AR20150009759

IN THE CASE OF:

BOARD DATE: 5 May 2016

DOCKET NUMBER: AR20150009759

BOARD VOTE:

_________ _______ ________ GRANT FULL RELIEF

________ ________ ________ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

____x___ ____x___ ____x ___ DENY APPLICATION

2Enclosures
1. Board Determination/Recommendation
2. Evidence and Consideration

IN THE CASE OF:

BOARD DATE: 5 May 2016

DOCKET NUMBER: AR20150009759

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

_____________x____________
CHAIRPERSON

I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

IN THE CASE OF:

BOARD DATE: 5 May 2016

DOCKET NUMBER: AR20150009759

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 under other than honorable conditions (UOTHC) characterization of service for the period ending
2 April 1971.

2. The applicant states:

a. He believes his records to be in error or unjust because he was under
mental stress from combat duties and physical wounds he received during his service in Vietnam.

b. He was immature at the time and made many mistakes.

3. The applicant provides a:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* reference letters

CONSIDERATION OF EVIDENCE:

1. Title10, U.S.Code, section1552(b), provides that applications for correction of military records must be filed within 3years 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. On 7 November 1968, the applicant enlisted in the Regular Army.

3. His DA Form 20 (Enlisted Qualification Record), item 31 (Foreign Service) shows served in Vietnam from 19 September 1969 to 9 August 1970, for a period of 10 months and 21 days.

4. Special Court-Martial (SPCM) Order Number 58, Headquarters, U.S. Army Aviation School (AVNS) Regiment, Fort Rucker, AL, dated 30 April 1969, shows the applicant was convicted at a SPCM of being absent without leave (AWOL) from 19 February 1969 to 10 April 1969.

5. General Orders Number 3781, Headquarters, 4th Infantry Division, dated
7 July 1970, shows the applicant was awarded the Purple Heart (PH) for a wound he received by hostile force.

6. The applicant received the following nonjudicial punishments (NJPs) on:

* 23 October 1970, for being derelict in the performance of his duties and for breaking restriction
* 3 February 1971 for AWOL from 19 January 1971 to 2 February 1971

7. On 24 February 1971, the applicants commanding officer (CO) issued a bar to reenlistment to the applicant due to his habitual misconduct. The CO stated, I have counseled this individual on numerous occasions and have advised him of the adverse consequences that might ensue from this or similar actions. This has been to an availas all rehabilitation action has failed.

8. On 2 March 1971, the applicant was pending a court-martial for being AWOL from 16 February 1971 to 18 February 1971, failure to go to his appointed place of duty, and for breaking arrest.

9. On 4 March 1971, the applicant received a psychiatric evaluation at the Mental Hygiene Consultation Service, Fort Jackson, SC. The psychiatrist gave the applicant a diagnosis of passive-aggressive disorder, chronic, severe, manifested by multiple AWOLs and dereliction of duty, poor impulse control, poor insight and judgment, and found He is psychiatrically cleared for any administrative or judicial action deemed appropriate by command. [Line of Duty: Existed Prior To Service].

10. The complete facts and circumstances of his discharge processing are not available for review. However, his record contains a DD Form 214 that shows he was discharged on 2 April 1971 under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 10, for the good of the service and received a UOTHC discharge. He completed 2 years, 1 month, and 15 days of net active duty service in the rank/grade of private/E-1.

11. His available military records are void of any evidence indicating he was diagnosed with any behavioral health conditions while he was serving on active duty.

12. The applicant submitted letters of reference on his behalf.

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

REFERENCES:

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

a. Chapter 10 provides that a member who has committed 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 at any time after the charges have been preferred. A discharge UOTHC is normally considered appropriate.

b. Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldiers service has generally met standards of acceptable conduct and duty performance.

c. 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.

2. 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.”

3. 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.

4. 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.

5. As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis and treatment of PTSD the Department of Defense (DoD) acknowledges that some Soldiers who were administratively discharged UOTHC may have had an undiagnosed condition of PTSD at the time of their discharge. It is also acknowledged that in some cases this undiagnosed condition of PTSD may have been a mitigating factor in the Soldier’s misconduct which served as a catalyst for their discharge. Research has also shown that misconduct stemming from PTSD is typically based upon a spur of the moment decision resulting from temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues for an extended period of time.

6. In view of the foregoing, on 3September 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.

7. 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,

8. Although the DoD acknowledges that some Soldiers who were administratively discharged UOTHC may have had an undiagnosed condition of PTSD at the time of their discharge, it is presumed that they were properly discharged based upon the evidence that was available at the time. Conditions documented in the record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which PTSD or PTSD-related conditions may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the UOTHC characterization of service. Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of UOTHC. Potentially mitigating evidence of the existence of undiagnosed combat-related PTSD or PTSD-related conditions as a causative factor in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct.

DISCUSSION:

1. The complete facts and circumstances surrounding the applicants discharge are not available for review; however his records show he was charged with an offense for which he could have been tried by court-martial and punished with a punitive discharge under the Uniform Code of Military Justice (UCMJ).

2. To be discharged under the provisions of Army Regulation 635-200, chapter 10, the applicant would have voluntarily requested discharge in lieu of trial by court-martial. In doing so, he would have waived his opportunity to appear before a court-martial.

3. Even though applicants records do not contain his discharge packet, it is presumed that his discharge process was accomplished in accordance with applicable regulations. It is also presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.

4. Although the applicant states he was wounded in action, received a PH, and had mental health stressors while in Vietnam that contributed to his misconduct, there is no evidence in his medical records and he has not provided any documentation to support his claim.

5. His discharge appears appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings AR20150000953

Enclosure 1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) AR20150006999

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20150009759

7

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2