APPLICANT REQUESTS:  In effect, the applicant requests physical disability retirement or separation.  He states that he was diagnosed with post traumatic stress disorder (PTSD) by the VA in 1992.  He was suffering from PTSD when he was discharged in 1987, and before.  He states that he now knows that he was displaying symptoms as early as 1984. He received no treatment for PTSD.  

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military personnel records are not available.  Information contained herein was obtained through alternate sources.

A 18 April 1968 report of medical examination indicates that the applicant was medically qualified for separation with a physical profile of 1 1 1 1 1 1.  In the report of medical history the applicant furnished for the examination, he indicated that he had malaria in November 1967 in Vietnam.  He stated, “I am in good health”.

A 20 September 1974 physical profile record shows that the applicant was awarded a temporary profile for a fracture to his right ankle, and that profile was continued on 
11 October 1974 because of a foreign body, metallic screw, to his right ankle (removed surgically).

A 11 December 1975 report of medical examination indicates that the applicant was medically qualified for retention with a physical profile of 1 1 1 1 1 1.

A 23 January 1984 medical record from Keller Army Hospital at the West Point Military Academy, indicates that the applicant was an active duty Captain, due to be separated from the Army, and was treated for jaundice, bilirubinuria, mild tiredness and nausea. 

A DD Form 214 (Certificate of Release or Discharge from Active Duty) indicates that the applicant had entered on active duty during the period covered by this DD Form 214, on 15 November 1986 and was discharged on 20 June 1987 in the rank and grade of Major, 04, under other than honorable conditions.  The discharge authority was Army Regulation 635-120, chapter 5.  The narrative reason for his discharge was conduct triable by court-martial.  He had 17 years, 
1 month, and 13 days of active service.

A 4 October 1988 VA rating decision awarded the applicant a 10 percent service connected disability for residual for a fracture to his right ankle, from 2 March 1988.

A 6 November 1991 VA rating decision awarded the applicant a 50 percent service connected disability rating for PTSD from 16 August 1991, and a 10 percent rating for residuals for a fracture to his right ankle from 2 March 1988.

A 28 November 1994 VA PTSD examination indicates that the applicant was in Vietnam from 1966 to 1968 with the special forces, that the applicant’s most vivid memories are of the first man he shot, that the applicant was angry about the whole system -  the VA in particular - and the world in general.  This VA examination indicates that the applicant was in the service from 1963 to 1968, got out of the service and went to college, and was in again from 1972 to 1984, and did some reserve time from 1986 to 1987.  The applicant was diagnosed as having severe PTSD.

VA rating decisions of 1992 and 1994 show the applicant was awarded a 100 percent service connected disability for PTSD, and a 10 percent rating for residuals for a fracture to his right ankle. 

A VA rating decision of 26 January 1995 continued the award of 100 percent service connected disability for PTSD from 
16 August 1991, and a 10 percent rating for residuals for a fracture to his right ankle from 2 March 1988.  A 
5 February 1997 continued the award of 100 percent service connected disability for PTSD.  

Army Regulation 635-120 provides policies and procedures for separation of officers from active duty.  Chapter 5 of that regulation states, in part, that an officer may submit a resignation for the good of the service when court-martial charges are preferred against the officer with a view toward trial by general court-martial.  A resignation for the good of the service is normally accepted as being under other than honorable conditions.

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.  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 here 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.

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.


Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

Army Regulation 635-40 was changed by Department of the Army message, dated 27 February 1973, to provide that when a
member is undergoing evaluation because of a referral arising during processing for separation for reasons other than physical disability, his continued performance of duty until he is scheduled for separation creates a presumption that the member is fit for duty.

Army Regulation 635-40, paragraph 1-2, provides that a member who is charged with an offense for which he could be dismissed or given a punitive discharge may not be referred for disability processing.  However, if the officer exercising appropriate court-martial jurisdiction dismisses the charge or refers it for trial to a court-martial which cannot adjudge such a sentence, the case may be referred for disability processing.  When forwarded, the records of such a case must contain a copy of the action signed by the court-martial authority who made the decision.

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

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.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 
20 June 1987, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 20 June 1990.

The application is dated 11 January 1995 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

                      EXCUSE FAILURE TO TIMELY FILE

                      GRANT FORMAL HEARING

                      CONCUR WITH DETERMINATION




		Karl F. Schneider
		Acting Director