MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:   4 March 1999
	DOCKET NUMBER:   AR1998012301

	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. Loren G. Harrell		Director	
	Mr. David H. Keller		Analyst	

  The following members, a quorum, were present:

	Mr. Curtis W. Barbee		Chairperson	
	Ms. Elizabeth Buchanon 		Member	
	Mr. Raymond J. Wagner		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 the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	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)

APPLICANT REQUESTS:  That his undesirable discharge be upgraded to honorable.  He states that his Vietnam experience with multiple shell fragment wounds caused a nervous disorder; that he panicked when he was told he was being shipped back to Vietnam after 8 to 10 months of convalescence.  He claims that his AWOL was the result of PTSD (post traumatic stress disorder).

Counsel offered no evidence or argument beyond that submitted with the application.

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

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

He enlisted on 27 March 1967 and, after training, was assigned to Alaska.  In April 1968 he was reassigned to Vietnam as a light vehicle driver.  On 17 May 1968, after serving 42 days in country, the applicant was medically evacuated to the United States for wounds received as a result of hostile action.

Upon release from the hospital in August 1968, the applicant was reassigned to Fort Meade, Maryland.  There is no evidence of record that he was ordered to return to Vietnam.

On 7 March 1969 the applicant was tried by special court-martial and found guilty of AWOL from 17 October 1968 to 13 January 1969, and for escaping from lawful confinement on 27 January 1969.  He was sentenced to confinement at hard labor for 6 months, forfeiture of $73.00 per month for 6 months, and reduction in grade to private (E-1).

On 7 October 1969 the applicant was formally charged with AWOL from 22 June 1969 to 24 September 1969, and escaping lawful confinement on 22 June 1969.  On 7 November 1969 he consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He stated that he acknowledged he was guilty of the charge against him which authorized the imposition of a bad conduct or dishonorable discharge, and that he did not desire further rehabilitation, nor had no desire for further military service.  He stated that he understood the nature and consequences of the undesirable discharge that he might receive.  He declined to submit a statement in his own behalf.

On 7 November 1969 the separation authority, a major general, approved the applicant’s request and directed he be issued an Undesirable Discharge Certificate.

A 19 December 1969 report of medical examination indicates that the applicant was medically qualified for separation with a physical profile of 1 1 1 2 1 1.  In the report of medical history the applicant furnished for the examination, he stated that his health was “good.”  A report of mental status evaluation determined that he was mentally responsible, able to distinguish right from wrong and adhere to the right, that he had the mental capacity to understand and participate in board proceedings, and he met the medical standards for retention in the Army.

The applicant was discharged on 16 February 1970 at Fort Belvoir, Virginia.  He had 1 year, 11 months and 7 days of creditable service and 343 days time lost.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant’s separation the regulation provided for the issuance of an undesirable discharge.

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).  The condition is described in the current DSM-IV, pages 424 through 429.  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.

On 19 April 1974 the Army Discharge Review Board denied the applicant’s request for upgrade of his discharge.

Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  The U.S. Court of Appeals, observing that applicants to the Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (AR 15-185, paragraph 8), effectively shortens that filing period, has determined that the 3 year limit on filing to the ABCMR should commence on the date of final denial by the ADRB.  In complying with this decision, the Board has adopted the broader policy of calculating the 3 year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.  The Board will continue to excuse any failure to timely file when it finds it would be in the interest of justice to do so.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 19 April 1974, the date of the ADRB review.  The time for the applicant to file a request for correction of any error or injustice expired on 19 April 1977.

The application is dated 6 March 1998 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  CONCUR WITH DETERMINATION

		Loren G. Harrell
		Director

INDEX

CASE ID	AR1998012301	
SUFFIX		
RECON		
DATE BOARDED	19990304	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19700216	
DISCHARGE AUTHORITY	AR635-200 CH10	
DISCHARGE REASON	A71.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	142.00	
3.	A94.13	
4.		
5.		
6.