Record of proceedings in the case of



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RECORD OF PROCEEDINGS

IN THE CASE OF:


BOARD DATE: 8 January 2004

DOCKET NUMBER: AR2003088979

I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.





Mr. Carl W. S. Chun




Director




Ms. Joyce A. Wright




Analyst

The following members, a quorum, were present:







Ms. Kathleen A. Newman




Chairperson




Ms. Linda M. Barker




Member




Mr. John T. Meixell




Member

The applicant and counsel if any, did not appear before the Board.


The Board considered the following evidence:
Exhibit A - Application for correction of military records.
Exhibit B - Military Personnel Records (including advisory opinion, if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests reconsideration of his earlier request to the Army Board for Correction of Military Records (ABCMR) to upgrade his discharge from undesirable to general. He also requests that his DA Form 20 (Enlisted Qualification Record) be corrected to show that he qualified as expert instead of sharpshooter on the Marksmanship Qualification Rifle (M16).
2. The applicant states that his original statement documented a long history of childhood trauma and that he has conducted some additional research regarding Post Traumatic Stress Disorder (PTSD).
3. The applicant provides an additional letter discussing new evidence pertaining to PTSD. This document was not previously reviewed by the ABCMR; therefore, it is considered new evidence.
4. In his additional statement, he states that he was subjected to extended periods of physical abuse as a child. He conducted some additional research at the National Center for PTSD regarding children and trauma. Some of the causes of PTSD in children were listed as physical and sexual assault and witnessing of traumatic events. Some of the characteristics exhibited by children subjected to these horrors were impulsive/aggressive behavior, inappropriate behavior, self-destructive behavior, substance abuse, difficult relationships with peers, acting out, and substandard performance.
5. He also stated that psychiatric disorders related to these same issues could be Conduct Disorder and Oppositional Defiant Disorder to name a few. The National Center for PTSD defines Complex PTSD as long term exposure to these same events as described. Some of the effects of the disease are: (1) Alterations in Emotional Regulation: explosive anger, sadness, suicidal ideation; (2) Alterations in Self Perception: helplessness, shame, guilt; (3) Alterations in Relations: isolation, distrust; and (4) Alterations in Systems of Meaning: loss of faith, despair, and hopelessness. He goes on to state that one of the dominant characteristics displayed is self-harm. Based on the information provided, he felt that his discharge warrants an upgrade to honorable.
6. He states that he has provided letters from former service members who served with him during Vietnam that testify that he requested both medical and psychiatric assistance. He states that regulations pertaining to Anxiety and Neurotic Disorders, including PTSD, state that they are unfitting if resulting in "ineffective performance of military duty'' which are eligible for an honorable discharge. Regulations further state that only a psychiatrist can diagnose a "personality disorder."

7. He states that his enlistment documents contain statements by him documenting drug use, behavior problems, and an inability to complete or maintain discipline in school. He signed a statement documenting the fact that he spent his teenage years in an institution for emotionally disturbed children. His records indicate that his potential for rehabilitation was excellent; however, he did spend 5 days in detoxification. He suggests that there are several cases similar in nature to his. He states that he provided a statement prior to his discharge regarding his health and that he was not qualified to self assess his psychological problems. The Army was unable to diagnose his illness and that current regulations recognize drug and alcohol addiction as "preventable and treatable." He states that he began his search for sobriety and healing; however, this process has led him to believe that justice was not served.


8. He concludes by stating that his DA Form 20 reflects a score of 76 which qualifies him as expect; however, his DD Form 214 shows sharpshooter.
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2002071649, on 23 July 2002. In this document number, request for an upgrade of the applicant's discharge was denied.
2. The applicant's record contains a copy of his entrance examination, dated 5 January 1971, which was prepared prior to his enlistment. The applicant was found qualified for enlistment with a 111111 physical profile.
3. He enlisted on 14 January 1971, as an aircraft powertrain repairman. He served in Vietnam from 22 July 1971 to 15 July 1972.
4. Between 5 October 1972 and 5 April 1973, he received nonjudicial punishment (NJP) on five occasions under Article 15, Uniform Code of Military Justice (UCMJ), for operating his privately owned vehicle on post without a post registration, speeding, absent without leave (AWOL) on three occasions, and for failure to go to his appointed place of duty on three occasions. His punishments consisted of forfeitures of pay, reduction to pay grade E-3 and E-2, restriction, and extra duties.
5. The applicant went AWOL on 17 April 1973 and returned to military control on 23 April 1973. He again departed AWOL and remained absent until he was returned to military control on 25 July 1973, when charges were preferred.
6. The applicant underwent a separation medical examination on 21 August 1973 and was found qualified for separation with a 111111 physical profile.

7. The facts and circumstances pertaining to the applicant’s discharge are not present in the available records. However, his DD Form 214 shows that on 24 September 1973, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial. He was furnished an Undesirable Discharge Certificate. He had a total of 2 years, 4 months, and 24 days of creditable service and had 109 days of lost time due to AWOL.


