AR20150010024

BOARD DATE: 15 November 2016

DOCKET NUMBER: AR20150010024

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

BOARD DATE: 15 November 2016

DOCKET NUMBER: AR20150010024

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.

BOARD DATE: 15 November 2016

DOCKET NUMBER: AR20150010024

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 and a personal appearance hearing.

2. The applicant states he was found not guilty of all charges during an “Article15” hearing. He was given the option of returning to his unit or discharge. He chose the discharge under the condition that it would be changed to honorable after 6 months. He never followed up because he assumed the discharge would be automatically upgraded. He is in need of healthcare because he suffers from disabilities and ailments related to his service in Vietnam. He never asked the Department of Veterans Affairs (VA) for any assistance until his disabilities reached a point where he could no longer afford medical treatment or his medications.

3. The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* DA Form 20 (Enlisted Qualification Record)
* enlistment and separation physicals
* multiple DA Forms 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ))
* immunization record
* dental record
* post-service civilian medical records
* multiple VA progress notes

COUNSEL’S REQUEST, STATEMENT, AND EVIDENCE:

1. Counsel requests:

* an upgrade of the applicant’s discharge under other than honorable conditions
* a determination of whether his mental and physical conditions warranted disability processing at the time of discharge
* a determination of whether his discharge was improper in that his rights were denied during separation processing
* a personal hearing

2. Counsel states:

a. The applicant served in the Army during the Vietnam War. He was discharged on 28 July 1971 by the authority of chapter 10, Army Regulation (AR) 635-200 (Personnel Separations Enlisted Personnel), with a character of service shown as under other than honorable conditions. He requests the Board review the applicants service records, VA records from the Lebanon Medical Center and York County Outpatient Clinic in Pennsylvania plus the Baltimore and Fort Howard VA medical facilities in Maryland, and the documentation submitted by counsel and review the case file as if it were their paperwork that they submitted and give his case a fair review. The applicant suffers from mental and physical problems from his military service and wants compensation so he can support his family. The VA denied his 2014 disability claim because his character of service is under other than honorable conditions.

b. Chapter 10 of AR 635-200 cites in paragraph 10-1a, “A Soldier…may submit a request for discharge in lieu of trial by court-martial.” In his sworn statement, he denies submitting a request in lieu of trial and states he was found not guilty of all charges during his court-martial in 1971. Paragraph 10-9 states, “the request for discharge in lieu of trial by court-martial will be filed in the [military personnel records jacket (MPRJ)]” yet this request is not part of his military records and he denies seeing anything like the figure in paragraph10-1 in AR635-200.

c. He contends that the applicant suffers from post-traumatic stress disorder (PTSD)/mild traumatic brain injury (mTBI) and he submits a Primary Case PTSD screening, PTSD Checklist Military Version, TBI Screening, and PTSD Checklist (PCL-5) for Diagnostic and Statistical Manual of Mental Disorders (DSM-5) with The Life Events Checklist (LEC-5) and Criterion A providing evidence that he should have received a mental health evaluation prior to his discharge from the Army. He met with a psychologist at the Baltimore VA Medical Center in July 2014.

d. The applicant should have been formally counseled concerning the consequences of receiving a discharge under other than honorable conditions. The applicant provides evidence in his sworn statement that his attorney told him his undesirable discharge would automatically be upgraded to honorable after 6months.

3. Counsel provides a statement of facts:

a. The applicant served on active duty with the Army from 15 August 1969 to 28 July 1971 with service in Vietnam from 10 November 1970 to 24 July1971 according to his DD Form 214 and DA Form 20. He was discharged on 28July1971 at Fort Lewis, WA, in accordance with chapter 10, AR 635-200 with a character of service of under other than honorable conditions. His service medical records show possible cracked bones of the lower right leg on 1February 1971. Someone handwrote “Chap 10” (the zero is deformed showing some question in the writer’s thoughts) in block 77 on one of the two copies of his 13July 1971 Report of Medical Examination.

b. After Basic Combat Training at Fort Bragg, NC, the applicant attended military occupational specialty (MOS) 36K (Field Wireman) Advanced Individual Training at Fort Jackson, SC, from 19October to 17December 1969. He was promoted to E-2 on 15 December 1969 as shown on his DA Form 20. He states in his sworn statement that his rigorous field wireman training negatively affected his knees and back. He was assigned to Germany and since his unit had no need for a Field Wireman, he volunteered to work in the motor pool as a 63B (Light Wheeled Vehicle Mechanic). He was promoted to E-3 and then to E-4 on 22 June 1970 and was awarded MOS 63B when he was promoted to E-4 according to his DA Form 20. He received orders to go to Vietnam and returned home on leave prior to his deployment.

