MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:         

	BOARD DATE:           9 March 2000                   
	DOCKET NUMBER:   AR1999022795

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar 		Chairperson	
	Mr. Thomas D. Howard, Jr.		Member	
	Ms. Carol Jo Suiter		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.  

APPLICANT STATES:  The applicant states that when he came into the Army in 1968 at age 17 he had never did anything illegal, was never incarcerated, and never abused drugs or alcohol.  He went to Vietnam, performed his duty as a combat soldier and witnessed some traumatic situations.  He started using drugs and alcohol, and is still caught up in this vicious cycle.  

Had he been discharged today he would have received a medical or a general discharge once the Army became aware of his chemical dependency and the fact that he suffered from post traumatic stress disorder (PTSD).  

While AWOL, he checked into the Portsmouth Naval Hospital and was placed in the psychiatric ward for two weeks; however, he was determined to be mentally competent and required to return to his unit at Fort Bragg, North Carolina.  He became involved in an armed robbery, was convicted and sentenced to 15 years in jail.  He received an undesirable discharge from the Army.  He attempted to get his discharge upgraded on several occasions to no avail.

He served his country well and received several awards.  He is suffering from several maladies, to include PTSD, and is taking a number of medications. He has ringing noises in both ears and has hearing difficulties.

The VA has treated him for chemical dependency in 1990; however, he was arrested for federal parole violations, the use of illegal drugs and alcohol, thanks to the Army.  He has never had the opportunity to be treated at the Lyons VA medical center for PTSD, because he has no VA benefits.  His entire life has been chaotic and out of control since 1970, because of the Army.  He is a product created by the government, and he needs treatment for his mental disabilities.  He has not been successful in receiving this treatment while in prison or from civilian mental health doctors, because they do not have the special training in the PTSD field.  He was victimized by the government, taught how to kill without shame, and did not suffer shame in doing his duty as a combat soldier.  

The American government has not taken responsibility for its actions against the Vietnam veterans.  Once they are done with the veterans, they become useless. He has been abhorring his feelings because of the oppressive and barbarous acts that he was subject to during his tour of combat duty.  He is in excruciating pain, both mentally and emotionally.  He is crying out for help.  He requests that the Board strongly consider the injustice that has been levied against him.  He wants to live a normal life, but as long as he suffers from PTSD he cannot do so, unless his discharge is upgraded to general, or he receives physical disability retirement or separation.

The applicant encloses a copy of his two separation documents (DD Form 214), a copy of two articles concerning PTSD, and a copy of a questionnaire concerning his personal life.

EVIDENCE OF RECORD:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board’s consideration of his case on 29 October 1980, in which he requested that his undesirable discharge be upgraded to general (COPY ATTACHED).

NEW EVIDENCE OR INFORMATION:

In a 23 April 1981 reply to his request for another review of his discharge,  the Army Discharge Review Board informed him that he could reapply provided he submitted new and relevant evidence to substantiate his contentions.

On 27 October 1981, in response to his application for a review of his discharge, the Army Discharge Review Board informed him that by virtue of two previous reviews of his case, he was ineligible for further consideration, unless he consented to a personal appearance before the board. 

In a 28 February 1990 reply to his request to this Board that his undesirable discharge be upgraded to a general discharge, he was informed that he had not submitted any new relevant evidence to warrant a recommendation that his case be reopened, and accordingly, his request was not submitted to the Board.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

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.

The aforementioned regulation also states in pertinent part 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 they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  

Army Regulation 635-40 provides that a member who is charged with an offense for which he could be dismissed or given a punitive discharge may not be
referred for, or continue, disability processing.

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.

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 was in confinement by civil authorities when he received his undesirable discharge.  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.  Furthermore, because of the nature of his administrative separation, he could not have been referred for disability processing, even if he did have a physical disability.    

2.  There is no evidence of record nor has the applicant submitted any, to indicate that he has been awarded a VA rating.  Nevertheless, 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.

3.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.  He is not entitled to physical disability retirement or discharge.   

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

5.  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

___cjs___  __ tdh___  ___jh____  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999022795	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000309	
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.  189	108.00	
2.		
3.		
4.		
5.		
6.