MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 27 May 1999
         DOCKET NUMBER: AC97-11345
                                    AR1999023540

         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 H. Keller		Analyst

The following members, a quorum, were present:

Mr. Edward Williamson		Chairperson
Ms. Meta Waller		Member
Mr. Kenneth L. Wright		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)

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APPLICANT REQUESTS: In effect, physical disability retirement.

APPLICANT STATES: That at the end of his tour in Vietnam as a doorgunner, he developed post traumatic stress disorder (PTSD); that the last months of his tour he started having nightmares, and because of his mental state he opted for an “early out.” That back then nobody knew what PTSD was and no one understood what was wrong with him. He then states that the only reason he wants his discharge changed to medical is to be classified as “Retired Military,” for personal dignity. He waives any financial or medical rights that go with the term retired, that the pay and medical from the VA is sufficient.

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

He enlisted on 1 May 1967 and, after training, was assigned to Fort Stewart, Georgia. In September 1968 he was reassigned to Vietnam, where he served until his separation from active duty.

The applicant was separated early as an overseas returnee on 7 December
1969 at Oakland Army Base, California. He had 2 years, 7 months and 7 days of creditable service.

A 7 December 1969 report of medical examination indicates that he 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 stated his health was “good.”

Subsequent to separation, the VA awarded the applicant a service connected disability compensation rated at 30 percent (later upgraded to 100 percent) for PTSD.

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 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of active service or a disability rated at least 30 percent.






Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, paragraph 3-1, provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade or rating.

Paragraph 3-2b(1) of the regulation provides that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

Paragraph 3-2b(2) further provides that when a member is being separated by reason other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she is scheduled for separation or retirement creates a presumption that he or she is fit. This presumption can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties for a period of time 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

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 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 38, United States Code, sections 310 and 331, permits the VA to provide treatment and to award compensation for disabilities which were incurred in or aggravated by active military service.

In the processing of this case, an advisory opinion (COPY ATTACHED) was obtained from the staff medical advisor. It contains no information, advice or recommendation which would constitute a basis for granting the relief requested.

The applicant was provided a copy of the foregoing advisory opinion for his comment and possible rebuttal. He failed to respond within the 30-day time limit imposed by this agency.

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

1. The applicant’s military service was not interrupted by physical disability. Notwithstanding the presence, or possible presence, of various medical conditions, there is no evidence of record, nor has the applicant provided sufficient evidence, which would indicate that he suffered from any medical condition of such severity that he was rendered unable to reasonably perform the duties of his office, rank, grade or rating.

2. The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency. It does not, in itself, establish physical unfitness for Army purposes.

3. An award of a VA rating does not establish entitlement to medical retirement or separation from the Army. Operating under different law and its own policies and regulations, the VA, which has neither the authority nor the responsibility for determining medical unfitness for military service, awards ratings because a medical condition is related to service (service-connected) and affects the individual’s civilian employability. Furthermore, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings.

4. 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.

5. 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

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INDEX

CASE ID	AC97-11345/AR1999023540
SUFFIX
RECON
DATE BOARDED	19990527
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	145.00
2.	110.00
3.
4.
5.
6.