c. According to the applicant,s sworn statement and DA Form 2627-1, he did not return to his debarkation point of Fort Lewis as scheduled because he thought he might never return from Vietnam. He arrived in Vietnam on 10November 1970 and went on combat patrols, performed guard duty at a quarry guarding drill vehicles, and he performed vehicle escort duty. After returning from one of his escort duty missions, he was scared for his life when he was taken into custody and accused of “wiring frag” a captain’s bunk. He was imprisoned at Long Binh stockade and his mental problems stem from his job in prison as an orderly. The applicant saw three or four people hang themselves and held them up until the guards arrived to take them down. He couldn’t take it anymore and asked to be removed from orderly duties.

d. The applicant was taken to his unit multiple times during the proceedings from the jail. He asserts he was not found guilty during his court-martial. The judge asked him if he wanted to go back to his unit or be discharged and he told the judge that he just wanted to go home after the way he was treated, the way he was scared when taken into custody, and then the difficult experiences he endured in prison. The applicant asserts his attorney told him his undesirable discharge would automatically change to an honorable discharge after 6 months. He trusted this would occur. He also states he never submitted a written request to be discharged and had no familiarity with the sample discharge in lieu of trial by court-martial memorandum shown in AR 635-200.

e. In the applicant,s statement, he discusses how he was sent out of Vietnam in civilian clothes that didn’t fit and was never counseled about his type of discharge. The myths about a less-than-honorable discharge automatically getting upgraded 6 months after discharge were so prevalent that using the reasonable person standard it is reasonable to believe Vietnam era veterans were told that this would occur. This myth is so prevalent that the facts on the Boards for Correction of Military Records (ABCMR) and Discharge Review Boards website addresses this issue as well as chapter 17 of AR 635-200. A civilian attorney wrote an article titled, “Basics of Discharge Upgrading,” wherein he states, “this myth has been around since World War II and is still being perpetuated by people marginally involved in the discharge process.” The author goes on to state:

Typically, a vet will explain that: “they told me so long as I kept my nose clean the discharge would go to Honorable in six months” and after nearly thirty years of doing this workthe “six month myth” is grounded partly in the fact that military regulations used to require that administrative records not be forwarded to the Records Center in St. Louis until six months after separation.

It is thus reasonable to conclude that from the applicant’s sworn statement, he was told that his discharge would be automatically upgraded is true and a fact.

f. The Army and Department of Defense (DOD) policy continues to evolve concerning PTSD and mTBI. Office of the Surgeon General and Medical Command (OTSG/MEDCOM) Policy Memorandum Number 08-018, dated 19May 2008, concerning screening for PTSD and mTBI prior during administrative separations is one example of evolving policy concerning procedures to screen Soldiers prior to administrative separations. OTSG/MEDCOM Policy Memorandum 12-035 is a more recent example. The applicant did not receive a mental health evaluation prior to his discharge and this negatively affected his ability to receive the disability compensation he deserves and requests.

g. The book entitled Long Binh Jail: An Oral History of Vietnam’s Notorious U.S. Military Prison written by Colonel (Retired) Cecil B. Currey, who served as a Chaplain in the Army Reserve, gives the best available insight into the experience of working at and being incarcerated in the jail. Page X and XV in the Preface of Curry,s book discusses how “many former inmates…suffer from PTSD” and “decades later many [former Soldiers] are still touched by PTSD, caused by the sights and sounds they endured all those years ago.” People working at the jail became a product of their environment and became combative and defensive. Page 163 documents Chaplain Assistant Specialist Fourth Class De– He–‘s story of one prisoner who committed suicide in 1971. Counsel states the applicant had this same experience three or four times while at the jail and those events adversely affected him.

h. The applicant’s wife describes his depression, his verbal and physical fights with people, and one flashback occurrence in her letter to the Board. On the bottom of page 54 and the top of page 55 in Currys book he gives percentages of punishments and courts-martials. He states, “One of every seven black soldiers in 1971 received less-than-honorable discharges. Whites received one out of fourteen” and further “clearly, something was wrong with the system.” Page 87 discusses a scenario from a Soldier who has many similarities to what the applicant describes surrounding his experiences and his longing to go home.

i. In 2014, the applicant went to the VA to get help paying for medications because he couldn’t afford them. He had evaluation appointments in Pennsylvania and Maryland. He also met with a Veteran’s Service Officer in York, PA. She helped him file a VA disability compensation claim. When his claim was denied in 2015, she helped him file the minimum amount of paperwork to open an ABCMR application. This paperwork is of particular interest to this case as the applicant was seen by a psychologist at the Baltimore VA Medical facility in July 2014.

j. In summary, the applicant’s discharge is inequitable. He did not request a discharge in lieu of a trial by court-martial. His discharge should be upgraded to honorable in accordance with paragraphs 3-9 and 5-3 of AR 635-200. He suffers from PTSD/mTBI.

