MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 19 March 2002
         DOCKET NUMBER: AR2001064974

         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
Mrs. Nancy Amos		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 general discharge be upgraded to fully honorable and that his rank be restored. Later, he requested that his administrative discharge be changed to a medical discharge and that he receive back pay and allowances retroactive to 9 January 1969.

APPLICANT STATES: That he was suffering from severe post-traumatic stress disorder (PTSD) and they failed to treat him. He was 17 years old when he enlisted and he was an excellent soldier until he returned from Vietnam. He was a combat medic in Vietnam. He was wounded and received the Bronze Star Medal with V device. He was in many battles and many men died in his arms. After he arrived at Fort Riley, KS, he suffered from flashbacks, he had nightmares, he constantly drank, and he attempted suicide. He still has nightmares and flashbacks. He believes he is entitled the relief requested due to the Army misdiagnosing him. He provides extracted portions of his separation packet as supporting evidence.

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

He was born on 3 December 1947. He enlisted in the Regular Army on 1 November 1965. He completed basic combat training and was awarded military occupational specialty 91B (Medical Specialist). He was assigned to Headquarters and Headquarters Company, 1^st Battalion, 8^th Infantry, 4^th Infantry Division, Vietnam on or about 15 September 1966. He was promoted to Sergeant, E-5 on 28 February 1967 (and on an unknown date laterally appointed to Specialist Five, E-5). He was awarded the Bronze Star Medal with V device for action on 22 March 1967 and was awarded the Purple Heart for wounds received on this date. He departed Vietnam on 15 August 1967 and was reassigned to Fort Riley, KS.

On 4 January 1968, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for being absent without leave (AWOL) from 12 November to on or about 7 December 1967. His punishment was a reduction to Specialist Four, E-4.

On 16 January 1968, the applicant was treated for unknown symptoms and diagnosed with an acute depressive reaction manifested by rage, crying, and suicidal thoughts. On 18 January 1968, he was treated for abdominal pain. An examination several days earlier showed he had a duodenal ulcer. On 6 April 1968, he was diagnosed as having an anxiety reaction, chronic, mild, and manifested by multiple somatic complaints.

On 5 August 1968, the applicant underwent a psychiatric evaluation. He was diagnosed as having emotional instability, chronic, manifested by excitability and ineffectivness in the fact of minor stress, immaturity, resentment of authority, and poor judgment. It was determined that the applicant could not be rehabilitated as the longstanding character and behavioral disorder described would tend to exist permanently. He was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and to have the mental capacity to understand and participate in board proceedings. It was recommended he be administratively separated under the provisions of Army Regulation 635-212.

On 19 August 1968, the applicant was convicted by a special court-martial of being AWOL from 15 May to 17 July 1968. He was sentenced to forfeit $106.00 pay for 3 months and to be reduced to Private, E-2.

On or about 11 December 1968, the applicant’s company commander initiated separation action against him under the provisions of Army Regulation 635-212 for unsuitability. The applicant was advised by counsel of the basis for the contemplated action. He waived his right to consideration of his case by a board of officers; waived personal appearance before a board; elected not to make a statement on his behalf; and waived representation by counsel.

On 27 December 1968, the appropriate authority approved the recommendation and directed the applicant be issued a General Discharge Certificate.

On 9 January 1969, the applicant was discharged with a general discharge under honorable conditions, in the pay grade E-2, under the provisions of Army Regulation 635-212 for unsuitability. He had completed 2 years, 9 months, and 10 days of creditable active service and had 149 days of lost time.

On 16 April 1973, the Department of Veterans Affairs (VA) diagnosed the applicant with generalized anxiety disorder, duodenal ulcer, and left wrist facture and wrist joint replacement. The VA noted that he was competent for VA purposes. His psychosocial adaptability was not impaired but his industrial adaptability was quite limited because of his physical and emotional disability.

In July 1985, the VA noted that the applicant was 30 percent service-connected for duodenal ulcer and SWF (acronym unknown). Data from an interview and psychological testing suggested that he was seriously impaired psychiatrically and that diagnostic impressions of PTSD, chronic and Major Depression, recurrent, with Melancholia, were appropriate. It was suggested that intensive inpatient treatment of his combat-related adjustment difficulties would be very beneficial for him.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel. The regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unsuitability.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. The regulation defines “physically unfit” as unfitness due to physical disability. The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.

Title 38, U. S. 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.

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. 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. The applicant has failed to submit evidence that would satisfy this requirement.

2. The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3. The Board notes that the applicant’s 5 August 1968 psychiatric evaluation found him to be mentally responsible and able to distinguish right from wrong and to adhere to the right. There is no evidence to show that he was not aware that going AWOL was contrary to military discipline and subject to penalty.

4. The Board notes that in 1973 the VA found the applicant was competent for VA purposes and that his psychosocial adaptability was not impaired. In 1985 the VA noted that intensive inpatient treatment of his combat-related adjustment difficulties would be very beneficial for him but did not state that he was mentally incompetent.

5. The Board is cognizant of the applicant’s commendable service in Vietnam but determines that, as long as he was psychiatrically determined to be able to distinguish right from wrong, it is insufficient reason to upgrade his discharge to fully honorable or to restore his rank. As there is no evidence to show that he was unable to perform his duties except for misconduct not due to mental incompetency, it would not be appropriate to show he received a medical discharge. It would not be appropriate to pay him any back pay and allowances.

6. The rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. The VA is not required by law to determine medical unfitness for further military service in awarding a disability rating, only that a 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.

7. 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	AR2001064974
SUFFIX
RECON
DATE BOARDED	20020319
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	19680109
DISCHARGE AUTHORITY	AR 635-212
DISCHARGE REASON	A40.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.