PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:           6 February 2001                  
	DOCKET NUMBER:   AR2000045091

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mr. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas Lanyi		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests physical disability discharge.  He also requests that his record be corrected to show award of the Purple Heart.      

3.  The applicant states that his physical examination was not conducted by a psychiatrist, thereby making his discharge for unsuitability invalid.  He suffers from post traumatic stress disorder (PTSD) and character and behavior disorders.  He submits a copy of a certificate awarding him the Purple Heart for wounds received in action on 24 October 1968.

4.  The applicant’s military records show that he entered on active duty on           2 April 1968, completed training, and in September of that year was assigned to an artillery battalion in Vietnam as an armorer.  He was promoted to pay        grade E-4 on 1 August 1968.

5.  While assigned to the Medical Holding Detachment at North Camp Drake in Japan, he received nonjudicial punishment under Article 15, UCMJ,  on             25 November 1968 for being absent from his ward.  On 3 January 1969 the applicant received nonjudicial punishment for missing movement of his aircraft to transport him to his next assignment.  

6.  On 18 June 1969 the applicant, then assigned to Battery C, 2nd Battalion,   13th Artillery, received nonjudicial punishment for willfully disobeying a lawful command. 

7.  The applicant returned to the United States and in October 1969 was assigned to an artillery battalion at Fort Carson, Colorado.

8.  On 6 July 1970 an assistant Staff Judge Advocate at Fort Carson requested that the applicant be temporarily released from pre-trial confinement and sent to Fitzsimons General Hospital for an electroencephalogram.  That officer stated that the applicant was wounded in the head in Vietnam, and still had shrapnel in his head.  He suffered a nervous breakdown in Vietnam, visited the psychiatrist on numerous occasions while in Vietnam, and suffered from severe headaches ever since he had been wounded.  That officer also stated that there was a need for further psychiatric evaluation of the applicant.  He stated that the applicant’s family had a history of insanity. 

9.  The applicant was arraigned and tried before a special court-martial which convened at Fort Carson on 20 July 1970.  He pled guilty to the charge of unlawfully striking another soldier on the mouth.

10.  On 22 July 1970 the applicant’s commanding officer recommended that the applicant be eliminated from the Army for unsuitability under the provisions of Army Regulation 635-212.  He stated that the applicant’s discharge was recommended because of character and behavior disorders.  That officer cited the applicant’s unsatisfactory performance, stated that he had been counseled on numerous occasions, and stated that his military superiors agreed that further rehabilitation efforts would be useless and that the applicant was unsuited for further military service.  He stated that the applicant’s appearance and bearing were characterized by a pattern of being unable to adjust to military life.  He recommended that the applicant receive a general discharge.  The list of enclosures to that recommendation indicates that a psychiatric evaluation and a physical examination on the applicant were accomplished.

11.  An 11 August 1970 neuropsychiatric report shows that the applicant was diagnosed as having a passive-aggressive personality.  It indicated that he was wounded in Vietnam in a ground attack and had complained of headaches since his return from Vietnam.  That report indicated that there was no indication of psychosis or prominent neurotic symptomatology.  There was no psychiatric condition that would warrant separation through medical channels.  The report stated that the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and that he had the mental capacity to understand and participate in board proceedings.  It indicated that the applicant was psychiatrically cleared for discharge and recommended that he be separated under the provisions of Army Regulation 635-212.  That report was signed by a private first class social worker/psychiatric specialist, and a medical corps captain, a psychiatrist.  

12.  On 17 August 1970 the applicant consulted with counsel and stated that he had been advised of the basis of the action to separate him for unsuitability, its effects and the rights available to him.  He waived consideration of his case by a board of officers and declined to submit statements in his own behalf.  He stated that he understood the nature and consequences of a discharge under conditions other than honorable. 

13.  The recommendation to discharge the applicant for unsuitability was approved by the separation authority on 1 October 1970.  He directed that the applicant be furnished a General Discharge Certificate. 