(1) The preponderance of the evidence shows that the applicant did not request a discharge under the provisions of chapter 10, AR 635-200. He also did not receive a mental health evaluation prior to discharge as required by paragraphs 1-14 and 10-9, AR 635-200. Evidence submitted with his application as well as the 2014 report from the VA psychologist showing he suffers from mental health conditions related to his service in Vietnam warrants review.

(2) The preponderance of the evidence shows the rights available to the applicant were denied during discharge proceedings. He did not receive a mental health status evaluation and his mental and physical conditions warranted disability proceedings prior to his discharge. He did not request discharge in lieu of trial by court-martial yet the authority used to discharge him was chapter 10, AR635-200. He was not formally counseled concerning the consequences of receiving a discharge under other than honorable conditions.

(3) In conclusion, the Board should favorably upgrade the applicants character of service to honorable. The Board should decide that he suffers from PTSD/mTBI and physical disabilities attributable to his military service and award retroactive VA disability compensation to his time of discharge or at a minimum to the time his VA Claim was submitted in 2014.

3. Counsel does not provide additional evidence.

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 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 for a 3-year term on 15 August 1969. He held MOS 36K (Wireman) and/or 63B (Wheel Vehicle Mechanic). He served in Germany from 28 January to 4August 1970.
3. He departed Germany enroute to Vietnam via the Overseas Replacement Station at Fort Lewis, WA.

4. On 3 November 1970, at Fort Lewis, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for being absent without leave (AWOL) from 18 October to 2 November 1970.

5. He served in Vietnam from on or about 10 November 1970 to on or about 21July 1971. He was assigned to the 102nd Engineer Company (Construction Support).

6. On 26 January 1971, he accepted NJP under the provisions of Article 15 of the UCMJ for absenting himself from his appointed place of duty in Vietnam.

7. The complete facts and circumstances surrounding the applicant’s discharge are not available for review. However, his records contain several documents explaining the circumstances of his discharge:

a. DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 23 March 1971, shows he was pending court-martial for violating Articles129 and 134 of the UCMJ by communicating a threat and attempted murder. He was confined at the Long Binh Stockade awaiting trial.

b. An endorsement (4th) from a brigadier general of the U.S. Army Engineer Command, Vietnam, to the Commander, 35th Engineer Group, indicates a request for discharge for the good of the service was submitted by the applicant on 27 June 1971.

(1) the request for discharge for the good of the service under the provisions of chapter 10 of AR 635-200 was approved,

(2) he was to be reduced to the lowest enlisted grade and discharged for the good of the service,

(3) he was to be furnished an Undesirable Discharge Certificate, and

(4) a copy of the correspondence and enclosures were to be filed in the Soldiers MPRJ.

c. An endorsement (5th) from the Adjutant, 35th Engineer Group, to the Commander, 815th Engineer Battalion, forwarded the 4th Endorsement for compliance.
d. Special Orders Number 209, issued by Headquarters, U.S. Army Personnel Center, Fort Lewis, WA, on 28 July 1971, ordered the applicant’s discharge effective 28 July 1971, with an under other than honorable conditions characterization of service.

e. A letter issued by Headquarters, U.S. Army Training Center, Fort Lewis, WA, on 28 July 1971, ordered the applicant’s expulsion from the U.S. Military Reservation.

f. A DD Form 214 shows the applicant was discharged in the rank/grade of private/E-1 on 28 July 1971 in accordance with chapter 10 of AR 635-200, in lieu of trial by court-martial. He was issued an under other than honorable conditions characterization of service, furnished an Undesirable Discharge Certificate, and assigned Separation Program Number 246 (in lieu of trial by court-martial). He completed 1year, 11months, and 14days of active service. He served in Vietnam from 10 November 1970 to 27 July 1971.

8. There is no indication he petitioned the Army Discharge Review Board for review of his discharge processing within that board’s 15-year statute of limitations.

