MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 24 SEPTEMBER 2002
         DOCKET NUMBER: AR2002072677

         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. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Kenneth W. Lapin		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)

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APPLICANT REQUESTS: In effect, the applicant requests physical disability retirement or separation due to post traumatic stress disorder (PTSD).

APPLICANT STATES: That he has sent medical documents to the Army Reserve Personnel Command at St. Louis relative to his PTSD.

He states that his undesirable discharge was unfair because it was based upon one incident during 20 months of service. He had no other disciplinary problems.
The applicant states that his defense counsel was inadequate, ineffective, and unprofessional, and that the military judge erred in his instructions.

The applicant states that he served in Vietnam and witnessed several incidents where soldiers where killed. He was shot at on numerous occasions while guarding his company’s perimeter. Those experiences still haunt him.

He is taking psychotic medications. He had a problem with thought process and communication, suffers memory loss, bouts of near continuous panic or depression affecting his ability to function. He is currently a mental health patient in the Jamestown facility and under medication. He submits a copy of a 21 January 2002 form consenting to the use of antipsychotic medications.

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

The applicant enlisted in the Army for three years on 21 July 1970, completed training, and in October 1970 was assigned to Fort Carson, Colorado. On 17 June 1971 the applicant received nonjudicial punishment under Article 15, UCMJ, for AWOL from 1 June 1971 to 15 June 1971. In April 1971 the applicant was assigned to the 596^th Maintenance Company in Vietnam as a vehicle repairman.

On 9 July 1971 the applicant received nonjudicial punishment under Article 15, UCMJ, for being absent from his place of duty. On 31 January 1972 he received nonjudicial punishment for being absent from his place of duty.

On 2 January 1972 the applicant was “flagged” because he was pending action by a special court-martial. On that same date he was “flagged” because he was pending elimination from the service under the provisions of Army Regulation 635-212.

On 11 February 1972 the applicant’s commanding officer notified the applicant that he was initiating proceedings to discharge the applicant under the provisions of Army Regulation 635-212 for unfitness, with an undesirable discharge. He stated that the reason for his action was the applicant’s continuous pattern of being absent from his place of work.
The applicant consulted with counsel and stated that he understood the basis for the contemplated action. He waived an appearance before a board of officers and declined to submit statements in his own behalf. He stated that he understood the nature and consequences of the undesirable discharge that he might receive.

The applicant’s commanding officer recommended to the separation authority that the applicant be discharged. He recommended discharge because of the applicant’s habits and traits of character, which were manifested by frequent incidents of a discreditable nature with military authorities. He stated that the applicant had been assigned to various duties commensurate with his training and ability, had served under different officers and NCOs, and that his military superiors agreed that further rehabilitative efforts would be useless.

A 13 March 1972 report of mental status evaluation indicates that the applicant was mentally responsible, able to distinguish right from wrong and adhere to the right, and that he had the mental capacity to understand and participate in board proceedings. He met the medical standards for retention in the Army.

A 13 March 1972 report of medical examination shows that the applicant was medically qualified for discharge with a physical profile serial of 1 1 1 2 1 1.

On 30 March 1972 the separation authority approved the recommendation and stated that the applicant would be furnished an Undesirable Discharge Certificate.

The applicant returned to the United States and was discharged at Oakland, California on 8 April 1972. He had 1 year, 8 months, and 18 days of service.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel. Paragraph 6 of the regulation provided, in
pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities. When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

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 office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 40-501 provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

Army Regulation 635-40, then in effect, 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.

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 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.

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 applicant declined counsel, waived his right to a hearing before a board of officers, and acknowledged that he understood the effects of an undesirable discharge. 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. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

2. The applicant’s medical records do not indicate any medical condition incurred while entitled to receive basic pay which that was so severe as to render the applicant medically unfit for retention on active duty. At the time of the separation physical examination, competent medical authority determined that the applicant was then medically fit for retention or appropriate separation. Accordingly, the applicant was separated from active duty for reasons other than physical disability. Furthermore, his 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.

3. The applicant did not have any medically unfitting disability which required physical disability processing. Therefore, there is no basis for physical disability retirement or separation. The applicant’s claim that he now has PTSD because of his experiences in Vietnam is not supported by any evidence in his record, nor has the applicant submitted any evidence thereof. His claim is without merit.

4. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

5. 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 that requirement.

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

__AAO __ __KWL__ __DPH __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002072677
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020924
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.	108.00
2.
3.
4.
5.
6.