MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 19 March 2002
         DOCKET NUMBER: AR2001059949

         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. Edmund P. Mercanti		Analyst

The following members, a quorum, were present:

Ms. Shirley L. Powell		Chairperson
Mr. Stanley Kelley		Member
Mr. Elzey J. Arledge, 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)

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APPLICANT REQUESTS: That his discharge by authority of the Secretary of the Army be corrected to a medical discharge.

APPLICANT STATES: That while he was on active duty he was diagnosed as suffering from sickle cell trait, Post-Traumatic Stress Disorder (PTSD), and depression. Hospitalization for these types of psychiatric conditions, along with depression and psychotic features, should have resulted in his being issued a medical discharge.

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

He enlisted in the Regular Army on 28 April 1966, was awarded the military occupational specialty of infantryman, indirect fire crewman, and was promoted to pay grade E-3.

He served in Vietnam from 6 December 1966 to 13 May 1967. He was wounded on 30 January 1967 when he was hit by fragmentation from a hostile grenade. His wound was not considered serious. However, his tour was terminated and he was transported to Walter Reed Army Medical Center due to his being diagnosed as suffering from Sickle cell trait.

He completed his enlistment at Fort Meade, Maryland, and was honorably discharged at the expiration of his term of service on 25 April 1969. Other than the awards that a soldier receives for being stationed in Vietnam, the applicant was awarded the Purple Heart and the Combat Infantryman Badge.

The applicant enlisted as prior service on 5 April 1971, and immediately reenlisted on 21 July 1971 with a reenlistment option of station of choice Vietnam. The applicant was then shipped to Vietnam, but had his tour terminated early because he was not able to take the malaria medication required by soldiers assigned to Vietnam because of his sickle cell trait.

While stationed at Walter Reed Army Medical Center, on 11 July 1972 the applicant was involved in a civil incident for which he was charged with Murder II, Assault with Intent to Kill, and Armed with Pistol.

On 5 September 1972, a psychiatric summary was prepared as part of a sanity board hearing on the applicant. At that time the applicant stated that he shot two men after having visited a bar, when one of the men threatened to disfigure him and take sexual advantage of his wife if he did not steal drugs from the pharmacy at Fort McNair, where the applicant worked, and give the drugs to him. The




applicant stated that it was when the one man started talking about doing things to his wife that he pulled his gun and shot him. The psychiatrist recorded that the applicant “. . . acts very jealous towards his wife. He becomes quite angry when anyone, even a cousin, talks to her. He stated that he could kill someone if he felt they were going to harm his wife.” The psychiatrist concluded that the applicant had a paranoid personality, slight in severity, manifested by unwarranted jealousy regarding his relationship with his wife, with a lifelong history of similar personality disorders. Based on the lifelong nature of the condition, the psychiatrist opined that the personality disorder had existed prior to the applicant’s entry into the service. The psychiatrist stated that the applicant did not have any impairment for further military duty or for social and industrial adaptability. The psychiatrist cleared the applicant for any administrative or judicial proceedings deemed appropriate by either military or civil authorities.

In December 1972, the charges against the applicant were dismissed, and he was convicted of the lesser offense of manslaughter. On 5 January 1973, the applicant was sentenced to 4 to 12 years confinement. However, that sentence was suspended and the applicant was given 5 years probation. As a condition of his probation the applicant had to agree to remain in the Army.

On 26 January 1973, the applicant was given a separation physical examination.  He was determined medically qualified, with physical profile restrictions on his lower extremities due to knee pain when he knelt.

On 13 March 1973, a psychiatric evaluation was conducted on the applicant due to his attempting suicide by taking an overdose of methadone and threatening to jump off the 14^th Street Bridge in Washington, DC. At that time, diagnoses were made of situational neurotic depression, acute, severe, manifested by life-threatening suicidal behavior, suicidal ideation, feelings of hopelessness and despair, stress, marital difficulties, and passive aggressive personality traits. These conditions were not considered an impairment for either military duty or social and industrial adaptability, and were considered to have been incurred in line of duty. During that evaluation the applicant was also diagnosed as having a paranoid personality, moderate in severity, manifested by marked suspiciousness, denial, hostility and poor impulse control. This condition was also not considered an impairment for either military duty or social and industrial adaptability, but was not considered to have been incurred in line of duty; it was classified as having existed prior to the applicant’s entry in the military service. The examining psychiatrist recommended that the applicant be returned to duty and that he continue outpatient follow-up care.





On 21 June 1973, a board of officers was convened to consider whether the applicant should be discharged due to misconduct, civil conviction. The Board voted to retain the applicant in the Army.

