RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  08 April 2008
	DOCKET NUMBER:  AR20070016322 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Dean L. Turnbull

Analyst


The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. David K. Haasenritter

Member

Mr. Edward E. Montgomery

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, through counsel reconsideration of the Board's denial of his request to change his general discharge to a disability retirement based on Post-Traumatic Stress Disorder (PTSD).  He also requests the following three alternatives:

a.  In the first alternative, he requests that his general discharge be voided and that he be retroactively place on the Army permanent disability retired list with the appropriate disability rating due to PTSD and other disabilities with back pay.  He also requests that orders be issued to show his PTSD resulted from a combat related injury as defined in Title 10 United States Code (U.S.C.) 204;

b.  In the second alternative, he requests that his general discharge be voided; that he be issued a medical discharge with the appropriate rating for PTSD and other disabilities; and award of severance pay with orders issued to show the PTSD resulted from a combat related injury as defined in Title 10 U.S.C. 204; and

c.  In the third alternative, he requests that his general discharge be voided; that his records be corrected to show he was issued an honorable discharge on 23 September 1969 for completion of his 3-year enlistment and award of back pay and allowances. 

2.  The applicant states through counsel, in effect, that his general discharge should be voided and he should be honorably discharged with a disability retirement and that he should be awarded back pay and allowances.

3.  The applicant provides two letters from Counsel dated 4 October  
2007 and 4 January 2008 and two character statements. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the Board reconsider the applicant's request to change his general discharge to honorable with disability retirement based on PTSD.

2.  Counsel states that the applicant is currently rated 70 percent disabled by the Department of Veterans Affairs (DVA) for PTSD.  He has a combined rating of 100 percent disabled and he is classified as unemployable.  Counsel states that the applicant forwarded a request to the DVA to have his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) corrected based on service-connected disability for PTSD due to his service in the Republic of Vietnam.  The DVA forwarded the request to the Army Board for Correction of Military Records (ABCMR).  However, the ABCMR denied the case for a lack of support to waive the 3-year limitation period and a lack of adequate evidence to make an accurate decision.  The ABCMR determined the available documentation showed the applicant had been denied PTSD service connection by the DVA, and that after his service in the Republic of Vietnam and prior to his discharge in 1968, he had not reported positive symptoms consistent with features of PTSD (night sweats, shortness of breath, depression or excessive worry, and nervous troubles of any sort).  

3.  Counsel explains that during the cursory psychological examination given to the applicant when he was being separated, these symptoms were ignored.  Instead, the applicant was diagnosed with sociopathic personality which then led to his discharge for unsuitability.  

4.  Counsel continues that the ABCMR was not provided information concerning the effect the applicant’s discharge had on his life after separation, what he suffered through, or his eventual diagnosis of PTSD by the DVA.

5.  Counsel explains the applicant’s criminal record prior to his entry on active duty was due to racial incidents and describes the racial atrocities which the applicant was subjected to prior to enlistment.

6.  Counsel then describes the stress the applicant was subjected to due to his knee problems, which stemmed from a car accident which he had prior to his entry on active duty.  Counsel argues that the nonjudicial punishments the applicant received are unfair when the circumstances which formed the bases for them are examined.  Counsel chronicles the combat in which the applicant actively participated.  Counsel discusses the applicant’s re-injury to his knee, the racial climate in Vietnam during the time the applicant was assigned to Vietnam, and the applicant’s drug addiction.

7.  Counsel then examines the applicant’s military medical records and argues that the results of these examinations would require the applicant to be considered by a medical board which, counsel contends, would have led to the applicant’s placement on the Retired List for physical unfitness.

8.  Counsel then describes the applicant's post service discharge activities and the DVA appeals between 1968 and 1997.  Counsel contends the applicant's life experiences after discharge led to his drug addiction, job instability, and physical violence against his family.  The applicant was not born a deviant sociopath or psychopath, rather, he was a war casualty of Vietnam.

9.  Counsel also describe the psychiatric examination of 1968, which listed four arrests even though there were only two misdemeanor offenses, and the term "arrested for offenses" to imply criminal activities.  Counsel argues that this, and similar language is indicative of the psychiatrist selling a product.  Counsel continues by stating that due to rocket attacks, combat actions, and ambushes, the applicant was in a constant state of fear and terror and that due to these factors combined with chronic knee and back pain the applicant was driven to escape his overwhelming anxieties by using drugs at an off-limits bar.

