MEMORANDUM OF CONSIDERATION

IN THE CASE OF:  

BOARD DATE:           24 May 2000
DOCKET NUMBER:   AR1999029175

	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. Carl W. S. Chun		Director	
	Ms. P. A. Castle		Analyst	

  The following members, a quorum, were present:

	Mr. John Slone		Chairperson	
	Mr. Mark D. Manning		Member	
	Ms. Meta Waller		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 request to upgrade his undesirable discharge to honorable.  

APPLICANT STATES:  In effect, that the undesirable discharge was unfair because it was based on four isolated incidents within the nineteen months he served.  He also contends that the discharge should be upgraded because he has post traumatic stress disorder (PTSD).

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum of consideration (MOC) prepared to reflect the Board's original consideration of his case on        30 July 1997(COPY ATTACHED).  As stated in the Board’s original decision the ADRB upgraded the applicant’s discharge to a general discharge under the SDRP.  In 1978 the Public Law 99-126 ADRB review did not affirm the SDRP upgrade.

The applicant, in effect, cites as a basis to upgrade his discharge, that he served favorably for nineteen months and that the undesirable discharge was unfairly based on four isolated incidents during that period. 

In support of his request the applicant submits a letter from a staff psychologist at the New Orleans VA Medical Center dated 16 March 2000.  The letter states the applicant has been receiving treatment for many years at the center for a variety of chronic mental illnesses and is currently diagnosed with both schizophrenia and PTSD.

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 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.

On 4 April 1977 the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973.  This program, known as the DOD Discharge Review Program (Special) (SDRP) required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge, and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.

In October 1978, Public Law 95-126 was enacted.  This legislation denied Veterans Administration (VA) benefits to any former service member who had been AWOL for more than 180 consecutive days, or who had been classified as a deserter or a conscientious objector.  The DOD was required to establish historically consistent, uniform standards for discharge reviews.  Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs was required.  Individuals whose SDRP upgrades were not affirmed upon review under these historically consistent uniform standards were not entitled to VA benefits, unless they had been entitled to such benefits before their SDRP review.

The previous Board’s MOC describes from the applicant’s records the isolated incidents as AWOL.  An additional review of the military records reveals the applicant refused to obey orders on several occasions and performed guard duty without his gun.

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 indiscipline for which the applicant was discharged outweighs the positive aspects of his service.  Furthermore, the Board notes that the applicant did not complete his Vietnam tour because of his misconduct.

2.  Absent evidence that at the time of the discharge or the behavior that led to the discharge the applicant was so impaired by mental, emotional, psychiatric or psychological problems that he could not both tell right from wrong and adhere to the right the mental health issue does not demonstrate an error or an injustice in the discharge.

3.  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.

4. Prior to reaching a determination that it was not in the interest of justice to excuse the failure to timely file, the Board looked at an entire file.  The Board considers the statute of limitations only after all other aspects had been considered and it had been concluded that there is basis to recommend a correction of the records.  When the Board determines that an error or injustice exists, it routinely recommends relief in spite of a failure to submit the application within the 3-year time limit.  Although the decisional document does not state that the Board considered the merits of the case, the display of the pertinent details of applicant’s service record, the circumstances of the discharge and the regulation governing the discharge tends to show that it did.  The Board does not deny applications simply because they were not submitted within 3 yeas.  Furthermore, arguments about failure to timely file are moot, because this review of the entire case is a consideration of the merits.

5.  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.

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

__JNS __  ___ MDM  __MW___  DENY APPLICATION

                                                                        Carl W. S. Chun
                                                         Director, Army Board for Correction
                                                                       of Military Records

INDEX

CASE ID	AR1999029175	
SUFFIX		
RECON	 	
DATE BOARDED	20000524	
TYPE OF DISCHARGE	(UD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.		
3.		
4.		
5.		
6.