MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 9 June 1999
         DOCKET NUMBER: AR1997010596


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

Mr. Loren G. Harrell		Director
Mr. David E. Weightman		Analyst

The following members, a quorum, were present:

Ms. Elizabeth Buchanon		Chairperson
Mr. Raymond J. Wagner		Member
Mr. James P. Steuve		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

APPLICANT REQUESTS: Reconsideration of his previous application to correct his records by showing he was erroneously court-martialed, erroneously discharged based on fraudulent enlistment, and upgrading his discharge from a general discharge, under honorable conditions to fully honorable.

APPLICANT STATES: In effect, applicant defers to counsel.

COUNSEL CONTENDS: Refers to previously submitted evidence. The applicant’s undesirable discharge for fraudulent enlistment was improper. Since the enlistment is void ab initio, the applicant should have been released based upon enlistment error and his discharge should be currently fully honorable. The Board erroneously adopts the premise that it is without power to make a substantive legal and equitable review of the applicant’s court-martial conviction, but it is not only possible but mandated by law. Also not taken into consideration is the applicant’s medical suffering. The applicant’s PTSD condition was improperly not considered in this case. While the condition was only discovered after service, it occurred during the service, and the failure to timely discover that condition constituted error or an injustice warranting relief. The condition, if timely discovered, would have likely authorized service administered benefits predicated upon the condition.

Counsel also requests the applicant receive a personal hearing in his case, and that any advisory opinions received in this case be provided.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 14 May 1997 (COPY ATTACHED).

No new evidence has been provided.

The applicant received an undesirable discharge on 22 May 1956. It was based on a fraudulent reenlistment on 17 January 1955. Prior to his reenlistment, on 10 January 1955, he was arrested and convicted of larceny of whiskey and cash. He was admitted to probation with the condition to pay restitution of $75.00.

On his reenlistment he did not answer the question concerning whether or not he was convicted of a felony or any other offense. He left it blank and later explained that the recruiter told him to do so.




His service was further marked by misconduct, including a General Court-Martial conviction of larceny, for stealing from another soldier, and of disorderly conduct. His conduct and efficiency ratings were below average.

On 11 August 1969 his discharge characterization was upgraded to a general discharge, under honorable conditions, by the Discharge Review Board. The basis for the discharge remained unchanged.

There was no opinion requested or received in this case.

PTSD (Post Traumatic Stress Disorder), 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). The condition is described in the current DSM-IV, pages 424 through 429. 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. The Surgeon General’s Psychiatry Consultant has previously advised the Board (14 July 1995) that the diagnosis of PTSD does not explain or excuse criminal behavior.
The statutory authority under which this Board was created (Title 10, United States Code, section 1552, as amended) precludes any action by this Board which would disturb the finality of a court-martial conviction.






The regulation guiding this Board provides that a personal or formal hearing may only be determined by the members of the Board.

Pertinent regulations provide that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be inappropriate.

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. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant and counsel have failed to submit evidence that would satisfy the aforementioned requirement.

2. The applicant was properly discharged. He nor counsel have shown otherwise. He enlisted fraudulently through his own misconduct. To later blame the occurrence on others does not convince the Board it was not his fault when he failed to disclose a previous conviction at his reenlistment when given the chance to do so.

3. There is no evidence the applicant’s service was interrupted by PTSD. His service was not interrupted by a medical condition, it was interrupted by his own misconduct.

4. The Board notes his discharge was upgraded to a general discharge, under honorable conditions. However, his service is not deserving for a further upgrade to fully honorable.

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

eb______ rjw______ jps _____ DENY APPLICATION




                                                      Loren G. Harrell
                                                      Director

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INDEX

CASE ID	AC96-10973A/AR1997010596
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	1999 June 9
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	134
2.	110
3.
4.
5.
6.