MEMORANDUM OF CONSIDERATION

IN THE CASE OF:       

BOARD DATE:           1 March 2000                 
DOCKET NUMBER:   AR1999026926

	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:

	Mr. George D. Paxson		Chairperson	
	Ms. Melinda M. Darby		Member	
	Mr. John Saputo		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. 

APPLICANT STATES:  In effect, that he was suffering from post traumatic stress disorder (PTSD) and that this led to his misconduct.  He avers that he was wounded three times and no one listened to him or believed that he had medical problem.  He states that he needs an upgrade in order to obtain medical care for PTSD, an alcohol problem, a hearing disability and other residuals of in-service injuries. 

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 9 November 1994 (COPY ATTACHED).

The contentions that the applicant was suffering from PTSD and that this condition and/or his other medical problems impaired his ability to serve has not previously been addressed by the Board and therefore constitute a new argument that requires Board review.

The applicant’s record shows that he had received non-judicial punishment a total of seven times, four occasions prior to his tour in Vietnam.  He was convicted by a special court-martial prior to the charges that led to his discharge. 

There is no indication of any wounds sustained as a result of hostile action in the applicant’s file.

The applicant’s service medical records show that he sustained a right knee injury in April 1972, which necessitated surgical intervention in October 1972.  He continued to have reoccurring problems with the knee for the remainder of his service.  In September 1972 the applicant received a permanent profile for high frequency hearing loss and his discharge examination shows significant hearing loss.  The service medical records and report of medical examination afforded him at the time of his discharge show no indication of any complaints, suggestions of or finding of any mental, emotional, psychological or psychiatric problems. 

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.  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.  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.  Army Regulation 40-501 does not specifically categorize PTSD; however, it does address anxiety or neurotic disorders, which include PTSD, and provides that such disorders are unfitting only if persistence or recurrence of symptoms is sufficient to require extended or recurrent hospitalization, creates a necessity for limitations of duty or duty in a protected environment or resulting in interference with effective performance of military duty.  

Army Regulation 635-40, paragraph 4-1, provides that a member who is under investigation for or charged with an offense for which he could be dismissed or given a punitive discharge may not be referred for disability processing.  However, if the officer exercising appropriate court-martial jurisdiction dismisses the charge or refers it for trial to a court-martial, which cannot adjudge such a sentence, the case may be referred for disability processing.  When forwarded, the records of such a case must contain a copy of the action signed by the court-martial authority that made the decision.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, states 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’s contention that his misconduct was a result of PTSD is without merit.  The applicant’s history of misconduct commences well before his tour of duty in Vietnam.  Further, 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.

2.  This individual, accused of several offenses, 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 plea bargain rather than risk more stringent sanctions in that he voluntarily deprived himself on any and all defenses.

3.  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.

4.  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.

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

__GDP__  __MMD__  __JS____  DENY APPLICATION

	Karl F. Schneider
	Director, Army Review Boards Agency

INDEX

CASE ID	AR1999026926	
SUFFIX		
RECON	 	
DATE BOARDED	20000301 	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	A70.00	
2.	A71.00	
3.		
4.		
5.		
6.