MEMORANDUM OF CONSIDERATION


IN THE CASE OF:
        

BOARD DATE: 15 January 2002
DOCKET NUMBER: AR2001059524

         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. Carl W. S. Chun		Director
Mr. Gerald E. Vandenberg		Analyst

The following members, a quorum, were present:

Ms. Irene N. Wheelwright		Chairperson
Mr. Hubert O. Fry, Jr.		Member
Mr. Donald P. Hupman, Jr.		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: In effect, reconsideration of his application to correct his records by purging all references to his courts-martial from his records, reinstating his rank and granting him physical disability retirement.

APPLICANT STATES: In effect, the he was suffering from an acquired psychiatric condition that led to the events that resulted in his courts-martial and subsequent discharge. He defers further comment to his counsel.

COUNSEL CONTENDS: That the applicant was and is suffering from “extreme and debilitating psychiatric problems” that are related to his period of service in Vietnam. Counsel reports that the applicant has been involved in several programs through the Department of Veterans Affairs (VA) for these problems. He contends that the applicant has been unable to properly apply to this Board or to function appropriately in daily living.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records, which were summarized in the decisional document prepared to reflect the Board's previous consideration of the case (AR2000044601) on 29 March 2001.

The applicant submits a copy of a report of a 9 January 1991 VA special neuropsychiatric examination and a 20 October 1999 letter of support from the VA Vet Center to the VA Adjudication Officer.

The applicant’s submissions are new evidence that require Board consideration.

As noted in the Board’s prior decisional document, the applicant had been evaluated by a psychiatrist prior to his discharge and was afforded the diagnosis of a character and behavioral disorder.

In the report of a 1991 VA special neuropsychiatric examination, the attending physician stated that the applicant had been seen at the VA Vet Center since 1980. The doctor outlined the applicant’s reported history and reported on interviews with both the applicant and his wife. The report showed that the applicant was receiving both individual and group outpatient psychotherapy. The doctor rendered the diagnoses of Post Traumatic Stress Disorder (PTSD), mixed personality disorder and history of alcohol and drug abuse.

In the Vet Center caseworker’s 1999 letter to the VA Adjudication Officer, the caseworker related the applicant’s medical history and his perception of the interaction and interrelationship of the various diagnoses to PTSD. The caseworker considered poly drug abuse as an attempt at self-medication and the personality disorder as an avoidance of the underlying PTSD. The applicant’s suicide attempts were viewed as related to depression caused by the underlying aspects of his PTSD. The caseworker lists the applicant’s problems as:
Axis I   PTSD, severe
         Polysubstance dependence, in full remission
Axis II  Deferred on Axis II (Antisocial traits)
Axis III         Heart murmur, hepatitis C, chronic sinusitis
Axis IV  Chronic depression, low self-esteem, suicidal ideation,
         problems with authority, intrusive memories, isolation from
         others, recurring sleep problems, difficulty trusting others,
         claustrophobia and unemployability.

The caseworker opines that regardless of the diagnosis, the applicant developed a significant problem ”while serving his country.”

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 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 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.

Army Regulation 40-501 provides medical fitness standards for retention and separation, including retirement. Chapter 3 provides the various medical conditions and physical defects that render individuals unfit for further service. Personality disorders may render individuals administratively unfit rather than unfit due to physical disability. Interference with effective performance of duty in association with these conditions is to be dealt with through appropriate administrative channels.
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.

Army Regulation 635-40 (Physical Evaluation for Retention or Separation) provides in paragraph 4-3 that an enlisted soldier on whom elimination action that might result in a discharge under other than honorable conditions has been started may not be processed for physical disability processing. Such a case is to be referred to the officer exercising general court-martial jurisdiction. The general court-martial convening authority (GCMA) may authorize physical disability processing based only on finding that the disability is the cause or a substantial contributing cause of the misconduct or when specific circumstances warrant disability rather than administrative separation. This authority may not be delegated. A copy of the determination must be entered into the case file when it is forwarded.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR. It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration. The staff of the Board is authorized to determine whether or not such evidence has been submitted.

The regulation provides further guidance for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case. In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision. If the staff finds such evidence, the case will be resubmitted to the Board. If no such evidence is found, the application will be returned without action.

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 information in the applicant’s VA records is noted. However, absent convincing evidence that, at the time of the discharge or the behavior that led to the discharge, the applicant was so impaired by psychiatric, psychological, mental, or emotional problems that he could not both tell right from wrong and adhere to the right, the PTSD issue does nothing to demonstrate an error or an injustice in the discharge.

2. An award of a VA rating does not establish entitlement to medical retirement or separation. The VA is not required to find unfitness for duty. Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected. Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

3. Further, from the time that the applicant was placed under charges he was ineligible for physical disability processing unless the court-martial convening authority took positive action.

4. 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.

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

__INW __ ___HOF_ __DPH __ DENY APPLICATION




         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2001059524
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	YYYYMMDD
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	133.03
2.	108.01
3.	105.02
4.
5.
6.