MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 19 August 1998
         DOCKET NUMBER: AC97-05473

         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.	June Hajjar		Chairperson
Mr.	Curtis W. Barbee Jr.		Member
Ms.	Margaret K. Patterson		Member

         Also present, without vote, were:

Mr.	Loren G. Harrell		Director
Mr.	Joseph A. Adriance		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 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)

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APPLICANT REQUESTS: In effect, that his undesirable discharge (UD) by reason of unfitness be changed to an honorable discharge for medical reasons.

APPLICANT STATES: In effect, that he was not medically qualified to serve; that Post Traumatic Stress Disorder (PTSD) contributed to his discharge; that additional medical problems impaired his ability to serve; that his command did not follow proper procedures outlined in the regulation; and that he faced racial discrimination.

EVIDENCE OF RECORD: The applicant's military records show:

On 26 July 1966 the applicant entered the Regular Army for 3 years at the age of 19. He completed basic training at Fort Polk, Louisiana, advanced individual training at Fort Gordon, Georgia, and the basic airborne course at Fort Benning, Georgia. Upon completion of his training he was awarded military occupational specialty (MOS) 11B (Infantryman) and the additional skill identifier of P (parachutist). He was then assigned to combat service in Vietnam for his first permanent duty station.

The applicant’s record shows that the highest grade he attained while on active duty was private first class/E-3 and that he earned the National Defense Service Medal; the Vietnam Service Medal; the Republic of Vietnam Campaign Medal/w 60 device; and the Combat Infantryman’s Badge.

On 26 September 1966, while still in basic training the applicant accepted an NJP for being AWOL from 24 to 26 September 1966. He accepted his second NJP on 9 January 1967 for being AWOL from 28 December 1966 to 6 January 1967, while a student at the basic airborne course, Fort Benning. His third NJP was accepted on 18 April 1967 in Vietnam for being too intoxicated to perform his duties. On 10 May 1967 the applicant accepted his fourth NJP in Vietnam for leaving his post as a sentinel before being properly relieved. On 25 October 1967, while still in Vietnam, the applicant accepted his fifth NJP for being in an off limits area and disobeying a lawful order from a commissioned officer. The applicant accepted his sixth and last NJP, while he was in Panama, on
22 August 1968 for absenting himself from his place of duty.

The applicant was convicted by special court-martial on 9 July 1967 for violation of Articles 90 and 86 of the UCMJ, for disobeying a lawful order to get ready to go to the field, and for being AWOL from 8 to 14 June 1967. The applicant was sentenced to confinement at hard labor for 6 months, a forfeiture of $60.00 per month for 6 months, and to be reduced to the rank of private\E-1.

On 11 March 1968 the applicant was again convicted by special court-martial for three specifications of violation of Articles 90 and 92 of the UCMJ. The first for willfully disobeying the lawful order of a superior officer; the second for failing to obey a lawful order issued by the commanding general; and the third for failing to obey a lawful order issued by a superior noncommissioned officer. His sentence included a forfeiture of $68.00 per month for 4 months and a reduction to the rank of private/E-1.

On 6 December 1968 the applicant was again convicted by special court-martial for violation of Articles 87 and 90 of the UCMJ for missing a unit movement by design and disobeying a lawful order from a superior officer. He was sentenced to confinement at hard labor for 3 months; forfeiture of $90.00 per month for 3 months; and to be reduced to the rank of private/E-1.

On 14 March 1969 the applicant was convicted by his last special court-martial of three specifications for violation of Articles 86 and 92 of the UCMJ. The first specification was for failing to go to his prescribed place of duty on 18 February 1969; the second was for failing to go to his prescribed place of duty on
17 February 1969; and the third was for disobeying a lawful order. His resultant sentence was to be confined at hard labor for 6 months and to forfeit $97.00 per month for 6 months.

On 20 March 1969 the applicant underwent a psychiatric evaluation as a result of a command referral because of his repeated refusal to follow orders. The result of the evaluation was that the applicant’s mental status contained no psychiatric disease or incapacitating emotional illness. The diagnosis was that the applicant had a character and behavior disorder with aspects of oppositional personality. The recommendation was that the applicant promptly be separated from military service at the directive of command authority upon completion of his confinement. On 29 April 1969 the applicant underwent a separation physical examination in which his mental status was documented as normal in the clinical evaluation and he was determined qualified for retention/separation by competent medical authorities.

On 7 May 1969 the applicant’s unit commander recommended the applicant’s separation for unfitness, under the provisions of AR 635-212. Citing the applicant’s failure to respond to rehabilitation efforts while in confinement and his strong resentment of authority as his reasons for taking the action. On 8 May 1969 the applicant consulted counsel and completed his election of rights by waiving his right to have his case considered by a board of officers; waiving his right to appear before a board of officers; and electing not to submit a statement in his own behalf.
The appropriate authority approved the discharge and directed the applicant receive a UD. Accordingly, on 3 June 1969 the applicant was discharged after completing 2 years, 3 months, and 2 days of active military service, and accruing 207 days of time lost due to AWOL and confinement.

Army Regulation 635-212, then in effect, provided in pertinent part the policies, procedures, and guidance for the prompt elimination of enlisted personnel who were determined to be unfit for further military service. Individuals discharged under this regulation would normally be issued a UD.

On 14 June 1977, the Army Discharge Review Board (ADRB) upgraded the applicant’s discharge to a general, under honorable conditions, under the provisions of the Defense Discharge Review Program (Special). However, this upgrade was not affirmed under Public Law 95-126 by the unanimous vote of the ADRB on either 13 April or 10 August 1978.

On 12 April 1990 this Board denied the applicant’s request for an upgrade to his discharge based on the applicant’s failure to satisfactorily explain his failure to file in 19 years and the lack of demonstrating by competent evidence, that the waiver of the statute of limitations would be in the best interest of justice.

On 5 December 1995 the applicant was diagnosed with PTSD while in an inpatient status in a Department of Veteran’s Affairs medical facility in Waco, Texas. 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 which was in effect at the time of his separation. The Army has 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 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.

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. The Board concurs with the findings and conclusions of the ADRB’s held on 13 April and 10 August 1978 and presumes that the applicant's administrative separation was accomplished in compliance with applicable regulations. There is no indication of procedural errors by the ADRB which would tend to have substantially jeopardized the applicant's rights.

2. The Board considered the applicant’s contention that he should have been given a medical discharge based on his suffering from PTSD. However, the medical evidence of record indicates that the applicant was medically fit for retention/separation at the time of his separation. He has submitted no probative medical evidence to the contrary. Since the applicant's medical condition was not medically unfitting for retention at the time of his discharge, in accordance with Army Regulation 40-501, there was no basis for medical retirement or separation.

3. The Board found no evidence of record or independent evidence submitted by the applicant that supported his contentions that his command did not follow proper procedures for his discharge; and that he faced racial discrimination. The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The applicant was afforded all rights associated with the discharge and the character of the discharge is commensurate with the applicant's overall record of military service.

4. The Board considered the applicant’s claim that other medical problems and his age at the time of his service impaired his ability to serve. However, the Board concluded these factors did not mitigate the applicant’s extensive record of misconduct sufficiently to warrant an upgrade to his discharge.

5. 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 has failed to submit evidence that would satisfy the aforementioned requirement.

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