RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 26 February 2004
         DOCKET NUMBER: AR2003091335


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Ms. Mae M. Bullock		Member
Mr. John T. Meixell		Member

         The applicant and counsel if any, did not appear before the Board.

         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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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests that his bad conduct discharge be upgraded in order to receive Veterans Administration (VA) benefits.

2. The applicant states that he volunteered for the Gulf War and never had any infractions until he got in trouble. He believes that Post Traumatic Stress Disorder (PTSD) caused his infractions. He also states that his discharge has ruined his career and has made it impossible for him to obtain decent employment. He was an outstanding soldier prior to Desert Storm. He further states that it has been difficult for the past 10 years and it seems that there will be no relief unless his discharge is upgraded. He completed 22 months of his 3-year sentence; however, he still feels confined. He indeed deserved to be punished but now feels that it is never going to end. He has been diagnosed with PTSD, had a brain tumor removed, and has other related health problems that he believed stemmed from the Gulf War. He now needs his discharge upgraded in order to obtain medical assistance from VA.

3. The applicant provides a copy of a letter from VA, dated 30 April 2002.

CONSIDERATION OF EVIDENCE:

1. The applicant’s military records show he enlisted on 6 November 1987, as an armor crewman. He served in Korea from 7 March 1988 to 6 March 1989. He was promoted to specialist (SPC) on 1 December 1988.

2. The applicant served in Operation Desert Shield/Storm from 16 February to 30 April 1991.

3. In accordance with his pleas he was found guilty by a general court-martial on 10 January 1992, of assaulting a noncommissioned officer and another soldier and communicating a threat to another service member. His sentence consisted of a forfeiture of all pay and allowances, reduction to the pay grade E-1, confinement for 3 years, and a bad conduct discharge. His sentence was approved on 25 February 1992.

4. On 30 June 1992, the Army Court of Military Review affirmed the findings and sentence as approved by the convening authority.

5. On 2 October 1993, the applicant was discharged from the Army pursuant to the sentence of a general court-martial and was issued a bad conduct discharge.



6. The applicant applied to the Army Discharge Review Board (ADRB) on 3 April 2003. However, his case was ineligible for review by the ADRB due to his conviction by a general court-martial.

7. The applicant provided a copy of a letter from VA that shows that he requested entitlements and was denied based on his bad conduct discharge.

8. Title 10, U. S. Code, section 1552(f) states that, with respect to records of courts-martial tried or reviewed under the Uniform Code of Military Justice, the Board's action may extend only to action on the sentence of a court-martial for purposes of clemency.

9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 3-11 of that regulation provides that a soldier will be given a bad conduct discharge pursuant only to an approved sentence of a general or special court-martial. The appellate review must be completed and the affirmed sentence duly executed.

10. Army Regulation 635-200 governs the separation of enlisted personnel. In pertinent part, it states that an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the soldier’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. A general discharge is a separation from the Army under honorable conditions. It is issued to a soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

11. 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 psychiatrists have only categorized PTSD 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.





12. 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.

13. The Manual for Courts-Martial, R.C.M. 916, provides that it is an affirmative defense to any offense that, at the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his or her acts. Mental disease or defect does not otherwise constitute a defense. The accused is presumed to have been mentally responsible at the time of the alleged offense. This presumption continues until the accused establishes, by clear and convincing evidence, that he or she was not mentally responsible at the time of the alleged offense.

DISCUSSION AND CONCLUSIONS:

1. The applicant has provided no evidence to show that his discharge was unjust. He also has not provided evidence sufficient to mitigate the character of his discharge.

2. Trial by court-martial was warranted by the gravity of the offenses charged.
Conviction and discharge were effected in accordance with applicable law and regulation.

3. Consideration has been given to the applicant's contentions; however, there is no evidence, and the applicant has provided no evidence, to show that he was diagnosed with PTSD prior to his discharge or to show that PTSD caused his infractions.

4. The applicant has failed to present evidence that he experienced readjustment problems or PTSD during his period of service. While the applicant contends that he suffered from what would later be diagnosed a PTSD, there is no indication that he was unable to distinguish right from wrong and adhere to the right. As such, even if he had PTSD while he was on active duty, it would not constitute a defense for his acts of misconduct.



BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

___ao___ __mb____ __jm____ DENY APPLICATION

The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




                  ___Arthur A. Omartian__
                  CHAIRPERSON

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INDEX

CASE ID	AR2003091335
SUFFIX
RECON
DATE BOARDED	20040226
TYPE OF DISCHARGE	BCD
DATE OF DISCHARGE	19931029
DISCHARGE AUTHORITY	AR2003091335
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	360
2.
3.
4.
5.
6.