculopathy of the left lower extremity to 20 percent for each ailment.  The prior VA Rating Decision in which PTSD was initially rated as 
10-percent disabling as well as the original PTSD diagnosis is not available for review.  The applicant's VA Rating Decision from 18 November 1994 granted service connection of 10 percent for a lower back condition.

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

	a.  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.

	b.  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.

	c.  Chapter 10 provides that a member who is charged with an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge UOTHC is normally issued to an individual who is discharged for the good of the service.

14.  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.

15.  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.

16.  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.

17.  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 the applicants' service.

18.  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?

19.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's discharge proceedings for the good of the service in lieu of trial by court martial under the provisions of Army Regulation 635-200, chapter 10, 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, namely 92 days of AWOL and his overall record of military service.  A discharge UOTHC was normally considered appropriate when a member was separated under the provisions of chapter 10.

2.  At the time of his 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.  The evidence of record shows the applicant was diagnosed with PTSD by the VA.  Although his complete service medical records and VA diagnosis of PTSD are not available for review, he was nonetheless diagnosed by professionals at the VA with PTSD subsequent to experiencing a traumatic event and granted a service-connected disability rating of 50 percent for PTSD by that agency.

5.  It is reasonable to conclude the applicant's PTSD existed at the time of his discharge and was a causative factor in the misconduct that led to his discharge on 31 October 1983.  During his 9 years of service, he served a combat tour in the Republic of Vietnam, attained the rank of staff sergeant, and was awarded the Meritorious Service Medal, among other decorations, all of which are significant indicators of the caliber of his service prior to experiencing family difficulties and the onset of PTSD.  After carefully weighing the facts against the severity of the applicant's misconduct, there is sufficient mitigating evidence to warrant upgrading the character of his service to general under honorable conditions and reinstating his rank to sergeant/E-5 effective 8 March 1983.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ____X___ GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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 amending his DD Form 214 for the period ending 31 October 1983 to show the character of his service as general under honorable conditions and to show his ranks as sergeant/E-5 with an effective date of 8 March 1983.

2.  The Board further determined 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 correction of his DD Form 214 for the period ending 31 October 1983 to show his character of service as honorable.



      _______ _  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)                                         AR20150004852



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ABCMR Record of Proceedings (cont)                                         AR20150004852



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