MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:           29 March 2000                  
	DOCKET NUMBER:   AR1999027388

	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:

	Mr. Robert G. Hinkle		Chairperson	
	Mr. Mark D. Manning		Member	
	Mr. James P. Steuve		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:  In effect, physical disability retirement or separation.  

APPLICANT STATES:  That he suffers from post traumatic stress disorder (PTSD).  At the time of his service, he was 18 years old, young and immature.  He attempted to escape from Camp Stoneman to board a ship for Korea.  He was on a boxing team.  He fell asleep while on guard duty.  He was attacked and was accused of being the attacker.  He was tried and convicted, confined for      30 days and then sent to Korea.  

The applicant has support from family, friends, and others.  His sister stated that when he returned home from Korea he was a completely different person, had developed a nervous condition, had flashbacks and other medical problems.

A program coordinator of community services in Ukiah, California, stated that he had known the applicant for 15 years and the applicant, although disabled, had been of great assistance to many people while not receiving any monetary support.

A staff psychiatrist at the Santa Rosa VA clinic stated that she was treating the applicant for PTSD and bipolar disorder, and his clinical presentation was entirely consistent with his account of the conditions of his discharge.

A friend stated that the applicant was always available when needed, and that the applicant talked frequently about his flashbacks and nightmares.  Another friend stated that the applicant should have VA benefits.  A pastor provided his support, stating that the applicant attended church off and on and maintained himself well.

A psychotherapist stated that the applicant was experiencing PTSD caused by his combat experience in Korea and he believed that his infractions which had blemished his otherwise honorable record were attributable to his service-related mental disorder.  He stated that the applicant had served his country well in combat, been wounded, add had been taken prisoner.  He stated that it was interesting to note that the applicant was AWOL after he became aware that he had orders to go home, the behavior of a mentally ill man who could not let go of the war.

Another friend stated that he had known the applicant for 15 years and that he was the type of person who was quite willing to help others.  Another friend stated that he had known the applicant for three years and he had shown a great interest in helping others in need.  The applicant shared his many flashbacks and his unpleasant experiences during the war.  

Included with the application is information gathered from the applicant as part of the clinical evaluation to assess his entry into the PTSD clinic treatment program.

COUNSEL CONTENDS:  Counsel did not respond to notification that records were available for review.

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 13 January 1982, in which he requested that his bad conduct discharge be upgraded to honorable.  (COPY ATTACHED).

The applicant’s DD Form 214 of 30 April 1951 shows that he was discharged with a Bad Conduct discharge at the Japan Replacement Training Center.  That form shows that he did receive a shrapnel wound to his left knee on                   11 August 1950.  He had 256 days of lost time.

Information contained in the Army Review Board Agency’s legacy files indicate that the applicant had cases considered on two other occasions, in May 1966 and in January 1968.

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.

Army Regulation 635-40, paragraph 1-2, 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. 

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.

 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.  As noted in this Board’s 13 January 1982 consideration of the applicant’s request to upgrade his discharge, his military records were partially lost or destroyed in the National Personnel Records Center file in 1973.  Nonetheless,   the evidence of record clearly indicates that the applicant was discharged with a Bad Conduct discharge on 30 April 1951, as a result of a sentence by court-martial.  The applicant’s medical records are not available; however, absent information to the contrary, the applicant is considered to have been medically fit for retention at the time of his discharge.  He has not provided any probative medical evidence to the contrary.

2.  Furthermore, the applicant's continued performance of duty raised a presumption of fitness which he has not overcome by evidence of any unfitting, acute, grave illness or injury concomitant with his separation.  Nor could he
be referred for disability processing had he been unfit for separation because of the nature of his offense, which resulted in a Bad Conduct discharge.

3.  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.

4.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

5.  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.

6.  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

___mdm_  ___jps___  ___rgh__  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999027388	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000329	
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.  269	108.00	
2.		
3.		
4.		
5.		
6.