MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
                                   
        

         BOARD DATE: 12 March 2002
         DOCKET NUMBER: AR2001061926


         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. W. W. Osborn, Jr.		Analyst

The following members, a quorum, were present:

Ms. Irene N. Wheelwright		Chairperson
Mr. Raymond J. Wagner		Member
Ms. Gail J. Wire		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: Reconsideration of his earlier appeal to correct his military records by upgrading his discharge. Additionally, the applicant requests award of the Purple Heart.

APPLICANT STATES: In effect, that, at the time he became absent without leave (AWOL) he was suffering from post traumatic stress disorder (PTSD) as a result of his service in Vietnam. He also states that he suffered a concussion from an enemy mortar round, that he was shot at numerous times in various situations, was exposed to Agent Orange and served as a door gunner. He also thinks that his discharge should be upgraded because he accomplished many meritorious acts while engaged in civil action projects, because he earned an Army Commendation Medal and two Good Conduct Medals, because he had a good record except for one isolated incident, because he has been a good citizen since discharge. He also thinks that the punishment he received was too severe by today’s standards and believes that he should have been given a medical discharge because of PTSD and his back injury. In support of his application he submits a psychological readjustment questionnaire.

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 (AR2001054099) on 17 April 2001.

The applicant’s submission s are new argument that requires Board consideration.

As noted in the original decisional document the applicant completed his original 3-year enlistment and was separated with an honorable characterization of service in January 1972. He reenlisted in April 1973 and was separated with an honorable discharge in April 1976. He reenlisted in the Regular Army on 22 September 1976 and, on 5 October 1976, he commenced the first of two lengthy AWOLs that resulted in his voluntary separation for the good of the service in lieu of trial by court-martial. He had 975 days lost time.

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 that 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.

Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties 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.

Paragraph 4-1 of the regulation provides that a member who is under investigation for or charged with an offense for which he could be dismissed or given a punitive discharge may not be referred for disability processing. However, if the officer exercising appropriate court-martial jurisdiction dismisses the charge or refers it for trial to a court-martial that cannot adjudge such a sentence, the case may be referred for disability processing. When forwarded, the records of such a case must contain a copy of the action signed by the court-martial authority that made the decision.

Army Regulation 600-8-22 provides, in pertinent part, that the Purple Heart is awarded for a wound sustained while in action against an enemy or as a result of hostile action. Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by a medical officer, and the medical treatment must have been made a matter of official record.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR. It provides that, if a request for 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 that was not in the record at the time of the Board’s prior consideration. This includes but is not limited to any facts or arguments as to why relief should be granted. The staff of the Board is authorized to determine whether or not such evidence has been submitted.

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The regulation provides further guidance for reconsideration requests that are received more than one 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. 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. The applicant’s overall record of service has been considered but it does not outweigh the offenses for which he voluntarily requested discharge and which characterized his final period of service.

3. Contrary to the applicant’s contention that the discharge is too harsh by today’s standards, the regulatory requirements governing voluntary separation for the good of the service in lieu of trial by court-martial are essentially unchanged. There is no evidence to substantiate the opinion that, currently, he would not receive an other than honorable discharge for AWOLs totaling almost 3 years.

4. There is no available evidence to substantiate the applicant’s claim of post- service good citizenship that is so meritorious as to outweigh the misconduct of record.

5. The applicant's continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation. Furthermore he was under charges and, absent positive action by the officer exercising general court-martial convening authority, he was not eligible for disability processing.

6. There is no substantiating evidence that the applicant was wounded in action or is eligible for award of the Purple Heart.

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7. 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.

8. 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 __ ___RJW_ ___GJW_ DENY APPLICATION



         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2001061926
SUFFIX
RECON	This applies only to ADRB
DATE BOARDED	20020312
TYPE OF DISCHARGE	UOTHC
DATE OF DISCHARGE	199790727
DISCHARGE AUTHORITY	AR625-200, chapter 10
DISCHARGE REASON	A70.00
BOARD DECISION
REVIEW AUTHORITY
ISSUES 1.	A91.01
2.	A92.00
3.	A92.21
4.	A94.13
5.
6.