MEMORANDUM OF CONSIDERATION

IN THE CASE OF:     

BOARD DATE:           4 August 1999  
DOCKET NUMBER:  AR1999015254

	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. G. E. Vandenberg		Analyst	
-

  The following members, a quorum, were present:

	Mr. Fred K. McCoy		Chairperson	
	Ms. Irene N. Wheelwright		Member	
	Mr. George D. Paxson		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 to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	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: Reconsideration of his application to correct his records by upgrading his discharge and/or changing the reason for his discharge to physical disability.

APPLICANT STATES:  That he defers comment to his counsel.

COUNSEL CONTENDS:  In effect, that the Board acted improperly in its prior decision in that it failed to articulate its reasons not to waive the three year statute of limitations.  He states that the applicant was known to be suffering from the affects of drug abuse and a behavioral disorder at the time of his discharge, and notes that the applicant has subsequently been diagnosed as suffering from post traumatic stress disorder (PTSD).  He contends that these conditions should have been considered as mitigating factors.  He further contends that the validity of the discharge is questionable because the doctor who examined the applicant, at the time of discharge, did not describe his drug addiction.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 10 August 1988 (COPY ATTACHED).

The applicant submits additional private and VA medical records, dated 1992 and later, which afford the diagnosis of PTSD and describe his treatment for this condition and for his drug problem.  Character references from his employer and fellow employees describing him as a hard worker who cares for others and a personal statements outlining his post service activities are also submitted.  This information was not available to the Board previously and constitutes new evidence that requires Board review.

The applicant’s records show that he received non-judicial punishments for two periods of AWOL, a total of 19 days; for being absent from his place of duty on three occasions; two incidents of failure to obey lawful orders; a charge of willful disobedience of orders and a charge of failure to follow a general order.  This last occurred when the applicant was apprehended in an off limits area where, by his own admission, he was for the purpose of obtaining illegal drugs.  There are also statements of record that indicate that the applicant had been counseled for other occurrences of a similar nature on several occasions.  All of these incidents, except his first AWOL, occurred during his three months in Viet Nam.

The record shows that the applicant had entered into the drug exemption or drug amnesty program and he admitted to violating the provisions of this program by not only continuing to use drugs but in fact escalating his use of them.  Further, his medical records indicate that he was offered but declined treatment for his problems.

During of the applicant’s period of service, the Department of Defense had a program known as the Drug Exemption Program or Drug Amnesty Program (DEP/DAP).  (This program was the forerunner to and incorporated into the Army's later ADAPCP program.)  The regulation pertaining to these programs discuss, among other subjects, the rehabilitation program, and limits the use of certain evidence obtained from individuals under the exemption policy.  For individuals enrolled in the programs, the exemption policy provides immunity from disciplinary action and covers admissions of drug use/possession for personal use, occurring prior to the time of initial interview, which is revealed to a physician or a counselor or is revealed by a positive urinalysis administered during any phase of the rehabilitation program.  The regulation provided that under the exemption policy, the characterization of an individual's service is restricted to fully honorable, " . . . if the decision to initiate discharge against a service member is motivated by the member's having been identified as an alcohol abuser."  They further provided that acceptance into the program did not preclude consideration of discharge for other offences under other applicable regulations.

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 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, hysterical neurosis and traumatic 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.

Army Regulation 635-40 (Physical Evaluation for Retention or Separation) provides in paragraph 4-3 that an enlisted soldier on whom elimination action that might result in a discharge under other than honorable conditions has been started may not be processed for physical disability processing.  Such a case is to be referred to the officer exercising general court-martial jurisdiction.  The general court-martial convening authority (GCMA) may authorize physical disability processing based only on finding that the disability is the cause or a substantial contributing cause of the misconduct or when specific circumstances warrant disability rather than administrative separation

The statute under which the Board was established provides that an application must be filed within 3 years after discovery of the alleged error or injustice.  The Board may excuse a failure to timely file if it finds it to be in the interest of justice.  In this case the Board determined that the original application was not filed within the time required and that it was not in the interest of justice to excuse the failure to timely file.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant’s admission of illegal drug use could not have been nor was it used in determining to discharge the applicant.  There is no evidence that it was used as a factor in determining the reason for or characterization of his discharge.  

2.  The applicant’s psychiatric evaluation did not describe the applicant’s mental condition as fitting any of the diagnoses that later might have been considered to be PTSD or directly related conditions.

3.  Absent convincing evidence that, at the time of the discharge or the behavior that led to the discharge, the applicant was so impaired by psychiatric, psychological, mental, or emotional problems that he could not both tell right from wrong and adhere to the right, the PTSD issue does nothing to demonstrate an error or an injustice in the discharge.

4.  The Board rejects the implication that illegal drug abuse necessarily mitigates both itself and the effects thereof.

5.  Even had the applicant been diagnosed as having physical or mental disability, he was being processed for elimination under provisions that resulted in a discharge under other than honorable conditions, therefore, he could not be considered for a disability separation.

6.  Prior to reaching its prior decision the Board looked at the entire file.  It was only after all aspects of the case had been considered and it had been concluded that there was no basis to recommend a correction of the records that the Board considered the statute of limitations.  Had the Board determined that error or injustice existed it undoubtedly would have recommended relief in spite of the failure to submit your application within the 3-year time limit.  The Board has never denied an application simply because it was not submitted within the 3 year time frame.

7.  The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

8.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___FKM_  __INW__   ___GDP_  DENY APPLICATION

						Loren G. Harrell		r

INDEX

CASE ID	AR1999015254	
SUFFIX		
RECON	 	
DATE BOARDED	19990804	
TYPE OF DISCHARGE	(UOTHC)	
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A01.33	
2.	A51.00	
3.	A53.00	
4.	177	
5.		
6.