MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 17 December 1998
         DOCKET NUMBER: AC97-09323

         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. The following members, a quorum, were present:

Ms.	Karen L. Wolff		Chairperson
Mr.	Melvin H. Meyer		Member
Mr.	Kenneth L. Wright		Member

         Also present, without vote, were:

Mr.	Loren G. Harrell		Director
Mr.	Ed Clark		Analyst

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

         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 he application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

         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)

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APPLICANT REQUESTS: That his military records be corrected to show that he was separated by reason of physical disability. He states, in essence, that he believes that he was suffering from an anxiety disorder, post traumatic stress disorder (PTSD) beginning in 1965; that this illness caused him to receive a bad conduct discharge (sic); that the VA has determined that his PTSD condition is “service connected;” and that that he is currently (1996) being treated 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 records show:

He entered active duty on 11 March 1963. He served as an infantryman and attained pay grade E-4. His overseas tours included tours in Korea, Vietnam (where he was awarded the Combat Infantryman Badge on 4 February 1966), and Germany.

On 23 December 1964, while serving in Korea, he was punished under Article 15, UCMJ, for being in possession of an unauthorized pass.

On 10 May 1965 he was punished under Article 15, UCMJ, for attempting to assist another soldier in escaping from the custody of the military police.

On 14 August 1965, while serving at Fort Devens, Massachusetts, he was punished under Article 15, UCMJ, for failing to obey the lawful order of the charge of quarters, and for consuming alcohol in the unit dayroom.

On 28 April 1966, while serving in Vietnam, he was punished under Article
15, UCMJ, for failing to obey a lawful order issued by his commander regarding curfew.

On 31 March 1967, while serving in Germany, he was punished under Article
15, UCMJ, for being AWOL from 30 to 31 March 1967.

On 3 July 1967 he was punished under Article 15, UCMJ, for being AWOL from 30 June to 2 July 1967.

On 6 May 1968 he was convicted by a special court martial of being AWOL from 5 to 6 April and 16 to 17 April 1968, and for willfully disobeying the lawful command of a commissioned officer. The approved sentence included confinement at hard labor for 6 months.

On 3 July 1968 he underwent a psychiatric evaluation. He was found mentally responsible, able to distinguish right from wrong and to adhere to the right, and to have the mental capacity to understand and participate in board proceedings.

On 16 October 1968 his commander recommended that he be separated under the provisions of Army Regulation 635-212, unfitness. The commander cited the applicant’s frequent incidents of shirking duties and a complete disrespect for military authority as the basis for the recommendation.

After consulting with a military lawyer, the applicant waived his right to consideration of his case by a board of officers but did submit a statement requesting that he not be given an undesirable discharge. He wrote, in part, that his stepfather had been murdered on 22 September 1968; that his mother had two boys ages 8 and 9; and that he had to take charge of his father’s business and run the family affairs.

On 2 December 1968, with 5 years, 3 months total active service, and 175 days time lost, he was discharged. His separation document shows that he was issued a DD Form 258A, Undesirable Discharge Certificate.

On 27 April 1978 the Army Discharge Review Board (ADRB) voted unanimously to affirm the applicant’s upgrade of his discharge to under honorable conditions under the Special Discharge Review Program based on the applicant’s successful completion of a tour in Vietnam, an award of a prior honorable discharge, and his satisfactory completion of 24 months service prior to separation.

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). 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, Standards of Medical Fitness, 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.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade or rating because of disability incurred while entitled to basic pay.

Title 38, United States Code, section 3.303, provides that the term “service connection” connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the Department of Veterans Affairs to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.” A determination of service connection by the VA does not establish physical unfitness for military service as required by Title 10, United States Code, chapter 61.

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.

On 4 April 1977 the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between
4 August 1964 and 28 March 1973. This program, known as the DOD Discharge Review Program (Special) (SDRP) required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge. Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.

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. The U.S. Court of Appeals, observing that applicants to the Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (AR 15-185, paragraph 8), effectively shortens that filing period, has determined that the 3 year limit on filing to the ABCMR should commence on the date of final denial by the ADRB. In complying with this decision, the Board has adopted the broader policy of calculating the 3 year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized. The Board will continue to excuse any failure to timely file when 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 27 April 1978 the Army Discharge Review Board, the date of final action by the ADRB. The time for the applicant to file a request for correction of any error or injustice expired on 27 April 1981.

The application is dated 23 February 1996 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

KLW____ MHM____ KLW____ CONCUR WITH DETERMINATION




                  Loren G. Harrell
                  Director

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INDEX

CASE ID	AC97-09323
SUFFIX
RECON
DATE BOARDED	1998 December 17
TYPE OF DISCHARGE	BCD
DATE OF DISCHARGE	1968 December 2
DISCHARGE AUTHORITY	AR .40-501
DISCHARGE REASON	BCD
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.