9. The Board forwarded the applicant’s records together with counsel’s arguments and supporting documents to the Army Review Boards Agency senior medical advisor for review of his physical disabilities. The medical advisor rendered an advisory opinion on 26 September 2016. He stated his review was to determine if the alleged medical conditions warranted separation through medical channels or if medical conditions were not considered during medical separation processing.

a. The applicant’s DD Form 214 indicated a discharge under other than honorable conditions under the provisions of chapter 10, AR 235-200, with no lost time. He served in Vietnam from 10 November 1970 to 27 July 1971. He is petitioning for a medical discharge and a change of character of service from under other than honorable conditions. The applicant provided copies of civilian medical records from 2002 through 2014, multiple letters of support dated 2015/2016/undated, and copies of VA medical records.

b. The medical records provided were reviewed including:

(1) Report of Medical History (Standard Form 89), dated 29 July 1969, with burn left leg and right thigh at age 3 with release of adhesions at age 7. Low back strain. Trouble in school studies could not concentrate.
(2) Report of Medical Examination (Standard Form 88), dated 29 July 1969, with clinical evaluation noting tattoo right arm, burn (water) scars on left leg and left side of back, burn scar left thigh and calf, burn scar right thigh, and vision defect. Qualified for service with PULHES of “1-1-1-1-1-2-1” and a physical category code “B.”

(3) NJP for AWOL from 18 October 1970 through 2 November 1970 with reduction in rank from E-4 to E-1 and forfeiture of $50 per month for 2 months effective 2November 1970.

(4) NJP, dated 26 Jan 1971, for AWOL 26 Jan 1971 for failure to be at his place of duty.

(5) DA Form 268, dated 23March 1971, with Section II Interim Report, Synopsis of Available Information: Enlisted Member (EM) is pending court-martial action for violating Article 129 and 134, communicating a threat and attempted murder. EM sent to Long Binh Stockade awaiting trial.

(6) Discharge for the Good of the Service, dated 27 Jun 71, under Chapter 10, AR 635-200 approved. “SP4 [Applicant] will be reduced to the lowest enlisted grade. He will be discharged for the Good of the Service under the provisions of Chapter 10, AR 635-200 and furnished an Undesirable Discharge Certificate.”

(7) Report of Medical History, dated 13 July 1971, with history “Yes” for venereal disease and past history “Yes” for burn (water) both legs, back and surgery to release contractures of burn scar left knee.

(8) Report of Medical Examination, dated 13 July 1971, with unremarkable clinical evaluation (burn scars left back, both legs; no significant or interval history); qualified for separation under the provisions of AR 635-200, chapter 10 with PULHES of “1-1-1-1-1-1” and a physical category “A.”

(9) Installation Clearance Record (DA Form 137), dated 23 July 1971, Authority for Departure: Under Chapter 10. Applicant cleared all stations, including item 16 medical treatment facility. Remarks: Conduct Unsatisfactory; Efficiency Fair.

(10) Expulsion from United States Military Reservation, dated 28 July 1971.

(11) Limited review of VA records through the Joint Legacy Viewer with problem listed diagnoses related to the applicant’s claim.

c. The applicant met medical retention standards in accordance with chapter3, AR 40-501 ((Standard of Medical Fitness), and following the provisions set forth in AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), that were applicable to the applicant’s era of service. The applicant’s medical conditions were duly considered during medical separation processing. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character or reason for the discharge in this case.

d. As a side note, the applicant’s DD Form 214 does not note time lost clearly documented as follows: DA 2627-1, dated 2 November 1970, for AWOL from 18October 1970 through 2November 1970.

11. The applicant was provided with a copy of the medical advisory opinion but he did not respond.

12. The Board also forwarded the applicant’s records together with counsel’s arguments and supporting documents to the Army Review Boards Agency clinical psychiatrist for review of his behavioral health conditions. The clinical psychiatrist rendered an advisory opinion on 26 October 2016.

a. The applicant is applying to the ABCMR for an upgrade of his discharge contending that he developed PTSD from his experiences in Vietnam and his PTSD health condition was responsible for the misconduct leading to his discharge.

b. The following documentation was reviewed: the applicants application, the applicant,s personal statement, PTSD screening checklists filled out by the applicant, civilian healthcare documentation, VA medical documentation and the applicants MPRJ.

c. The applicant contends he developed PTSD while in Vietnam. He reports he was charged with communicating a threat and attempted murder (applicant was accused of wiring live explosives to a superior officers bunk) and was placed in the stockade (Long Binh jail) while awaiting court martial. He reports he was allowed to work as an orderly in the stockade. On several occasions, he reports he would find other inmates attempting to hang themselves. He was told to hold these inmates up (so they would not choke) until help arrived. The applicant reports that he was found not guilty of all charges in a court martial. When the judge asked him if he wanted to be discharged or returned to his unit, he chose the option of being discharged. The applicant states he was told his undesirable discharge would automatically convert to an honorable discharge after 6 months. He identifies the holding up of hanging inmates as the cause of his PTSD.

