IN THE CASE OF:	  

		BOARD DATE:  24 January 2013

		DOCKET NUMBER:  AR20120007109 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reconsideration of his previous request to upgrade his discharge and a new request (issue) in which he request that he be retired by reason of physical disability.

2.  The applicant states, in effect, that he was unjustly discharged for minor acts of misconduct which were the direct result of his post-traumatic stress disorder (PTSD), a condition for which he should have been given a disability retirement.

3.  The applicant provides statements from family members regarding his mental health and a letter from the county sheriff.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant’s request for reconsideration be considered based upon a faxed application in order to meet the 1-year dead-line for reconsideration and that his new request for disability retirement be favorably considered.

2.  Counsel states, in effect, that the applicant submits new evidence and issues such as documents from the “Virtual Wall” regarding three of the applicant’s friends that died in Vietnam, letters from family members regarding his mental changes, a letter from the county sheriff.  His counsel also states that under current standards the applicant would have been processed under the Physical Disability Evaluation System (PDES) for PTSD and Traumatic Brain Injury (TBI).  Counsel also request that previously submitted psychological evaluations be  considered. 

3.  Counsel provides a five-page brief explaining her position.

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 AR20100020403 on 22 February 2011 and Docket Number AR20090005899 on 25 August 2009.

2.  The applicant provides a new argument that requires the Board's review as his request was received on 18 February 2012.

3.  During the previous reviews of the case, the Board found the evidence of record did not support the applicant’s contention that under current standards he would not have received the type of discharge he did.  The Board also found no evidence to support the applicant’s claim that he suffered from psychiatric problems (severe PTSD) related to his two tours in the RVN and that this impaired his ability to serve and was responsible for his acts of misconduct.  

4.  The applicant’s record shows he enlisted in the Regular Army on 30 October 1967, and he was trained in and awarded military occupational specialty (MOS) 05C (Radio/Teletype Operator) on 31 May 1968.  He was reclassified into and awarded MOS 57H (Cargo Handler) on 24 August 1968, after his arrival in Vietnam.  He served in Vietnam from 5 July 1968 through 12 January 1970, which included a voluntary 6-month extension of his foreign service tour, which he requested on 23 May 1969.    

5.  The record documents no acts of valor or significant achievement.  It does reveal a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on or about 8 August 1969, for being absent without leave (AWOL) from on or about 26 through 30 July 1969.  It also shows a summary court-martial (SCM) conviction on 9 December 1969, for violating Articles 86 and 92 of the UCMJ by violating a lawful general regulation on or about 24 October 1969 by failing to go at the time prescribed to his appointed place of duty on or about 30 October 1969.  

6.  The available medical records document no treatment for a mentally or physically disabling condition that would have supported separation processing through medical channels.  A Standard Form (SF) 89 (Report of Medical History) that the applicant completed during his separation processing lists several medical conditions he had suffered from, but none are related to a psychiatric or mental condition and none medically disqualified him from further service.  

7.  On 13 March 1970, the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-212, by reason of unfitness (frequent incidents of a discreditable nature with civil or military authorities).  The DD Form 214 he was issued a the time shows he completed    2 years, 4 months, and 10 days of creditable  active military service and that he accrued 4 days of lost time due to being AWOL.  It also shows he was issued an Undesirable Discharge Certificate.

8.  The applicant, in his previous application, provided a letter from a clinical director, dated 24 August 2010, which indicates he suffered from PTSD and a major depressive disorder.  The clinical director states it is his conclusion that the applicant has suffered from PTSD since the beginning of his first tour in the RVN and it became more severe during his second tour.  He opines that the applicant’s symptoms caused his behavior during his second tour and because the military did not recognize PTSD in those years he was discharged instead of being placed in a VA hospital.  The applicant also provides a letter from the Director, Army JSRRC in response to the applicant’s request for verification of many stressors.  The letter verifies one stressor.  This stressor is that a Soldier of the applicant’s unit committed suicide on 25 December 1968. The applicant also provided a letter from the Laplata County Sheriff.

9.  The applicant also provides letters from four of his siblings explaining the changes in the applicant’s behavior before and after service in Vietnam.

10.  A review of the applicant’s official records as well as the documents submitted with his application failed to show evidence that the applicant was considered for evaluation by a Medical Evaluation Board or that the applicant was diagnosed with a permanent unfitting condition.

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).  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 the applicant was separated 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 the applicant was separated.  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 the change does not call into question the application of the existing fitness standards.

12.  Army Regulation 635-40, paragraph 3-2b, provides that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.

13.  Army Regulation 40-400 (Medical Services – Patient Administration), paragraph 7-1, provides, in pertinent part, that physicians who identify Soldiers with medical conditions not meeting fitness standards for retention will initiate a DA Form 3349 referring them to the Physical Disability Evaluation System (PDES).  Soldiers issued a permanent profile with a numerical designator of 3 or 4 in one of the physical profile factors who meet retention standards are referred to the military occupational specialty (MOS) medical retention board (MMRB).  If the Soldier does not meet retention standards, an MEB is mandatory and will be initiated by the PEB liaison officer.  MEBs are convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the member’s medical status.

14.  Title 38, U.S. Code, sections 1110 and 1131, 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.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards assigned by proper military medical authorities during the applicant's separation processing.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's discharge was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant's rights.  Accordingly, the type of discharge directed and the reason were appropriate under the circumstances.

2.  The evidence of record confirms the applicant was separated under the provisions of Army Regulation 635-212, by reason of unfitness (frequent incidents of a discreditable nature with civil and military authorities).  Absent any evidence of record or independent evidence provided by the applicant that shows an error or injustice in the separation process, this documents carries with it a presumption of Government regularity in the discharge process.  

3.  The available evidence fails to provide sufficient evidence to show he was suffering from a physically or mentally disabling condition at the time of his discharge that would have supported separation processing through medical channels.  Likewise, there is no evidence that would support a conclusion that he was suffering from a mental (PTSD or similar) disorder at the time that would have caused his misconduct and led to his discharge.

4.  The documents provided by the applicant with his applications dated 40 years after the fact which opine that the applicant was suffering from PTSD at the time of his discharge has also been carefully considered; however, the available  evidence of record does not support this opinion and does not provide sufficient evidence to refute the application of existing fitness standards at the time of the applicant’s discharge.  

5.  Accordingly, the available evidence is not sufficient for an upgrade of the applicant's discharge or to retire him by reason of permanent disability.

  BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ___X__ _  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 AR20100020403, dated 22 February 2011 and Docket Number AR20090005899, dated 25 August 2009. 




      _______ _  X ______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20120007109





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ABCMR Record of Proceedings (cont)                                         AR20120007109



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