BOARD DATE:  28 May 2015

		DOCKET NUMBER:  AR20150004899 


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:

The applicant requests defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's request to correct his records to show he was retired due to medical disability with a rating of no less than 70% due to post-traumatic stress disorder (PTSD).

2.  Counsel states that they realize the applicant received a General Discharge Certificate, but his discharge was, nonetheless, caused by his severe PTSD.  Had his command fully understood the nature of PTSD at the time of his discharge, he would have received an honorable discharge.

3.  Counsel provides, as new evidence, a copy of the Secretary of Defense memorandum, Subject:  Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming PTSD, dated 3 September 2014. 

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 AR20130008938, dated 11 March 2014.

2.  As new evidence, counsel provides a 3 September 2014 Secretary of Defense memorandum.  The Secretary of Defense directed the Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider petitions for the purposes of upgrading their discharges based on claims of PTSD.  He notes the records of Service members who served before PTSD was recognized do not contain substantive information concerning medical conditions.  It has therefore been extremely difficult to document conditions that form a basis for mitigation in punitive, administrative, or other legal actions or to establish a nexus between PTSD and the misconduct underlying the Service member's discharge with a characterization of service of under other than honorable.  Liberal consideration will be given to petitions for changes in characterization of service.  In cases in which PTSD or PTSD-related conditions may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the under other than honorable conditions characterization of service.

3.  The applicant enlisted in the Regular Army (RA) on 27 February 1964.  For most of his service he held and worked in supply military occupational specialties.

4.  A Standard Form (SF) 600 (Health Care Record-Chronological Record of Medical Care) shows the applicant received medical treatment on 12 November 1964.  He reported that he "just feels bad "all over.”  The medical authority stated that the applicant's complaints were very vague and that he "seems depressed." 

5.  His DA Form 20 (Enlisted Qualification Record) shows he was assigned to:

* Vietnam from 16 August 1964 to 5 August 1965
* Fort Hood, TX, from on or about 1 October 1965 to 24 February 1967

6.  An SF 600 shows the applicant received medical treatment on 22 November 1965.  He reported feeling nervous and the medical authority prescribed 
10 milligrams (mg) of Librium (used for the treatment of anxiety disorders). 

7.  His record contains a DA Form 2627-1 (Record of Proceedings Under Article 15, of the Uniform Code of Military Justice (UCMJ)), dated 21 July 1966, which shows he received nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ for failing to remain in the company area during an alert.

8.  An SF 89 (Report of Medical History) and an SF 88 (Report of Medical Examination) dated 2 February 1967 were completed in conjunction with an expiration term of service (ETS) medical examination.
	a.  The SF 89 shows the applicant checked a box indicating he had been or was currently experiencing depression or excessive worry.  The physician clarified this box mark by indicating that he was suffering from excessive worry.

	b.  The SF 88 shows the examining physician checked a box indicating that the applicant was fully qualified for separation.

9.  A DA Form 3082-R (Statement of Medical Condition) dated 17 February 1967, shows he noted he had undergone a separation medical examination more than 3 working days prior to his departure from his place of separation.  He stated that since his last physical examination, his medical condition had changed in that he had developed a "[s]evere nervous condition since [his] return from overseas."

10.  He was honorably released from active duty on 24 February 1967 as a specialist five (SP5)/E-5.  He had completed 2 years, 11 months, and 28 days of net active service, of which 11 months and 20 days was credited as foreign service in Vietnam.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was awarded or authorized the:

* National Defense Service Medal
* Army Good Conduct Medal
* Republic of Vietnam Campaign Medal
* Vietnam Service Medal with two bronze service stars
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar

11.  An SF 89 and an SF 88 dated 19 January 1968 shows the applicant received a medical examination prior to reenlisting.

	a.  The SF 89 shows the applicant checked a box indicating he had been or was currently experiencing depression or excessive worry.  The physician clarified this box mark by indicating that he had a "tendency to nervousness."

	b.  The SF 88 shows the examining physician checked a box indicating that the applicant was fully qualified for reenlistment.