8. Item 24 (Decorations and Awards) of the applicant’s DD Form 214, which was authenticated in his own hand, shows the entry “Sharpshooter (Rifle)."
9. Item 29 (Qualification in Arms) of his DA Form 20 shows that the entry "M-16 S (Sharpshooter) 76 710305 (5 March 1971)."
10. The applicant provided a copy of a letter from his marriage counselor. The counselor stated she met the applicant while working as an intern with another psychologist. One of her responsibilities was to participate in group sessions and retreats dedicated to therapeutic treatment. She specializes in treatment of child abuse, domestic violence, and critical incident briefing for professionals. She has extensive experience conducting critical incident stress debriefings and providing treatment for PTSD. She has treated employees in law enforcement and combat veterans. In 1990, an article was written on the biological impact of devastating trauma, including the impact of "the terror of combat, torture, or repeated abuse in childhood."
11. The counselor also stated that scientific research has shown that PTSD is not a psychological response to events, but is the physiological and biological outcome of an overtaxed stress response system. She further stated that veterans with childhood histories of physical or sexual abuse were significantly more likely to develop PTSD as a result of combat. These finding were significant in explaining the applicant's aberrant behavior during his wartime experience that was out of control. His childhood experiences were validated by family members. The counselor's colleague, a psychologist, diagnosed the applicant as having depression secondary to PTSD, substance abuse, and ruled out personality disorder.
12. As of now, the counselor stated that the applicant would most certainly be diagnosed as suffering from severe PTSD. In conclusion, the counselor requests that the applicant's discharge be upgraded and that he be restored to society as an honorable member of the military family.
13. The five character reference letters provided by the applicant attest to his character, attitude, drug use, and psychological problems.
14. There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.
15. Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service

in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant’s separation the regulation provided for the issuance of an undesirable

discharge.
16. PTSD, an anxiety disorder, was not recognized as a psychiatric disorder until 1980 with the publishing of the Diagnostic and Statistical Manual of Mental Disorders (DSM) III. The condition is described in the current DSM IV, pages 424 through 427. While psychiatrists have only categorized PTSD as a distinct diagnosis since 1980, it has, as early as the Civil War, been described in psychological literature, variously labeled as shell shock, soldier’s heart, effect syndrome, combat fatigue and traumatic neurosis. During the period of time in question, similar psychiatric symptomatology was categorized as hysterical neurosis. Although the current label of PTSD is of rather recent acceptance, the idea that catastrophes and tragedies can result in persistent emotional and psychological symptoms is common even among the lay public. While PTSD was not recognized as a specific illness at the time of the applicant’s separation from the service, the fact that an individual might not be fit for further military

service because of psychosis, psychoneurosis, or neurological disorders was outlined in Army Regulation 40-501 which was in effect at the time of his separation. The Army established standards and procedures for determining



fitness for retention and utilized those procedures and standards in evaluating individuals at that time. The specific diagnostic label given to an individual’s condition a decade or more after his discharge from the service may change, but any change does not call into question the application of then existing fitness standards.
17. The Manual for Courts-Martial, R.C.M. 916, provides that it is an affirmative defense to any offense that, at the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his or her acts. Mental disease or defect does not otherwise constitute a defense. The accused is presumed to have been mentally responsible at the time of the alleged offense. This presumption continues until the accused establishes, by clear and convincing evidence, that he or she was not mentally responsible at the time of the alleged offense.

DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows that he received five NJPs, departed AWOL twice after his last NJP, and charges were preferred against him. The evidence shows that he was discharged in lieu of trial by court-martial for an unknown offense.
2. There is no evidence of record, or evidence presented by the applicant, which indicates procedural errors which would jeopardize the applicant's rights. The type of discharge and the reason for separation were appropriate considering all of the facts surrounding this case.
3. The applicant has failed to show evidence that he experienced readjustment problems or PTSD during his period of service. While the applicant contends that he suffered from what would later be named PTSD, there is no indication that he was unable to distinguish right from wrong and adhere to the right. As such, even if he had PTSD while he was on active duty, it would not constitute a defense for his repeated acts of misconduct.
4. The applicant's entrance separation clearly showed that he was qualified for enlistment and his separation medical examination clearly showed that he was found qualified for separation with no mental defects. The documentation provided by the applicant indicates that he is currently suffering from PTSD; however, this document was prepared 30 years after his discharge.
5. The applicant’s stateside and Vietnam service and well-being were considered in the Board’s determination in the reassessment of his discharge status. However, his five NJPs and two additional AWOLs totaling 109 days are too serious to be excused or to warrant relief.
6. The Board notes the applicant's character references that attested to his character, attitude, drug use, and psychological problems. However, this evidence is insufficient to support his request for an upgrade of his undesirable discharge.
7. The applicant's records clearly show that he attained a score of 76 on the Marksmanship Qualification Rifle (M16) and qualified as sharpshooter which is shown on his DD Form 214. The applicant has failed to show, through the evidence submitted with his application or the evidence of record, that he qualified as expert. Therefore, there is no basis to correct his records. It is also noted that the DA Form 20 is no longer maintained after discharge.

BOARD VOTE:
________ ________ ________ GRANT RELIEF
________ ________ ________ GRANT FORMAL HEARING
__kn___ ___lb___ ___jm_____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR2002071649, dated 23 July 2002.

___Kathleen A. Newman__

CHAIRPERSON

INDEX



CASE ID

AR2003088979

SUFFIX




RECON




DATE BOARDED

20040108

TYPE OF DISCHARGE

UD

DATE OF DISCHARGE

19730924

DISCHARGE AUTHORITY

AR 635-200, chapter 10

DISCHARGE REASON




BOARD DECISION

DENY

REVIEW AUTHORITY




ISSUES 1.




2.




3.




4.




5.




6.






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