d. There is no documentation of PTSD or other behavioral health symptoms or diagnosis in the applicants military records. On a Report of Medical of History, dated 13 July 1971, the applicant denied trouble sleeping, frequent or terrifying nightmares, depression or excessive worry, loss of memory or amnesia or nervous trouble of any sort. There is no indication the applicant failed to meet medical retention standards in accordance with chapter 3, AR 40-501 and following the provisions set forth in AR 635-40 that were applicable during the applicants era of service.

e. On 17 April 2014, the applicant underwent a Mental Health Psychosocial Assessment at the VA. He was assessed for possible trauma symptoms. He endorsed some avoidance behaviors and occasional nightmares. He denied having any history of suicidal or homicidal ideation. He denied any past history of psychiatric inpatient hospitalization. His screening test for PTSD (PTSD 4 Q), administered by the examining psychologist was negative for PTSD (applicant scored 2/4). (This is in contrast to the self-administered screening checklists for PTSD submitted by the applicant in his ABCMR application which were positive for PTSD.) The applicant was not diagnosed with PTSD.

f. A VA Mental Health note dated 16 July 2014 indicates the applicant was diagnosed with major depressive disorder. It was noted he had a “history of PTSD.”

g. In summary, the applicant contends that he developed PTSD as a result of his experiences in the Long Binh jail. His report of his experiences in Long Binh jail, while compelling, cannot be substantiated. There is no indication in his military records of any PTSD symptoms. In a Report of Medical History filled out by the applicant as part of his separation processing, he indicated he had no psychiatric problems. There is no indication in his military records that he failed to meet medical retention standards. His VA medical notes document he has “a history of PTSD” as per the applicant,s report. The PTSD screen administered by a VA psychologist as part of the applicants mental health assessment was negative. Accordingly, the applicant was not diagnosed with PTSD by the VA psychologist.

h. Based on the information available at this time, the reviewing psychiatrist feels there is insufficient evidence to support the applicant,s contention that he developed PTSD while in the military.

13. The applicant was provided with a copy of this advisory opinion but he did not respond.

REFERENCES:

1. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.

a. Chapter10 provided that a member who has committed an offense or offenses under the UCMJ 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 with no coercion by Army personnel. A medical examination was not required but could be requested by the Soldier under the provisions of AR 40-501. A Soldier who requests a medical examination must also have a mental status evaluation before discharge. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

b. Paragraph 1-14 stated that when a member was to be discharged under other than honorable conditions, the convening authority would direct an immediate reduction to the lowest enlisted grade.

c. Paragraph 3-7a states 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.

d. Paragraph 3-7b states 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. AR 635-40, in effect at the time, stated disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it 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. Paragraph 4-3 stated that enlisted Soldiers would not be referred for, or continue, physical disability processing when action was started under any regulatory provision which authorized a characterization of service of under other than honorable conditions.

3. AR 40-501 provides information on medical fitness standards for inductions, enlistment, appointment, retention, and related policies and procedures.

4. PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster. The American Psychiatric Association (APA) publishes the DSM 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.”

5. 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.

6. The 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.

7. 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, 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.

8. 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 under other than honorable conditions 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.

9. 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 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,

10. 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 under other than honorable conditions 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 under other than honorable conditions. 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.

11. AR 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires.
DISCUSSION:

1. The applicants military record is void of the complete facts and circumstances that led to his voluntary request for discharge. However, the evidence does show court-martial charges were preferred against the applicant for communicating a threat and attempted murder.

2. His DD Form 214 shows he was discharged on 28 July 1971 under the provisions of chapter 10 of AR 635-200, in lieu of a court-martial. The issuance of a discharge under the provisions of chapter 10, AR 635-200 required the applicant to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by a court-martial.

3. It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant has provided no information that would indicate the contrary. Further, it is presumed that the applicants discharge accurately reflects his overall record of service.

4. The medical review of the applicant’s records revealed that he met medical retention standards. A review of the available documentation found no evidence of a medical disability or condition which would support a change to the character of service or reason for the discharge in this case.

5. The behavioral health review revealed that there is no indication in his military records that he failed to meet medical retention standards. Based on the information available at this time, the reviewing Agency psychiatrist feels there is insufficient evidence to support the applicants contention that he developed PTSD while in the military.

6. The applicant’s request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings AR20150000953

Enclosure 1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) AR20150010024

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20150010024

16

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2