MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:           25 May 2000                   
	DOCKET NUMBER:   AR1999032417

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Elzey J. Arledge, Jr. 		Chairperson	
	Mr. Ernest W. Lutz, Jr. 		Member	
	Mr. Kenneth L. Wright 		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, and upgrade of her general discharge to honorable.

APPLICANT STATES:  In effect, she states that she has service connected disabilities – post traumatic stress disorder (PTSD), and lung disease.  She states that her commanding officer sexually harassed her and required her to perform extra duty in below zero degree weather.  She was acquitted by a court-martial and then received a general discharge.  She was the victim of months of sexual harassment that ruined her physical and mental health.   

COUNSEL CONTENDS:  (COUNSEL’S BRIEF IS AT PAGE 132 OF THE PETITION).  That the applicant was unlawfully discharged for unsuitability without counseling, and not on her own request without a board hearing.  She was discharged without receiving a full medical and neuropsychiatric evaluation for chronic pulmonary disease and chronic PTSD.  Her discharge was contrary to Army regulations and she would have received an honorable discharge under current regulations.  She was disabled as a result of a service connected chronic pulmonary disease and PTSD, is now receiving social security disability and an award of VA pension benefits.  Her claim for VA compensation is pending before the board of Veterans Appeals.

Counsel recounts the applicant’s record of service, the incidents at Camp McCoy, Wisconsin, in which she alleged sexual harassment, punitive extra duty, pneumonia; her AWOL, and the circumstances leading up to her discharge.   

Counsel relates the history of the applicant’s treatment for lung problems, her non-service connected disability pension from the VA because of her 1973 mastectomy, and her PTSD, and the treatment for PTSD that began in      October of 1997.

Counsel argues that she should receive disability retirement, that her medical records show two hospitalizations for unspecified conditions in September and December 1951, that her sworn statement shows that she sought aid for anxiety reaction.  Counsel states that she did not waive the right to seek a medical board for her disorder, and in fact signed a statement that she should make a VA claim for disability after her discharge.  She had a substantial probability of prevailing on the merits of her claim.  Counsel states that the applicant had sworn under oath that she received no counseling before submitting to a pre-separation physical examination, nor did she receive any advice about accepting a general discharge.  Under current standards she would have received counseling, and would have been entitled to present her case to an administrative discharge board.  Her discharge stigmatizes her and is punitive in nature.  She was improperly given a general discharge due to a lack of notice (as now prescribed in Army Regulation 635-200).  Within a few weeks of her court martial she was processed for a discharge for unsuitability without any indication she had applied for such a discharge.  Counsel states that her record shows that she was not charged with a court-martial offense.  There is no doubt that she would have been afforded more lenient treatment for her AWOL today under the provisions of AR 635-200.  She could have been discharged for the good of the service.  She was processed against her will for a discharge for unsuitability.  She was improperly discharged without a comprehensive physical and mental evaluation.  There is no evidence that she was questioned about her past medical history or that she was referred to a medical board for evaluation.  Her mental condition would have prevented her from remaining in the Army.  She left the Army suffering from a chronic anxiety disorder and was entitled to a medical evaluation board, which was not given.

Her physical examination was not properly conducted in that detailed information about the reasons for considering her for separation was not provided to the examining medical officer.  Her record does not show that she received a psychiatric assessment prior to her discharge, despite the fact that her court- martial defense was based on a demonstration that her AWOL was due to a psycho-social stressor.  Her VA file shows information that she was seriously ill at the time of her discharge.

Counsel provides an example of the case of a woman in the Air Force in which the Court of Claims reversed a decision by the Air Force Board for Correction of Military Records.  

Counsel provides the 18 April 1997 description of her condition by a physician in which that doctor stated that the applicant came down with goiter, that all of her hair fell out, her lungs deteriorated, and she contracted some sort of very rare bacteria.  When she left the military she had a life of constant movement, terrified that her commanding officer would find her.  She experienced various symptoms throughout the years, to include recurring and distressing intrusive thoughts about finding and injuring or killing her commanding officer.  She lived in terrible fear.  She had severe concentration problems, and it was very difficult for her to read.  When she was reminded of her military service, she had panic attacks.

Counsel states, in effect, that the applicant should receive physical disability retirement or separation.

EVIDENCE OF RECORD: The applicant's military records were lost or destroyed in the National Personnel Records Center fire of 1973.  Information herein was obtained from reconstructed personnel records, and the records provided by the applicant and her counsel.  

A 17 October 1952 extract from sick reports shows that the applicant was on sick call on 24 September 1951 and 5 December 1951 and was returned to duty on both occasions.  She was treated for nausea on 22 April 1952. 
A 22 May 1952 report of medical examination shows that the applicant was medically qualified for discharge with a physical profile serial of 1 1 1 1 1 1.  That report shows that she had no history of allergy, tuberculosis, or nervous condition, that she was below the standard for her height and weight, but not below the minimum standard, and that she had no significant abnormality.

The applicant was discharged at Fort Meade, Maryland on 22 May 1952 with a general (under honorable conditions) discharge under the provisions of Army Regulation 615-369.  She had 11 months and 8 days of service and 53 days of lost time. 

In a 2 September 1952 rating decision the VA indicated that there was no evidence that the applicant suffered a broken nose while in the service, and also indicated that she had been examined on 27 March 1952 and no psychiatric disorder was found; however, she did have a character disorder, immaturity reaction manifested by impulsiveness, passive obstructionism and resentment.  She was notified that service connection had not been established.

