IN THE CASE OF: BOARD DATE: 26 April 2016 DOCKET NUMBER: AR20150001869 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___X____ ____X___ ____X___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 26 April 2016 DOCKET NUMBER: AR20150001869 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: 26 April 2016 DOCKET NUMBER: AR20150001869 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 19 September 1969. 2. The applicant states, in effect, that: a. When he arrived back in the states from service in Vietnam, he had a nervous breakdown and a hard time readjusting. b. He had trouble sleeping and was drinking heavily to calm his nerves from the flashbacks from Vietnam. c. All his medical documents are at Fort Carson, CO, with Headquarters, 5th Infantry Division. d. Due to his post-traumatic stress disorder (PTSD), his drinking to self- medicate caused him to receive ten driving under the influence (DUI) of alcohol charges and he was jailed three times. 3. The applicant does not provide any supporting documentation. 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. On 21 October 1966, the applicant enlisted in the Regular Army. 3. His DA Form 20 (Enlisted Qualification Record), item 31 (Foreign Service) shows he served in Vietnam from 25 April 1967 through 21 April 1968, for a period of 11 months and 27 days. 4. The evidence of record shows the applicant received four nonjudicial punishments (NJP’s) as follows, on: * 10 June 1967 – for failure to go to his appointed place of duty * 19 July 1967 – for failure to obey a lawful regulation * 21 August 1968 – for being absent without leave (AWOL) from 15 August 1968 to 18 August 1968 * 27 May 1969 – AWOL from 24 May 1969 to 27 May 1969 5. In addition, the applicant was convicted of two special courts-martial (SPCM’s) as follows, on: * 29 October 1968 – AWOL from 1 September 1968 to 5 September 1968, and for breaking restriction * 29 April 1969 – three specifications of AWOL from: o 12 March 1969 to 14 April 1969 o 2 June 1969 to 23 June 1969 o 25 June 1969 to 8 July 1969 6. On 7 August 1969, the applicant was pending a court-martial for being AWOL from 26 July 1969 to 6 August 1969; therefore, on 21 August 1969, he requested separation for the good of the service in lieu of a trial by court-martial. 7. On 21 August 1969, the applicant 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 an UOTHC discharge, and procedures and rights available to him. Subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial. 8. In his request for discharge, the applicant indicated he understood that by requesting discharge he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. He elected not to make a statement in his own behalf. 9. On 18 September 1969, the separation authority official approved his request and directed that he receive a UOTHC discharge. 10. On 19 September 1969, the applicant was discharged accordingly. His DD Form 214 for this period of service shows he completed 2 years, 5 months, and 4 days of total prior active duty service. He was discharged in the rank/grade of private/E-1. 11. His available military and medical records are void of any evidence, nor does he provide any evidence of a diagnosis of PTSD or a personality disorder that may have occurred or worsened while he was serving on active duty. 12. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board'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 under other than honorable conditions is normally considered appropriate. b. Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldier’s 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 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. 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 applicant contends that his service in Vietnam was the contributing factor that led him to have PTSD and ultimately commit misconduct. 2. His available military and medical records are void of any evidence and he does not provide any evidence of a diagnosis of PTSD. 3. The applicant had four NJP’s, two SPCM’s, and was pending a court-martial for AWOL, an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial. He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. In doing so, he admitted guilt and waived his opportunity to appear before a court-martial. 4. Based on his multiple NJP’s, two SPCM’s, a pending court-martial, and request for voluntary separation in lieu of trial by court-martial, his service was unsatisfactory, and an UOTHC discharge was appropriate. //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) AR20150001869 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2