MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            31 May 2000                  
	DOCKET NUMBER:   AR2000035207

	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	
	Mr. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. James E. Vick		Chairperson	
	Mr. Stanley Kelley 		Member	
	Mr. John P. Infante		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 previous application to correct his records by upgrading his discharge.

APPLICANT STATES: In effect, that his misconduct was due to post traumatic stress disorder (PTSD) that resulted from a sexual assault.  That his transfer from Berlin was intended as punishment because he reported the incident.

COUNSEL CONTENDS:  In effect, that the applicant was not mentally responsible for the behavior that led to his discharge.  They again refer to a  psychological test report that was submitted with the previous application.  They also submit copies of several service record documents including:  

•	Part of his enlistment contract showing that he enlisted under assignment of choice option for the Berlin Brigade.
•	21 April 1982 orders transferring the applicant from Berlin to the 22nd Engineer Battalion, Hanau, Germany
•	A 4 May 1982 letter from the Secretary of the Army (Congressional Liaison) to a member of congress. 
•	Part of a VA 28 January 1998 rating decision granting him service connection for treatment purposes for PTSD and residuals of a head injury.
•	A 21 February 1984 DA Form 268 (Report of Suspension of Favorable Actions) showing that the applicant was AWOL as of 14 February 1984.
•	A 12 December 1983 medical discharge report from the University of Cincinnati Hospital showing the applicant was admitted with a diagnosis of head injury/multiple abrasions and was transferred to Fort Knox, Kentucky that same day.

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 22 July 1999 (COPY ATTACHED).

The submissions contain new evidence that requires Board consideration.

The 4 May 1982 letter from the Office of The Secretary of the Army to a member of congress reads:  
	
This replies to your inquiry in behalf of [the applicant] who corresponded with you concerning an alleged assault and reassignment.

           Officials in Germany advised that the incident which prompted this inquiry occurred on 24 December 1981 in the early evening hours in the barracks of the 42d Engineer Company.  At about 5:30 p.m. approximately eight soldiers of the company gathered in one of their rooms and, in an atmosphere of mischievous fun began to administer “pink bellies” to some of the newer members of the group.  One of those new members was [the applicant].  A “pink belly” is described as the process consisting of slapping the midsection of an individual to cause stinging and redness.  No malice was intended, and apparently none of the recipients bore any hard feelings or discontent at that time.  A short time later, this group was together in another room and [the applicant] was perceived to be taunting other members of the group.  At this point, approximately four members of the group decided to repay [the applicant]’s taunts with another “pink belly.”  He protested and in the ensuing scuffle, someone in the group pulled down [the applicant]’s pants and underpants and threatened to “shove” a wine bottle up his rectum, if he did not settle down.  The threat cannot be attributed to any single individual.  [The applicant] was never actually penetrated with the bottle.

		Following this altercation, an investigation by both the unit and the Berlin Resident Agency, 2d. Region U.S. Army Criminal Investigation Detachment was conducted.  As a result of these investigations, the other members of the group were required to replace [the applicant’s] damaged clothing and had their pass privileges suspended for two weeks for their involvement with the “pink bellies.”  All individuals involved, including [the applicant], were counseled and given specific orders not to participate in such activities again.  The company commander determined that there was insufficient evidence to warrant judicial or non-judicial action.  The matter was considered closed.

		[The applicant] was asked during the investigation, if he wanted to apply for a discharge or a reassignment to West Germany.  He indicated that at that time he did not desire either; however, he would like to be reassigned to a specific location in the United States.  Unfortunately, reassignment to the United States could not be authorized: however [the applicant] was reassigned to another platoon within 42d Engineer Company.

		On 7 April 1981, [the applicant] was counseled once again by the company commander concerning reassignment to West Germany.  [The applicant] stated that because he was in a life threatening environment he would like to be reassigned.  Therefore, his unit is initiating a request to transfer him from Berlin to West Germany.  However, it should be noted that he continues to consort with the same group of soldiers that he alleges threatens him.  [The applicant’s] chain of command will monitor this situation closely until a transfer has been affected. 

		I trust this will be of assistance.

The 4 June 1998 Psychological Evaluation  indicated that it had been conducted at counsel’s request for the purpose of obtaining benefits from the VA.  The applicant understood that obtaining benefits, rather than treatment, was the purpose of the evaluation.

The report listed the documentation available as including the above letter and various hospitalization and evaluation reports.

The examiner then listed findings from those documents including the following:

•	“On December 24, 1981 [the applicant] reported being sexually assaulted by five other service men.  Also while in the service December 1993, he was involved in an automobile accident in which he suffered head injuries.  [The applicant] went AWOL beginning in February 1984, following both stressful events.The Department of Veterans Affairs Statement in Support of Claim indicates that [the applicant] perceives that the cause of all (his problems to be the) mental anguish he went through in the service, spent approximately twelve month post-service discharge under treatment for his emotional condition at the Hamilton County Mental Health Clinic in Cincinnati, Ohio.”

