MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           11 December 2001                   
	DOCKET NUMBER:   AR2001064395

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Ronald E. Blakely		Member	
	Mr. Thomas E. O’Shaughnessy, Jr.		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 for an upgrade of his dishonorable discharge.

APPLICANT STATES:  That he was recently diagnosed with post-traumatic stress disorder (PTSD) related to his service in Vietnam.  He feels his PTSD was not taken into consideration when his earlier request was denied.  He provides the Department of Veterans Affairs (VA) rating decision and report of examination as supporting evidence. 

COUNSEL CONTENDS:  That PTSD was not widely diagnosed or understood at the time of the applicant’s conviction and discharge.  The applicant reacted in a split moment to a man holding a gun to his face.  The applicant’s first shot was instinctive.  The second and third shots were intentional but occurred directly after the intense situation in which he could have lost his life.  He was in shock, not in a sound or normal state of mind, and still acting out of instinct and panic when he fired those other shots.  Counsel contends that there was a relationship between his actions and his PTSD.

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 15 September 1999 (docket number AR1999023484).

Effective 5 December 1996, the VA awarded the applicant a 30 percent disability rating for PTSD.  

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 evidence provided shows that the VA awarded the applicant a disability rating for PTSD effective 5 December 1996.  The evidence does not show that the applicant’s PTSD manifested itself during or before the incident for which he was court-martialed in 1973.  

2.  Counsel brings up a credible point that the applicant was in shock, not in a sound or normal state of mind, and still acting out of instinct and panic when he fired the second and third shots.  However, that is a contention that relates to evidentiary matters which should have been brought up in the trial and/or finally and conclusively adjudicated in the court-martial appellate process and furnishes no basis for recharacterization of the discharge.  

3.  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.
4.  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

__kak___  __reb___  __teo___  DENY APPLICATION

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

INDEX

CASE ID	AR2001064395	
SUFFIX		
RECON		
DATE BOARDED	20011211	
TYPE OF DISCHARGE	DD	
DATE OF DISCHARGE	19740611	
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	105.00	
2.		
3.		
4.		
5.		
6.