10.  Counsel continues by stating the applicant's separation medical examination taken on 8 October 1968, shows four mental health symptoms associated with PTSD, such as soaking sweats (night sweats), shortness of breath, depression or excessive worry, and nervous trouble of any sort.  This examination also shows the applicant had a history of recurrent back pain, a brace for back support and that he had a P3 physical profile.

11.  Counsel cites Army Regulation 40-501, paragraph 3-39 stating the applicant would have required a medical evaluation board (MEBD) referral because of his back strain that involved chronic pain of the lumbosacral spine.  Counsel also cites Army Regulation 635-212, paragraph 9, which states a MEBD was required even though the applicant was being recommended for unsuitability.  Only those cases of adverse discharge due to misconduct require a decision whether the medical condition was a substantial contributing factor in the misconduct.

12.  Counsel implies that a diagnosis as a sociopathic personality would not be sustainable today under the standards of Diagnostic and Statistical Manual of Mental Disorders (DSM) III (1987) or DSM-IV (1994).  DSM IV specifies the individual must exhibit evidence of conduct disorder with onset before age 15 to warrant an ASPD diagnosis as an adult.  Currently, a diagnosis for conduct disorder under DMS IV requires, before age 15, at least three specific conduct disorder behaviors present for at least 6 months.  Also, a conduct disorder requires a persistent history of multiple problem behaviors.  DSM IV relies on studies reporting on the link between adolescent conduct disorder and later adult personality disorder.

13.  Counsel continues that while PTSD was not recognized until 1980, the physician failed to comment whether the known temporary condition, anxiety neurosis, was suggested.  The applicant filed a claim with the DVA for personality disorder but it was denied.  It was only after the fortuitous DSM-III recognition of PTSD in 1980, followed by revision III-R and IV, that offered a way to begin to understand and distinguish the applicant's mental health claim from personality disorder. 

14.  Counsel continues that the applicant's reason for discharge was apathy; however, the psychiatric examination concluded the disciplinary actions were caused by the ingrained, character defect of a sociopathic personality.  Counsel quoted Rew v. Ward, 402 F. Supp. 331, 340-341 (D.C.N.M. 1975) "although the applicant's DD Form 214 for unsuitability did not reveal underlying reasons and narrative summary, the substantial possibility that VA and future government employers would obtain access violated his liberty interest under Constitution without hearing."  

15.  Counsel continues the commander could not bypass the constraints that a personality disorder imposes as a mitigating factor to issue an Honorable versus General service characterization based on 1978 DoD Nelson Memorandum.  The Nelson Memorandum, dated 8 November 1978, states that every service member discharged for unsuitability due to personality disorder must be given an honorable discharge unless convicted by a General Court-Martial or more than one Special Court-Martial.

16.  Counsel also cites an ABCMR case in which relief was recommended to change the characterization to fully honorable discharge.

17.  Counsel provides on behalf of the applicant a 31 page legal brief with exhibits A to P.  Exhibits A to P provides a copy of ABCMR's Record of Proceedings, DVA's letter dated 7 September 2006, Army Regulation  
635-212 (Personnel Separation) dated 15 July 1966, Health Record, DVA hospital summary with decision ratings, letters from two Psychologists dated between November 1980 and 18 March 1982, and a Board of Veterans Appeals' claim for veterans benefits dated 12 November 1985.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2006006179, on  
9 November 2006.

2.  In the original decision the ABCMR found that in the absence of evidence to the contrary, the applicant was properly discharged from the Army.  The evidence provided by the applicant shows he suffers from symptoms that could be caused by PTSD.  However, there is no convincing evidence that they were service-connected.

3.  The applicant has provided new evidence which requires that his case be reconsidered by the ABCMR.

4.  The applicant's military personnel records do not contain evidence to show he was evaluated and diagnosed as having any stressors associated with PTSD at the time of his discharge.  He received several non-judicial punishments (NJP) for offenses including missing formation, going to an off-limits bar in Vietnam, possession of illegal drugs, and being absent without leave (AWOL).  These documents show he used poor judgment, was not committed to any productive goals, and was completely unmotivated for further service.  