•	He was hospitalized for a suicidal overdose on March 29, 1990.  He reported the “sexual assault” incident in the Army in 1991.  He was diagnosed with  possible PTSD and possible dysthymia.

•	
A narrative summary from the P.S. Lewis Center dated 
13 December 1993 carried a diagnosis of  “Reactive Depression, rule out Dysthymic Depression with suicidal ideation.”  The applicant reported that he lived with his girlfriend, an alcoholic, who had been suicidal.  This he related to his sister’s death.  She had died in an alcohol related incident several years ago.  He reported recent increased depression, disturbed sleep, nightmares and flashbacks of the in-service incident.

•	Another 13 December 1993 psychiatric examination produced a diagnosis of  “Reactive Depression rule out Dysthymic Depression” and noted that the precipitant for the admission was “an anniversary reaction when he was molested while he was in the Army ten years agoon Christmas Eve” 

•	 At a 21 December 1993 admission at the University of Cincinnati Hospital Department of Psychiatry the applicant was accompanied by his parents.  He had checked himself out against medical advice at the Lewis Center on 16 December 1993.  An initial evaluation rendered a diagnosis of major depression.

•	An April 1994 emergency room visit produced a diagnosis of severe personality disorder.

•	He was admitted for suicidal and homicidal ideation in October 1994.  He reported a long psychiatric history that he feels dates back through time, he was seven years old when he saw a man get murdered.”  He reported treatment when he left the armed forces and in 1990 and 1993.  He related his diagnosis as PTSD

The 4 June 1998 Psychological Evaluation continued by reporting that the applicant described the in-service incident.  He did not recall whether or not he had been drinking.  During the “pink belly’ incident some other enlisted men came into the room.  They held him down and cut his pants and underwear off.  They then shoved a wine bottle up his rectum.  He tried to get away.  They set his shoes on fire while he was wearing them.  He eventually got away.  He called his squad leader and reported the incident but the squad leader did nothing.

He reported that prior to this incident he drank two beers per day.  Following the incident he started drinking a case of beer a day.  Following the incident he had frequent nightmares.  He still has nightmares once or twice a week, always about that incident.  Since the incident he reacts to threatening situations or individuals by drinking.  He breaks things when he gets drunk.  Sometimes he will just “lose touch with where he is at” and will walk out into traffic without seeing the cars.

The applicant reported a family history as follows: He asserted that his biological father had difficulty with alcohol.  His father was a truck driver and was always absent workinghis mother physically abused him slapping him around and hitting him for no apparent reasonshe has been treated for mental illness and hospitalized twice.

Counsel indicated, in a telephone conversation with the case analyst, that he would attempt to obtain records of the reported 1983 mental health treatment and the 1984 denial of VA benefits.  

Counsel furnished records showing that the applicant was treated in  1983, 1985 and 1986 for post-traumatic headaches.  The 1986 records make reference to alcohol abuse, depressive symptoms and mental health treatment at Central Community Health Board, a mental health agency in Cincinnati. 

Subsequently counsel submitted a facsimile from the Central Community Health Board indicating that the only record available was the date of admission, 12 September 1985, and termination 17 July 1986.  No details were available.  All other records had been purged when 7 years old.  
 
Army Regulation 635-40, paragraph 4-2, precludes physical disability processing or continuing disability processing of an enlisted member who is being processed for administrative separation under any regulatory provision that authorizes separation under other than honorable conditions.  The only exceptions are when the officer exercising general court-martial jurisdiction (who may not delegate this authority) finds that the disability was the cause or a substantial contributing cause of the pertinent misconduct or that other circumstances warrant disability processing.

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.  In the absence of evidence that at the time of the discharge or the behavior that led to the discharge the applicant was so impaired by mental, emotional, psychological or psychiatric problems that he could not 
both tell right from wrong and adhere to the right, the mental argument that mental problems and/or PTSD mitigates or excuses his misconduct  does not demonstrate an error or an injustice in the discharge.

2.  There is no evidence that the applicant was the victim of a sexual assault.  The evidence he submits, the 4 May 1982 letter to the congressman, does not support that version of events.  It is also shows that his transfer from Berlin was not punishment.  

3.  The report to the congressman also notes that four months after the “pink belly” incident the applicant was still known to “consort with the same group of soldiers that he alleges threatens him.”  The AWOL that apparently led to his discharge did not occur until approximately 27 months after the incident.  These two facts combined tend to show that there is not a causative relationship between the two events.

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

_VEK___  ___SK___  __JPI___  DENY APPLICATION

Karl F. Schneider
   Director, Army Review Board Agency

	AR2000035207	
		
RECON		
DATE BOARDED	20000331	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	108.04	
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