IN THE CASE OF: BOARD DATE: 29 October 2015 DOCKET NUMBER: AR20150005597 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 general, under honorable conditions discharge (GD) to honorable. 2. The applicant states, in effect, that he suffers from post-traumatic stress disorder (PTSD) and was sexually assaulted by the company clerk, 574th Personnel Service Company, in the Federal Republic of Germany (FRG). He also relates how the brutal killings he saw had put him in shock, confusion, and left him feeling hurt, angry, and scared. 3. The applicant provides copies of: * DD Form 4 (Enlistment Contract - Armed Forces of the United States), dated 25 March 1970 * DD Form 214 (Report of Separation from Active Duty) effective 20 March 1971 * Psychiatric Evaluation, Community Wellness Center, dated 6 February 2002 (4 pages) * Report of Psychological Assessment and Evaluation, Veterans Affairs (VA) Medical Center, dated 2 October 2002 (3 pages) * Statement to whom it may concern, dated 8 October 2002 * Statement to whom it may concern, dated 10 October 2002 * Statement to whom it may concern, undated * VA Form 21-4138 (Statement in Support of Claim) dated 16 October 2002 (3 pages) * Letter from a certified psychiatrist to a Veteran Service Officer, dated 11 April 2005 * Letter from a certified psychiatrist to a District Officer, VA, circa April 2005 * Letter from certified psychiatrist to this Board, dated 6 June 2005 * Letter written by the applicant, dated 20 March 2008 * Letter written by the applicant, dated 11 October 2014 * Letter from the applicant's wife, undated * Vista Electronic Medical documentation, Progress Notes, dated between September 2013 and October 2014 (13 pages) * Letter from the VA to the applicant, dated 12 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 22 January 1969. He completed pioneer training at Fort Leonard Wood, Missouri. 3. On or about 26 June 1969, the applicant departed the United States for duty in the FRG. a. On 2 August 1969, he was assigned as a general clerk with the 574th Personnel Service Company. b. On 24 September 1969, he accepted nonjudicial punishment for being absent from the unit work call formation. c. On 13 January 1970, he was advanced to the rank of specialist four, pay grade E-4. d. On 24 March 1970, the applicant was honorably discharged for the purpose of immediate reenlistment, which he accomplished on 25 March 1970. e. On 25 March 1970, he was reassigned within the company for duty as a field wireman. 4. On 5 April 1970, the applicant departed the FRG for duty in the Republic of Vietnam (RVN). a. On or about 12 June 1970, he was assigned for duty as a field wireman with the 1st Battalion, 6th Infantry Regiment, 198th Infantry Brigade. b. He was absent without leave (AWOL) on 9 and 10 September 1970 (2 days). c. He was AWOL from 13 September to 5 October 1970 (23 days). 5. On 16 November 1970, the applicant was convicted by a special court-martial for the two AWOL offenses discussed above. 6. The applicant was AWOL from on or about 17 December 1970 to his return to military control on or about 27 January 1971. 7. The applicant departed the RVN on or about 18 March 1971. 8. The discharge packet is missing from his military records. However, his DD Form 214 shows that he was administratively discharged on 20 March 1971, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service. His service was characterized as under other than honorable conditions. He completed a total of 2 years, 1 month, and 3 days of creditable active duty service and he had 25 days of lost time. 9. On 19 January 1978, the applicant's characterization of service was upgraded to general, under honorable conditions based on a de novo review under the Department of Defense Discharge Review Program (Special) (SDRP). 10. On 27 July 1978, the applicant was notified that a review of his discharge had been completed by the Army Discharge Review Board (ADRB), as required by Public Law 95-126. As a result of this review, a preliminary determination was made that he would not qualify for upgrading under the new uniform standards for discharge review. 11. In a letter dated 10 August 1978, the applicant was informed that the ADRB could not affirm the SDRP upgraded discharge. He was further informed that he retained the upgraded discharge but that his ability to acquire VA benefits may be impacted. 12. Evidence provided by the applicant shows that on 6 February 2002 the applicant underwent psychological testing. The resulting test scores fit the range for classification of PTSD in that he had indicated symptomatology of social emotional isolation, anger, irritability, anxiety, depression, hypervigilance, as well as nightmares and flashbacks. 13. His available military record does not contain any medical records. 14. 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, 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 an individual who was discharged for the good of the Service. 15. 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." 16. 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. 17. 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. 18. 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. 19. 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. 20. 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? 21. 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. 22. In the processing of this case, an advisory opinion was obtained from the Office of The Surgeon General (SGO), Department of the Army. The opinion stated that based on the following evidence, it is reasonable to conclude the presence of potentially untreated PTSD during the time period of indiscipline explains or directly mitigates the applicant’s actions. a. The applicant reported he was exposed to multiple traumatic events including witnessing a Vietnamese woman, with whom he just had a sexual encounter, murdered in front of him by several African American men. b. The applicant reported he went AWOL after this traumatic experience and went into a small village in hopes he would be killed. c. The applicant reported he discovered two dismembered American service members and witnessed multiple Vietnamese prisoners of war thrown off of a helicopter to their death by fellow service members. d. The applicant reports he went AWOL a second time and was jailed and administratively discharged from the military. e. The applicant is currently receiving behavioral health care from the VA for chronic PTSD and depression. His previous treating psychiatrist opined that the applicant’s PTSD was associated to the events he experienced in the RVN. 23. On 21 July 2015, a copy of the advisory opinion was sent to the applicant for his information and opportunity to respond. No response was received. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his general, under honorable conditions discharge should be upgraded to honorable because he suffers from PTSD resulting from his being sexually assaulted in the FRG and from his horrific experiences in the RVN that shocked and confused him and left him feeling hurt, angry, and scared. 2. In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. 3. 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. 4. Soldiers who suffered from PTSD and were separated solely for misconduct subsequent to a traumatic event warrant careful consideration for the possible re-characterization of their overall service. 5. A review of the applicant's record and the evidence that he provides shows that he was subjected to the ordeals of war while serving in the RVN 6. Subsequent to these experiences, medical evidence shows the applicant was diagnosed by a competent mental health professional with having PTSD related symptoms. Therefore, it is reasonable to believe the applicant's PTSD condition existed at the time of discharge. 7. The available evidence shows that in 1978 the applicant's characterization was upgraded under the SDRP to GD. That same year the ADRB informed the applicant that it had denied to affirm the SDRP action because the circumstances of his discharge did not qualify under the uniform standards. 8. Based on the circumstances surrounding his administrative discharge and the subsequent evaluation and opinion from the SGO, it would be appropriate for the Board to affirm the SDRP upgrade of the applicant’s characterization of service to GD. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ____X___ ____X___ ____X___ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was 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 re-issuing the applicant's DD Form 214 for the period ending 20 March 1971 to show the characterization of service as "General, Under Honorable Conditions." 2. The Board further determined that 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 showing the characterization 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) AR20140004034 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005597 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1