MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:.

	BOARD DATE:            19 May 1999       
	DOCKET NUMBER:   AC97-11549
				   AR1999018156

	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. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Robert G. Hinkle		Member	
	Mr. Roger W. Able		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:  Physical disability retirement or discharge, cancellation of enrollment in the Survivor Benefit Program (SBP), and refund of all money paid into the SBP.  

APPLICANT STATES:  The applicant states that the VA has awarded him a 100 percent service connected disability for post traumatic stress disorder (PTSD) retroactive to 12 November 1991, and since his recognized stressors (traumatic events) occurred in Korea between 1967 and 1968, and he remained in the Army until his retirement in 1983, it could be assumed that he had psychiatric problems while on active duty, for which he received no treatment.  He should have been discharged with a 100 percent permanent disability.  He requests that his record reflect this with retroactive pay to 12 November 1991, all money owed by him to the SBP be cancelled, and all money paid to the SBP be refunded.  (NOTE:  The Board considered the applicant’s request on 29 April 1999 and determined that the applicant’s submission in 1997 is within the three years if his retirement pay was suspended and disability pay began after the 5 February 1995 determination of 100 percent disability.  Hence the applicant’s case has been reconstituted to excuse his failure to timely file.) 
 
EVIDENCE OF RECORD:  The applicant's military records show:

The applicant served in the Army from 16 January 1956 to 14 December 1958.  He reenlisted on 29 March 1966 and was discharged in the grade of E-5 as a 11B40 (infantryman) on 18 March 1969.  He again reenlisted, and remained in the Army until his retirement in 1983, attaining the rank of Sergeant First Class.

The applicant’s records show that he served in assignments throughout the world, to include duty as an ammunition storage specialist in Japan in the     1956-1958 time frame, service as an infantryman in the 1960’s and early 1970’s, and as a supply sergeant until his retirement.  He also had an assignment as a drill sergeant, served as a career counselor, was a battalion education NCO, and was a housing project manager assistant.  Sometime in the 1975 time frame he was reclassified from his MOS of 11B (infantry) to a 76Y (supply) MOS because of his physical profile.  In addition to Japan, he served in Korea (two tours of duty), in Germany, Vietnam, and Hawaii.  He was stationed at Fort Dix, Aberdeen Proving Ground, and Fort Riley, Kansas, among other locations.

The applicant’s awards include the Bronze Star Medal, the National Defense Service Medal, Good Conduct Medal (5th award), Armed Forces Expeditionary Medal, and Combat Infantryman Badge, among others.  He has received numerous letters of appreciation and commendation throughout his career, and several letters recommending his promotion.

The applicant’s evaluation reports have ranged from good in his assignment as a drill sergeant, outstanding as a squad leader, very good as a battalion education NCO, and outstanding in his numerous assignments as a supply sergeant in the 1970’s and 1980’s.  

The applicant had one mar in his record – nonjudicial punishment under Article 15, UCMJ, on 2 December 1968 for failure to comply with a directive and failure to comply with charge of quarters instructions.   

He retired on 30 April 1983 with over 20 years of active service, and over 7 years of inactive service.  His rank at the time of retirement was Sergeant First Class.  His DD Form 214 shows that he spent almost 11 years as an infantryman, and 9 years as a supply sergeant during his military career.

A 10 August 1994 psychiatric evaluation indicates that the applicant dates the onset of his psychiatric problems to 1967 while he was on active duty in Korea as an infantryman, when he began experiencing intense anxiety about his personal safety, compounded by two separate traumatic experiences – one when a truck in which he was riding turned over, killing four soldiers and injuring 16; and the other when he came under grenade and small arms fire.  Following the truck incident, he began experiencing panic attacks, which have occurred randomly and continuously since 1967, and he associates anger with those attacks; and he associates his panic symptoms with feelings he had in the foxhole in the second incident.  The applicant has experienced flashbacks continuously since 1967, consisting of hallucinating, the sound of stones being thrown at him, occurring at night in dreams, or during the day when awake.  He is afraid to go to sleep.  The applicant reported experiencing constant tension and aggressiveness since Korea.  He noted that his relations with others soured in and after Korea.  The psychiatrist stated that there was no history of psychiatric treatment, illness or symptoms prior to 1992.  He came to psychiatric attention at that time following his having written threatening letters after denial of compensation for PTSD.  He saw no psychiatrist in the service, and did not perceive his symptoms as constituting a psychiatric problem.  

The applicant’s wife stated that his problem was his temper; he had no patience, jumps all over her and other family members, sometimes throws things in violent outburst, used to strike out and hit her constantly in his sleep.  She stated that he was unable to sleep, was secretive, and was constantly talking and mumbling.  She stated that there were no problems when she married him in 1957, but he has been bad since Korea and Vietnam, and since his discharge from Seneca Army Depot.