On 24 July 1973, the convening authority for the board of officers forwarded the board proceedings to Department of the Army (HQDA) recommending that the applicant be discharged, contrary to the recommendation of the board of officers.  The convening authority stated that it was his opinion that the elimination board was unduly influenced by the civil court proceedings; that the applicant’s reassignment to another unit may have an adverse effect on the morale of the personnel of the gaining unit. The convening authority ended its endorsement to HQDA with the statement “Considering the nature and seriousness of the crime, it is recommended that [the applicant] be discharged from the US Army as recommended by his immediate commander.”

On 5 November 1973, HQDA approved the convening authority’s recommendation to discharge the applicant with a general discharge certificate, stating that the recommendation was approved “ . . . in view of the nature of the case itself, and the restriction imposed upon the Army by the conditions of [the applicant’s] probation . . .”

Accordingly, on 9 November 1973 the applicant was discharged under honorable conditions (a general discharge) by reason of Secretarial Authority.

On 30 May 1975, the Army Discharge Review Board (ADRB) held a personal appearance hearing to consider upgrading the applicant’s discharge. During that hearing, the applicant stated that the man he killed was a partner with his sister’s boyfriend selling illegal drugs. His sister’s boyfriend had been confined by civil authorities for his illegal activities. His sister’s boyfriend’s partner had broken into his mother’s house, took $55,000.00 which belonged to his sister’s boyfriend, and pistol-whipped the applicant’s mother. His sister’s boyfriend subsequently asked the applicant to get him drugs from the dispensary at Fort McNair, where the applicant was then working. The applicant contends that he refused that request. On the day he killed his sister’s boyfriend’s partner, that man had dragged a female friend of the applicant out of a car and beat her in front of a bar where the applicant was drinking. The applicant was then given a gun by a friend in the bar which he used to kill his sister’s boyfriend’s partner. The board unanimously voted to deny the applicant’s request.







Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board. Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition. For example, a noncommissioned officer who receives above average evaluation reports and passes Army Physical Fitness Tests (which have been modified to comply with the individual’s physical profile limitations) after the individual was diagnosed as having the medical disqualification would probably be found to be fit for duty.  The fact that the individual has a medically disqualifying condition does not mandate the person’s separation from the service. Fitness for duty, within the parameters of the individual’s grade and military specialty, is the determining factor in regards to separation. If the PEB determines that an individual is physically unfit, it recommends the percentage of disability to be awarded which, in turn, determines whether an individual will be discharged with severance pay or retired. An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.   In this regard, the Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career.

Army Regulation 600-8-1, then in effect, paragraph 41-8 states, in pertinent part, that if an existing prior to service (EPTS) condition was aggravated by military service, the finding will be in line of duty. If an EPTS condition is not aggravated by military service, the finding will be not in line of duty, EPTS. Specific findings of natural progress of the pre-existing injury or disease based on well established medical principles alone are enough to overcome the presumption of service aggravation.

Title 10, U.S. Code, chapter 61, Retirement or Separation for Physical Disability, provides for the medical retirement and for the discharge for physical unfitness, with severance pay, of soldiers who incur a physical disability in the line of duty while serving on active or inactive duty.

The condition now referred to as 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.

Army Regulation 635-200 dated July 1966, paragraph 13-26, states that the convening authority of an elimination board will not direct a discharge when a board of officers has recommended retention of a soldier. However, this paragraph provides that the convening authority may forward a request to separate a soldier to HQDA when an elimination board recommends retention of a soldier and the convening authority believes that the soldier’s separation is warranted and in the Army’s best interest.

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

1. The most significant medical conditions the applicant was diagnosed as having while on active duty were knee pain and sickle cell anemia, neither of which were found medically unacceptable for retention and separation. Also, none of the psychiatric conditions which the applicant was diagnosed as having while on active duty were considered impairments for either military duty or social and industrial adaptability. As such, the applicant was never determined to be medically disqualified for retention.

2. There is no evidence in the applicant’s records that he was diagnosed as suffering from PTSD. However, that is not surprising in that PTSD did not exist as a diagnosis until 1980, 7 years after the applicant was discharged.

3. In addition, the applicant’s primary, non-transient mental condition, paranoid personality, was determined to have existed prior to his entry in the Army. As such, it did not constitute grounds for a medical discharge even if it had been determined to be medically disqualifying and physically unfitting.

4. Without a finding of medical disqualification, there was no basis to refer the applicant to a PEB or, therefore, to consider him for a medical discharge.

5. This Board also considered the appropriateness of discharging the applicant when the elimination board recommended his retention. In this regard, it would be reasonable to presume that the convening authority considered the violent nature of the offense committed by the applicant and the fact that he was under civil restraint (probation). A soldier under civil restraint could not be deployed in the event of war or national emergency without the permission of the court. As




such, the Board concludes that the decision of the convening authority to forward the elimination board to HQDA requesting that the applicant be discharged, and the approval of that request by HQDA, was appropriate for the circumstances.

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

__slp____ ___sk___ ___eja __ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001059949
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020319
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.	105.04
2.
3.
4.
5.
6.