MEMORANDUM OF CONSIDERATION

IN THE CASE OF:      

BOARD DATE:           3 February 2000
DOCKET NUMBER:   AR1999025276

	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. Gerald E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Ms. Barbara J. Ellis 		Member	
	Mr. Ernest W. Lutz, Jr.		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 undesirable discharge to honorable.

APPLICANT STATES:  In effect, that as a result of his experiences in Vietnam he was suffering from a psychiatric condition which diminished his ability to serve.  He further avers that his battalion commander and/or his sergeant sexually assaulted him.  He contends that he was given LSD and that he was offered a general discharge but declined it due to the sexual assault.

COUNSEL CONTENDS:  In effect, that the psychiatric examination afforded the applicant, at the time of his discharge, showed that he was suffering from a character and behavior disorder to such a significant degree as to render him unsuitable for continued service.  The counsel contends that it would have been more appropriate to discharge the applicant for unsuitability rather than punish him for acts over which he had little or no control.

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 19 November 1986 (COPY ATTACHED).

The applicant submits private medical records that were not available to the Board previously; this constitutes new evidence that requires Board review.

The applicant’s military records show that he was tried and convicted by Special Courts-Martial on two occasions.  The first was on the charges of failure to go to his appointed place of duty, being disrespectful to a NCO, being AWOL 11 days and disobeying a direct order.  The second was for another 11-day AWOL.  The charges for his third court-martial were three specifications of failure to obey a lawful order and a charge of leaving his appointed place of without authorization.  He received non-judicial punishment (NJP) on three documented occasions, for similar offenses, and there is an indication of at least three additional NJPs for which documentation is no longer in his record.  The court-martial convictions  and three of the NJPs occurred prior to his tour of duty in Vietnam.

The applicant was afforded a neuropsychiatric examination in December 1969, in concert with the preferring of charges for his third courts-martial.  This examination described the applicant as suffering from a severe, chronic schizoid character disorder manifested by autistic thought processes, withdrawal from interpersonal relationships, marked sensitivity with paranoid features and profound low self-esteem.  The condition was considered to have existed prior to service without aggravation.  The applicant described a history of intermittent 

episodes of hallucinatory experiences and fantasy production.  He was not considered to be suffering from any active hallucinatory or delusional episodes at that time.  He was found to not meet the requirements for physical disability processing.  It was determined that he was competent, mentally responsible, able to tell right from wrong and adhere to the right, and had the mental capacity to understand and participate in board proceedings.

The above-mentioned private medical records show a 1991 psychiatric hospitalization following a self-amputation of the applicant’s penis.  The attending psychiatrist diagnosed the applicant as suffering from atypical psychosis at the time of his admission and as suffering from a psychoactive substance-induced organic mental disorder at the time of discharge.  This diagnosis was changed to PTSD during his follow-up care at The Neighborhood Help Center and/or at a VA rehabilitation clinic.  The documents submitted by the applicant are not complete and appear to cover care from at least four different sources.  

Army Regulation 40-501, chapter 3, provides that personality disorders may render an individual administratively unfit rather than unfit because of physical disability.  Interference with effective performance of duty in association with these conditions will be dealt with through appropriate administrative channels.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-13 establishes policy and prescribes procedures for separating members for personality disorder (not amounting to a disability under Army Regulation 635-40), a deeply-ingrained maladaptive pattern of behavior which interferes with the individual's ability to perform.  Prior counseling with a view to correcting deficiencies is mandatory.  A diagnosis by a psychiatrist is required.  Separation under this paragraph may not be used in lieu of disciplinary action solely to spare a soldier who has committed serious acts of misconduct.  An honorable discharge is issued unless a entry-level separation is required.  An individual who has been convicted by general court martial or has more than one special court conviction during the current period of service may be issued a general discharge under honorable conditions.

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 psychiatrists as a distinct diagnosis have only categorized PTSD 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 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 635-200, chapter 10 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.

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 not discharged for a personality disorder but for disciplinary infractions, as was the discretion of the discharge authority.  The applicant’s service record clearly documents disciplinary problems prior to his duty in Vietnam. 

2.  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.

3.  The documentation submitted by the applicant does not support a finding that the applicant was suffering from any by psychiatric, psychological, mental condition other than his reported personality disorder at the time of his discharge.

4.  Contrary to the Counsel’s contention, the applicant was found to be responsible for his actions and the psychiatrist recommended administrative separation.  The decision to separate him for unfitness due to misconduct was a legitimate and appropriate exercise of command discretion. 

5.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with the applicant's overall record of military service.

6.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

7.  This individual, accused of crime, made what was tantamount to a plea bargain.  He has since contended and continues to contend that he was treated unfairly for various and sundry reasons.  His case is analogous to that of other individuals who cop pleas rather than risk more stringent sanctions in that he voluntarily deprived himself on any and all defenses.  That notwithstanding, his arguments have been examined by the Board.

8.  The Board looked at the entire file prior to reaching the previous determination that it was not in the interest of justice to excuse the failure to timely file.  It was only after all other aspects 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 an error or injustice existed it undoubtedly would have recommended relief in spite of the failure to submit the application within the 3-year time limit.  The Board has never denied an application simply because it was not submitted within the required time.

9.  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.

10.  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

___MKP_  ___BJE  _  __EWL__  DENY APPLICATION

	Karl F. Schneider
	Director, Army Review Boards Agency

INDEX

CASE ID	AR1999025276	
SUFFIX		
RECON	 	
DATE BOARDED	 20000203	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19700312	
DISCHARGE AUTHORITY	AR 635-200 cpt 10	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A70.00	
2.	110.02	
3.	A93.23	
4.		
5.		
6.