The doctor diagnosed the applicant as having PTSD, dysthymic disorder (or depressive neurosis), and atypical, mixed or other personality disorder with paranoid, borderline, narcissistic.  That doctor stated that his PTSD is casually related to his infantry assignment and Korean combat history, that he appeared to have been continuously and severely symptomatic since that time, and that his aggressive, litigious, belligerent characterologic style and his aversion to discussion of his traumatic history and symptoms and frank avoidance, have served to obscure his PTSD symptoms.  He considered the applicant to be completely, permanently disabled.

In a 2 February 1995 rating decision, the VA awarded the applicant a 100 percent service connected disability for PTSD, a 10 percent rating for problems with his left knee, and a zero percent rating for hearing loss.  On 6 June 1998 the VA continued the award of the 100 percent rating for PTSD.    

An August 1997 billing from the Defense Finance and Accounting Service (DFAS) in Cleveland shows that he owed the SBP $2,232.21 in premium payments.  A January 1999 bill from DFAS shows that he owed $3,901.65.

A 22 August 1997 letter from the VA indicates that the applicant had been receiving care since 21 December 1990 because of PTSD and personality disorder.

In the processing of this case an advisory opinion (COPY ATTACHED) was obtained from the Chief of the Army Retirement Service at the Total Army Personnel Command (PERSCOM), regarding SBP.  That official stated that the applicant elected spouse only SBP coverage at the time of his retirement, was currently in a non-pay status, having his military retired pay totally offset by the $2, 078 VA tax-free disability compensation received; and since there was no retired pay from which to withhold SPB costs, the applicant was responsible to make direct payments of SBP premiums, or authorize the VA to do so on his behalf.  That official stated that the applicant owed $3,706.34 (as of the             23 November 1998 date of the advisory opinion).  He recommended that the applicant’s request be disapproved.

In his rebuttal to this opinion (COPY ATTACHED), the applicant states that his request was not to be disenrolled from SBP but to be annulled from it, and that had he been retired with a 100 percent disability rating he would not have enrolled in SBP.  He states that his spouse would have been eligible for dependency indemnity compensation, which does not offset social security, while SBP does.  If SBP was annulled he would not be charged a monthly amount and be in arrears.  He brings up the traumatic experience he suffered in Korea, and encloses  a citation showing that he experienced, and reacted to hostile fire.  
He stated that he advanced in grade from private to E-6 in 3 years prior to the 1967 incident in Korea, but it took him over 13 years to advance to grade E-7, i.e., his school grades dropped dramatically due to his short attention span, and he became confrontational with everyone following the 1967 incident.

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 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.

Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

Army Regulation 635-40, paragraph 2-2b, as amended, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

Title 38, United States Code, sections 310 and 331, 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.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. The election made by the member was irrevocable.

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

1.  The applicant's continued performance of duty right up to the day of his retirement has raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.  The Board notes that the applicant continued on active duty for some 15 years after the 1967 Korean incident, served in Vietnam and other locations throughout the world, completed service schools, was promoted, attaining the rank of Sergeant First Class, received numerous awards and letters of commendation and appreciation, and had outstanding evaluation reports during his assignments in the supply field.  His slow advancement to grade E-7 can be attributed to his career field change in 1975 (from infantry to supply), making him less competitive in that field than other soldiers in the supply field with his rank and years of service, rather than any other factor, notwithstanding his statement in his rebuttal to the advisory opinion.

2.  The applicant did not have any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.

3.  The applicant elected to participate in the SBP program at the time of his retirement, agreeing to pay premiums in order to have an annuity provided to his wife upon his death.  He is responsible for paying those premiums, and he has shown no good reason why money paid by him to the SBP (during which time his wife would have received an annuity had he passed away) should be refunded, or why money owed by him should be cancelled.

4.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

5.  The award of VA compensation does not mandate disability retirement or separation from the Army.  The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation.  The VA is not required to determine fitness for duty at the time of separation.  The Army must find a member physically unfit before he can be medically retired or separated.

6.  The VA 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.  Consequently, due to the two concepts involved, the applicant's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify him for VA benefits based on an evaluation by that agency.

7.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

8.  Since the applicant's medical condition was not medically unfitting for retention at the time in accordance with Army Regulation 40-501, there was no basis for medical retirement or separation.

9.  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

___jns__  ___rgh__  __rwa___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC97-11549/AR1999018156	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990519	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1. 108.00		
2.  137.03		
3.  128.00		
4.		
5.		
6.