12.  He again enlisted in the RA on 24 January 1968 in the rank/grade of specialist four (SP4)/E-4.  He was honorably discharged on 17 March 1968 for immediate reenlistment.  He reenlisted for a period of 6 years the following day.

13.  His DA Form 20 shows he was assigned to:

* Germany from 4 March 1968 to 22 January 1969 
* Vietnam from 3 March 1969 to 14 October 1969
* Fort Bliss, TX from on or about 8 December 1969 to 12 August 1970

14.  Two SF 600s show he received medical treatment on:

	a.  27 July 1969 and reported having had an anxiety reaction for which he was prescribed Librium.

	b.  17 January 1970, he went to the troop medical Clinic  (TMC) and requested to be seen/receive treatment for nerves.

15.  An SF 89 and an SF 88, dated 9 March 1970, show the applicant received a medical examination prior to reenlisting.

	a.  The SF 89 shows the applicant checked a box indicating he had been or was currently experiencing depression or excessive worry and nervous trouble.  The physician clarified these box marks by indicating that the applicant had "Headaches- when under tension, no complications" and "Worry and nervousness- situational."

	b.  The SF 88 shows the examining physician checked a box indicating that the applicant was fully qualified for Airborne training.

16.  He has honorably discharged for immediate reenlistment on 30 July 1970 as a staff sergeant (SSG)/E-6.  He had completed 2 years, 4 months, and 13 days of net active service, of which 1 year, 5 months, and 15 days was credited as foreign service in U.S. Army Europe (USAREUR) (Germany) and U.S. Army Pacific (USARPAC) (Vietnam).  Additionally, he was awarded or authorized the:

* Vietnam Service Medal
* Republic of Vietnam Campaign Medal
* Expert Marksmanship Qualification Badge with Rifle Bar (M-14)

17.  He reenlisted on 31 July 1970 for a period of 6 years.  His DA Form 20 shows he was assigned to:

* Vietnam from 2 September 1970 to 3 September 1971
* Fort Lee, VA from on or about 20 September 1971 to 4 October 1972
* Fort Sill, OK from 16 October 1972 to 9 November 1972

18.  Six SFs 600 show he received medical treatment on:

	a.  20 September 1970, and received a neurological exam, the results of which were normal.  His physician also prescribed Valium and Darvon.
	b.  23 June 1971, for a rash, nerves, and sleeplessness.  The doctor prescribed Valium.

	c.  5 July 1971 and 12 August 1971 he received refills on his Valium.

	d.  13 December 1971, he complained he felt nervous about his job and very nervous before class.  The physician felt he was suffering from mild to moderate situational anxiety and prescribed Librium.

	e.  23 February 1972, and complained he had been nervous recently.

	f.  17 April 1972, he complained of tension headaches and nervousness.  The doctor prescribed Valium.

19.  He received which shows he received NJP on 14 August 1972 for failing to be at his appointed place of duty to perform duties as staff duty NCO on 6 August 1972.  His punishment included a reduction in grade to sergeant 
(SGT)/E-5; however, the punishment was suspended for 3 months but later vacated on 13 September 1972.

20.  An SF 600, dated 2 September 1972, shows the applicant complained of nervousness and was prescribed Librium.

21.  His record contains a DA Form 3545 (Deserter Wanted by the Armed Forces) dated 10 October 1972 and a DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence) dated 24 October 1972 which show he departed absent without leave (AWOL) on 5 September 1972, he was dropped from the rolls (DFR) on 4 October 1972, and he surrendered to military authorities on 16 October 1972.

22.  His record contains a DD Form 458 (Charge Sheet), dated 4 October 1972, which shows court-martial charges were preferred against him for being AWOL from 5 September 1972 to 16 October 1972.