5.  His records also show he was treated for bone chips in his knees and for lower back pain on several occasions.  On 23 March 1968, the 71st Evacuation Hospital (SMBL) in Vietnam granted the applicant a permanent profile for his lower extremities and he was placed on limited duty for arthritis in his knees.  His assignment restrictions and limitations involved no crawling, stooping, running, jumping, prolonged standing or marching.

6.  On 28 October 1968, the applicant was evaluated by a psychiatric clinic with a discharge diagnosis of sociopathic personality with passive features.  There is no other record of the applicant being examined or treated for psychiatric disorders while in the Regular Army.  The psychiatrist believed the applicant would not adjust to military service and that further rehabilitative efforts would probably be nonproductive.  The psychiatrist determined that the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and had the mental capacity to understand and participate in board proceedings.  The applicant was discharged on 5 November 1968, under the provisions of Army Regulation 635-212 for unsuitability.

7.  The new evidence he submitted shows that his original DVA claim for an appeal for acquired psychiatric disorder, including PTSD dated 12 November 1985 was denied because it was not proven that his acquired psychiatric disorder, including PTSD was service-connected and he did not meet the diagnostic criteria for PTSD stress disorder.  It concluded that the acquired psychiatric disorder, including PTSD, was not incurred in or aggravated by service.  

8.  On 27 September 1989, the applicant reopened his claim for service-connection disability for PTSD and submitted a report from his doctor and the Department of Labor.  The report from the Department of Labor indicated the applicant was awarded compensation for lost wages due to PTSD which occurred on 27 April 1980 and was considered an employment injury.  Also, the report from his doctor indicated the applicant's appointment with the Post Office resulted in the development of PTSD.

9.  On 28 November 1989, the DVA conducted an examination which shows a diagnosis of generalized anxiety disorder and personality disorder.  No diagnosis of PTSD was made.  On 8 December 1989, the applicant's rating decision for service-connection disability for PTSD was confirmed and his appeal was denied. On 22 January 1990, the applicant submitted a Notice of Disagreement.

10.  The applicant's records show that adjudicative actions between 1 August 1994 and 20 January 1995, when he submitted a claim for service-connected disability for PTSD was received by the DVA and a determination was made by the rating board that the evidence of record did not warrant the granting of the benefits he sought and therefore he was denied.  Between 3 August 1985 and 
21 August 1995, a substantive appeal was received with additional evidence and the claim was considered based on all the evidence of record but the rating board did not warrant a grant of the benefits he sought.

11.  On 16 July 1997, the DVA, Board of Veterans' Appeal (BVA) reviewed new and material evidence from a chronology of events (involving his unit of assignment) the applicant submitted, which provides several hostile actions by the enemy in the Republic of Vietnam to reopen his claim for service-connection for PTSD.  The BVA concluded that service-connection for PTSD has been established as directly related to military service and granted 70 percent disability effective 1 August 1994.

12.  Army Regulation 635-200 (Personnel Separation) was revised on  
1 December 1976, following settlement of a civil suit.  Thereafter, the type of discharge and the character of service were to be determined solely by the individual's military record during the current enlistment.  Further, any separation for unsuitability, based on personality disorder must include a diagnosis of a personality disorder made by a physician trained in psychiatry.  In connection with these changes, a Department of the Army Memorandum dated 14 January 1977, and better known as the Brotzman Memorandum, was promulgated.  It required retroactive application of revised policies, attitudes and changes in reviewing applications for upgrade of discharges based on personality disorders.  A second memorandum, dated 8 February 1978, and better known as the Nelson Memorandum, expanded the review policy and specified that the presence of a personality disorder diagnosis would justify upgrade of a discharge to fully honorable except in cases where there are "clear and demonstrable reasons" why a fully honorable discharge should not be given.  Conviction by general court-martial or by more than one special court-martial was determined to be "clear and demonstrable reasons" which would justify a less than fully honorable discharge.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), then in effect, provided 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 MEBD.  Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  