An April 1973 medical report indicates that the applicant had no evidence of lytic or blastic osseous metastases. A 9 January 1974 report shows that she had no evidence of metastatic disease.  A 14 March 1974 report indicates that she was under treatment for a recent left radical mastectomy, cervical and thoracic arthritis, alopecia, hypothyroidism, and acute anxiety attacks and depressive episodes, and that she was unable to work.  An 18 April 1974 VA rating decision indicates that she was entitled to a nonservice connection pension for the aforementioned ailments.

On 8 December 1980 the VA notified her that she was not entitled to a service connected disability.

An 8 January 1997 radiology report shows the applicant had evidence of nodular densities bilaterally, and some density in the region of the right middle lobe and biapical pleural thickening.  On 7 March 1997 she filed a claim with the VA for post traumatic stress disorder (PTSD) because of sexual harassment while in the Army, for lung damage from pneumonia, fibrosis of both lungs, bronchitis, apacal scarring, and tuberculosis, among other conditions.  She stated that she developed pneumonia due to harsh punishment administered because she avoided the sexual advances of an Army major while at Camp McCoy, Wisconsin.  She was sick, lost weight, and left the camp. She was court-martialed, but received a general discharge.  She told the board that she was sick because of the punishment that she received because she refused the sexual advances of the major.  She was healthy when she went into the service, with no lung problems.  The lung damage resulted from pneumonia.  She was not treated for that ailment, because she was unaware she had it.  She was sick, but not allowed to go on sick call.  She has had panic attacks.  Her health was affected and she had to quit work at age 47, affecting her income and her ability to purchase medicine.  

An 18 April 1997 report of a mental disorders examination shows that the applicant was diagnosed as having an adjustment disorder, chronic, and an anxiety disorder; hypothyroidism, bronchiectasis, pulmonary fibrosis, status post mycobacterium avium infection, history of breast cancer; and psychosocial stressors, mild to moderate.       

On 11 August 1997 the VA notified the applicant that her claim for service connected disabilities for PTSD and any lung condition was denied, and compensation was not payable.  On 10 September 1997 the VA again denied service connection for the aforementioned disabilities.  In a supplemental statement of her case, the VA, on 12 February 1998, again denied her claim. 

On 2 February 1998 a member of Congress was notified that the applicant’s military records were apparently lost in the 1973 fire at St. Louis; that there was a ten year retention period for transcripts of summary courts martial and special courts martial (that do not result in a Bad Conduct Discharge), and those transcripts had since been destroyed.  A search was made for transcripts of general court martial records; however, there is no information that the applicant received a general court martial.

In a 7 April 1998 report a doctor described her as being depressed, mostly in remission, and as having PTSD.

In a 5 October 1999 sworn statement, the applicant stated that her commanding officer, a female major, at Camp McCoy, Wisconsin, made sexual advances to her, and when she refused to become intimate with her, her commanding officer assigned her punitive extra duty, to include duty outside when the temperature was minus 30 degrees.  She became ill, tried to go on sick call, and her commanding officer threw her out of bed because she took to bed when she was ill.  She lost sleep and lost weight, and worried a lot.  She went on sick call for treatment for anxiety on 14 September 1951.  She went AWOL in the winter of 1952, turned herself in and was court-martialed, but not convicted, but instead discharged.  Even though she told the examining physician about the incident at Fort McCoy and her pneumonia, someone indicated on her separation physical that there was no history of allergy, tuberculosis, or nervous disorder.  She stated that she had a chronic lung problem form 1952 through 1999 and had been treated by various doctors at various medical facilities.  She was receiving a nonservice connected pension from the VA.  However, she was diagnosed and treated for PTSD in October 1997 by a doctor because of the 1951-1952 unwanted sexual advances.

Army Regulation 615-369, then in effect, provided the policy and procedures for the administrative separation of enlisted personnel for inaptitude, unsuitability
(which meant a lack of the required degree of adaptability) or enuresis.  Lack of adaptability could be caused by insufficient physical stamina; transient personality reactions; or character and behavior disorders such as schizoid, paranoid, cyclothymic, inadequate and immature personalities.  The regulation
could not be applied to persons who had any disqualifying mental or physical defect.  Although a general discharge was customary for separation under this regulation, an honorable discharge was authorized. 

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of her 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, she must be unable to perform the duties of her 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, her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that she was unable to perform her 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.

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.

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 to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  Neither the applicant nor counsel has provided information or evidence to show otherwise.  Notwithstanding counsel’s arguments, there is no evidence that her discharge was unlawful or contrary to Army regulations in effect at that time.

2.  The applicant’s report of physical examination does not indicate any medical condition incurred while entitled to receive basic pay which was so severe as to render the applicant medically unfit for retention on active duty.  At the time of the separation physical examination, competent medical authority determined that the applicant was then medically fit for retention or appropriate separation.  Accordingly, the applicant was separated from active duty for reasons other than physical disability.  

3.  The applicant was medically fit for retention at the time of her separation.  Neither the applicant nor counsel has submitted any probative medical evidence to the contrary.                                           

4.  The Board notes that the applicant has not been awarded a service connected disability rating by the VA.  Nevertheless, an 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.

5.  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.

6.  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.

7.  Neither the applicant nor counsel has submitted probative evidence or a convincing argument in support of her request.   

8.  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.

9.  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

___ewl__  ___klw___  ___eja___  DENY APPLICATION

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

INDEX

CASE ID	AR1999032417	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000525	
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.  189 	110.00	
2.	108.00	
3.		
4.		
5.		
6.