23.  His record contains a DA Form 2496 (Disposition Form), dated 20 October 1972, wherein he requested discharge IAW chapter 10 of Army Regulation 
635-200 (Personnel Separations Enlisted Personnel).  He stated he had not been subjected to coercion with respect to his request and had been advised of his rights and the implications attached to his request.  He indicated/acknowledged he understood that:

* if his request was approved, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate 
* as a result of the issuance of such a discharge he could be deprived of many or all Army benefits, he could be deprived of all VA benefits, and he could be deprived of his rights and benefits as a veteran under Federal and State law
* he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge
* once he submitted his request for discharge it could be withdrawn only as provided in paragraph 10-5 of Army Regulation 635-200
* he had submitted a statement in his own behalf
* prior to completing his request he consulted with legal counsel on 
19 October 1972
* counsel advised him of his rights under the UCMJ, the stages and various proceedings involved in a general court-martial, the nature of the offense with which he had been charged, and the basis for the contemplated trial by court-martial
* counsel advised him of the maximum punishment authorized by the UCMJ and the effects of an undesirable discharge 

24.  He provided an undated statement in his own behalf, wherein he indicated he was requesting a discharge IAW chapter 10 of Army Regulation 635-200 and:

* subsequent to his return from Vietnam and prior to his AWOL he had been in and out of "small trouble"
* he felt a discharge IAW chapter 10 of Army Regulation 635-200 was fair and in the best interest of the Army, his family, and himself

25.  An SF 89 and an SF 88, dated 24 October 1972, show the applicant received a medical examination prior to his discharge.

	a.  The SF 89 shows the applicant checked boxes indicating he had been or was currently experiencing frequent trouble sleeping, depression or excessive worry, and nervous trouble.  The physician clarified these box marks by indicating that he had "Trouble sleeping every night," "Excessive Worry," and that he was "Nervous."

	b.  The SF 88 shows the examining physician checked a box indicating that the applicant was fully qualified for release from active duty/discharge.

26.  His record contains a DA Form 3822-R (Report of Mental Status Evaluation), dated 24 October 1972, which shows:



* his behavior was normal, he was fully alert, and he had a level mood
* his thinking process was clear, his thought content was normal, and his memory was good
* he had no significant illnesses, he was able to distinguish right from wrong, and was able to adhere to the right
* he had the capacity to understand and participate in board proceedings and met the retention standards prescribed in chapter 3 of Army Regulation 40-501

27.  The company commander and battalion commander recommended the applicant's request for discharge be approved and that he be issued a general discharge because of his previous periods of good service and numerous tours in Vietnam.

28.  On 9 November 1972, the separation authority approved his voluntary request for separation and directed he receive a General Discharge Certificate.  Accordingly, he was discharged that same day.

29.  His DD Form 214 confirms he was discharged, in the rank/grade of SGT/E-5, on 9 November 1972, in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial and that he received an under honorable conditions (general) characterization of service.  He completed 2 years, 1 month, and 29 days of net active service during the period under review, of which 1 year and 2 days was credited as foreign service in Vietnam.  He also had 41 days of lost time.  Additionally, he was awarded or authorized the:

* National Defense Service Medal
* Vietnam Service Medal 
* Republic of Vietnam Campaign Medal with Device (1960)
* Army Commendation Medal
* Bronze Star Medal
* Army Good Conduct Medal (2nd Award)

30.  The applicant’s Enlisted Efficiency Reports for the periods August 1970 through March 1972 contain such comments as, “…is young, hard working, and shows great potential for advancement”; “…performed his duty with pride and kept the section functioning…;” “…has done an outstanding job as a Materiel Readiness Expediter for the Division Supply Office”; and “…has performed his duty as an instructor in Storage Training Division in a highly professional manner. His assignment…and his performance in this capacity has been outstanding; his technical competence is exceptional.”

31.  There is no indication that the applicant applied to the Army Discharge Review Board within that board’s 15-year statute of limitations.