14.  The applicant was discharged on 12 October 1970 for unsuitability (character and behavior disorder as indicated by his separation code).  He had   2 years, 5 months, and 2 days of service and 39 days of lost time.  His              DD Form 214 does not show award of the Purple Heart.

15.  A 23 August 1999 copy of a VA hearing officer decision, which the applicant submits with his application, indicates that the VA has awarded the applicant a disability rating of 30 percent for PTSD, effective from 4 October 1972,               70 percent from 17 August 1993, and 100 percent from 11 June 1996.  He has also been awarded a 10 percent rating for residual scar, right hip and tender scar of abdomen with retained foreign body from 29 May 1975; and 10 percent for residual scar, right face with muscle volitantes from 12 May 1980.

16.  Army Regulation 600-8-22 provides that the Purple Heart is awarded for a wound sustained as a result of hostile action. Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment, and the medical treatment must have been made a matter of official record.

17.  Army Regulation 635-212, then in effect, set forth the policy and procedures for the administrative separation of enlisted personnel for unfitness and unsuitability.  It provided, in pertinent part, for the discharge due to unsuitability of those individuals with character and behavior disorders and disorders of intelligence as determined by medical authority.  When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.

18.  Army Regulation 635-200 was revised on 1 December 1976, following settlement of a civil suit. Thereafter, the type of discharge and the character of service was to be determined solely by the individual's military record during the current enlistment.  Further, any separation for unsuitability, based on personality disorder must include a diagnosis of a personality disorder made by a physician trained in psychiatry.  In connection with these changes, a Department of the Army Memorandum dated 14 January 1977, and better known as the Brotzman Memorandum, was promulgated.  It required retroactive application of revised policies, attitudes and changes in reviewing applications for upgrade of discharges based on personality disorders.  A second memorandum, dated        8 February 1978, and better known as the Nelson Memorandum, expanded the review policy and specified that the presence of a personality disorder diagnosis would justify upgrade of a discharge to fully honorable except in cases where there are "clear and demonstrable reasons" why a fully honorable discharge should not be given.  Conviction by general court-martial or by more than one special court-martial was determined to be "clear and demonstrable reasons" which would justify a less than fully honorable discharge.

19.  Army Regulation 635-200, currently in effect, states in pertinent part that the service of a soldier separated for personality disorder (not amounting to disability) will be characterized as honorable.

20.  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.

21.  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.

22.  Army Regulation 40-501 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.

23.  Army Regulation 635-40 states in pertinent part that disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to soldiers whose service is interrupted and they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  

24.  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.

25.  Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

CONCLUSIONS:

1.  Notwithstanding the lack of medical documentation, the preponderance of evidence shows that the applicant was wounded in Vietnam, and that he was awarded the Purple Heart.  That award should be reflected on his DD Form 214. 

2.  Notwithstanding the applicant’s contentions, the evidence indicates that he did receive an examination by a psychiatrist in accordance with regulations.  That official determined that he was cleared for discharge.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

3.  Nevertheless, the 1978 Nelson memorandum and the pertinent portion of the current Army Regulation 635-200 justifies an honorable characterization of service for a soldier separated for a personality disorder.  As such, this policy represents an enhancement of the applicant’s rights, and therefore, the applicant’s discharge should be upgraded to honorable.

4.  The applicant’s physical examination is not available.  However, in the absence of evidence to the contrary, it is presumed that the applicant was physically fit for separation.  His 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.

5.  The fact that the VA, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  It does not, in itself, establish physical unfitness for Department of the Army purposes.

6.  The award of VA compensation does not mandate disability retirement or separation from the Army.  The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation.  The VA is not required to determine fitness for duty at the time of separation.  The Army must find a member physically unfit before he can be medically retired or separated.

7.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

8.  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.

9.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by: 

     a.  showing that the applicant was awarded the Purple Heart for wounds received in action on 24 October 1968; and

     b.  upgrading his discharge under honorable conditions to honorable.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

___tl____  ___rvo___  ___wtm_  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000045091	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010206	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT 	
REVIEW AUTHORITY		
ISSUES         1.  177	107.00	
2.	108.00	
3.	110.00	
4.		
5.		
6.