14.  Army Regulation 635-40, states that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  The overall effect of all disabilities present in an individual whose physical fitness is under evaluation must be considered both from the standpoint of how the disabilities affect the individual’s performance, and requirements which may be imposed on the Army to maintain and protect him during future duty assignments.  All relevant evidence must be considered in evaluating the fitness of a member.  When a member is referred for physical evaluation, evaluations of his performance of duty by his supervisors may provide better evidence than a clinical estimate by a physician of the member’s physical ability to perform the duties of his office, grade, rank, or rating until the time he was referred for physical evaluation.  Thus, if evidence establishes that the member adequately performed the normal duties of his office, grade, rank or rating until the time he was referred for physical evaluation, he might be considered fit for duty, even though medical evidence indicates his physical ability to perform such duties may be questionable. 

15.  PTSD, an anxiety disorder, was not recognized as a psychiatric disorder until 1980 with the publishing of the 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. 

16.  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 AND CONCLUSIONS:

1.  The applicant contends, through counsel that his general discharge should be changed to disability retirement based on PTSD.  He also requests three alternatives to be considered; that his general discharge be voided and that he be retroactively placed on the Army’s permanent disability retired list due to PTSD; that his general discharge be voided and that he be medically discharged with an appropriate rating for PTSD; or that his general discharge be voided and he be honorably discharged for completion of his 3-year enlistment with back pay and allowances.

2.  Although the BVA accepted the applicant’s chronology of events that involved his service in the Republic of Vietnam and then granted him a 70 percent disability rating effective 1 August 1994 (26 years later), there is no evidence that shows he was treated for any PTSD symptoms while he was on active duty.  

3.  To the contrary, in the process of the applicant’s separation, he was determined to be medically qualified for separation by a psychiatrist.  While the diagnosis of PTSD did not exist at the time, the diagnoses of psychosis, psychoneurosis, and neurological disorders was outlined in Army Regulation 
40-501 which was in effect at the time of his separation.  It is reasonable to presume that, if the applicant had exhibited any symptoms which would have indicated he was medically disqualified under the standards at the time, the psychiatrist would have so stated and recommended he be considered by an MEBD.  


4.  While the applicant listed depression or excessive worry and nervous trouble of sort on his separation physical examination, these conditions were considered by the physician examining him.  As for the applicant’s chronic back condition and Osgood-Schlatters Disease, both of those conditions were considered during the applicant’s separation physical examination.  While the applicant was given physical profile limitations for those conditions, he was determined medically qualified for separation.  This was, and is, standard operating procedure for Soldiers with remedial or relatively minor medical conditions.  If the physical disability system was otherwise, many of our career Soldiers would not be able to qualify for retired pay for years of service because they would be separated prior to achieving 20 years of service due to medical conditions which, although disqualifying for procurement (enlistment), would not be disqualifying for retention or separation.

5.  Since there is no evidence or indication that the applicant had a condition which was medically disqualifying for retention, his physical condition would not have warranted consideration by a MEBD.  Without an MEBD, there would have been no basis for referring him to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge or retired for physical unfitness.

6.  The applicant had several NJPs for offenses including missing formation, going to an off-limits bar in Vietnam, possession of illegal drugs, and AWOL.  He used poor judgment, was not committed to any productive goals, and was completely unmotivated for further service.  

7.  As such, the applicant’s discharge under the provisions of Army Regulation 635-212 for unsuitability due to apathy, a defective attitude, and inability to expend efforts constructively was appropriate and there is no reason to change it.  As such, there is no basis to consider counsel's three alternatives to the applicant’s initial request.

8.  However, counsel is correct when he noted that Nelson Memorandum, dated 8 November 1978, states every service member discharged for unsuitability due to personality disorder must be given an honorable discharge unless convicted by a General Court-Martial or more than one Special Court-Martial.  However, since the applicant was discharged under the provisions of Army Regulation  
635-212 for unsuitability-Apathy, defective attitudes and inability to expend efforts constructively the Nelson Memorandum, dated 8 November 1978 does not apply to his case.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__LDS __  __DKH__  __EEM__   DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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 to amend the decision of the ABCMR set forth in Docket Number AR20060006179, dated 9 November 2006.




____Linda D. Simmons__
          CHAIRPERSON