32.  Counsel provided several post-service civilian and VA medical records.  These records indicate that the applicant was seen on countless occasions and civilian and VA medical officials believed he suffered from anxiety neurosis with depressive features/PTSD as a result of his Vietnam service.  He began seeking treatment at various civilian and VA medical facilities directly after his discharge from military service.

33.  Counsel provided several VA rating decisions which show he received a service-connected disability rating for anxiety neurosis with depressive features which was reclassified to PTSD on 16 March 1993.  These ratings decisions show:

* on 1 July 1975 he was awarded a 30% disability rating 
* on 16 March 1993 his disability rating was increase to 50%
* on 29 April 1994 his disability rating was increased to 100%, with an effective date of 24 March 1994
* on 23 July 1996 the effective date of his 100% disability rating was changed to 12 September 1991

34.  For the original consideration, counsel provided ABCMR Docket Number AR2002076652, dated 16 December 2003, wherein an applicant requested disability retirement.  The evidence of record also shows that applicant was hospitalized for psychiatric reasons several times following his return from Vietnam and was treated with psychotropic drugs.  He was also reassigned several times in an effort to find the right assignment for him, in order to lessen the symptoms of his mental distress from combat neurosis.  This request was granted based in part on a review of his medical records and the fact that the psychiatrist at the U.S. Army Physical Disability Agency (USAPDA) who reviewed his records for the ABCMR was biased as he had treated this applicant while he was in the military and found him fit for duty at that time.  The USAPDA physician did not acknowledge this connection with that applicant and failed to recuse himself from the case.  Additionally, the reason for the chapter 10 discharge in this case did not involve an episode of AWOL, but a sort of psychotic episode.

35.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  At the time, an undesirable discharge was normally given.

36.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member'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.

37.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.

38.  Army Regulation 635-40 provides guidance on processing through the PDES, which includes the convening of an MEB to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a PEB.  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  It also investigates the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board.  It evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

DISCUSSION AND CONCLUSIONS:

1.  The Secretary of Defense's memorandum was not meant to be applied to change the criteria for physical disability.

2.  Counsel claims the applicant's discharge was "caused by his severe PTSD."

3.  His diagnosis of PTSD in not in question; however, the request asked for reconsideration of an earlier appeal for disability retirement.  There is no evidence to show he was unable to perform his assigned duties.

4.  His record shows he was AWOL for over 30 days and accepted NJP for failing to be at his place of duty.  He provides insufficient evidence to show his nervous problems or any other mental condition resulted in his not knowing that going AWOL was wrong.  As such, he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  However, the evidence of record shows that his chain of command considered his previous service and he received a general discharge under honorable conditions rather than a discharge under other than honorable conditions which was normally considered appropriate in a chapter 10 Separations when a Soldier was AWOL for over 30 days.

5.  The applicant served through three enlistments, had numerous physical examinations, and a mental health evaluation.  Each of his physical evaluations show he was medically fit for duty and his mental health evaluation indicated hw was his psychiatrically fit for continued service.  Since he was found medically fit for service by each of the examining medical officials there would have been no reason for his records to go before the PDES.

6.  The evidence shows the applicant was receiving medical care for his anxiety issues and there is no evidence these issues prevented him from performing this military duties.

7.  Further, his Enlisted Efficiency Reports show he was fully capable of performing his duties.  Medical separations are appropriate only when a medical condition prevents a Soldier from performing hisor her duties.

8.  Counsel provided ABCMR Docket Number AR2002076652, dated 
16 December 2003, as justification for granting the applicant's requested relief.  However, that case involved an applicant who had been hospitalized repeatedly for psychiatric treatments while on active duty.  Additionally, that discharge case involved some sort of psychotic episode.  The individual circumstances in each applicant's case are unique; therefore, counsel's arguments and evidence will be considered on its own merit.  

9.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.


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 AR20130008938, dated 11 March 2014.



      ___________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)                                         AR20130008938



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ABCMR Record of Proceedings (cont)                                         AR20150004899



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