Title: APPLICANT REQUESTS: In effect, reconsideration of his previous application to correct his records by upgrading his undesirable discharge
Author: WoodsHN

ABCMR Memorandum of                                                                AC93-07187A
Consideration (cont)

APPLICANT REQUESTS:  In effect, reconsideration of his previous application to correct his records by upgrading his undesirable discharge.

APPLICANT STATES:  In effect that post traumatic stress disorder (PTSD) is the condition he was suffering from and not anti-social personality as diagnosed by the psychiatrist in the separation report.  That several factors were ignored as the reasons for his condition, such as, his overall outstanding military record prior to the examination, anger over the disapproval of his request to marry a Vietnamese National, improper counseling regarding the type of discharge he received and the command’s refusal of rehabilitative help based on the psychiatrist’s diagnosis.

COUNSEL CONTENDS:  Counsel concurs in the applicant’s presentation and requests that all reasonable doubt be resolved in the applicant’s favor.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum of consideration (MOC) prepared to reflect the Board's original consideration of his case on 16 June 1993 (COPY ATTACHED).

The applicant’s contention that PTSD was the cause for his action constitutes new argument.  He submits a 1997 letter from the pastor of the Erie Christian Fellowship in Pennsylvania who describes the applicant’s many hours of maintenance service, his good attitude and his regular attendance at the services. 

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 PTSD has only been categorized by psychiatrists 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.  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.  Army Regulation 40-501 does not specifically categorize PTSD; however, it does address anxiety or neurotic disorders, which include PTSD, and provides that such disorders are unfitting only if persistence or recurrence of symptoms is sufficient to require extended or recurrent hospitalization, creates a necessity for limitations of duty or duty in a protected environment or resulting in interference with effective performance of military duty.  

The applicant was discharged, under the provisions of chapter 10, Army Regulation 635-200 for the good of the service in lieu of trial by court-martial.  At the time of discharge the applicant had 3 years, 2 months, and 2 days of creditable active service and 226 days of lost time.

The applicant’s claim of inadequate counsel is unfounded as evidenced by his military records.  On 28 June 1969 it was only after consulting with a legal counsel that the applicant voluntarily requested a discharge in lieu of trial by court-martial and was advised of his rights as described in the previous MOC.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  There is no evidence in the record that, at the time of his discharge, the applicant was suffering from a mental or emotional defect so severe that he could not tell right from wrong and adhere to the right, therefore, the PTSD issue does nothing to demonstrate an injustice in the discharge

2.  The applicant was being processed for separation under conditions that could have led to discharge under other than honorable conditions and was not eligible for physical disability processing.  The general court-martial convening authority (GCMA) could have authorized physical disability processing based only on a finding that the disability was the cause or a substantial contribution cause of the misconduct or when specific circumstances warrant disability rather than administrative separation.

3.  Contrary to the applicant’s assertions, there is no evidence to support his contention that he was not provided adequate counsel.

4.  Prior to reaching the determination that it was not in the interest of justice to excuse the failure to timely file, the Board looked at the entire file.  It was only after all other aspects had been considered and it had been concluded that there was no basis to recommend a correction of the records that the Board considered the statute of limitations. Had the Board determined that an error or injustice existed it undoubtedly would have recommended relief in spite of the failure to submit the application within the 3 year time limit.  The Board has never denied an application simply because it was not submitted within the required time.

5.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director