MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:             7 June 2000                  
	DOCKET NUMBER:    AR1999034508

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Edwin S. Castle		Member	
	Mr. James P. Stueve		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, that his undesirable discharge be corrected to a medical retirement.

APPLICANT STATES:  He served as the crew chief of a dust off helicopter in Vietnam.  When he was released from active duty to join an ARNG unit, he was unable to function at all, which he later discovered was the result of Post Traumatic Stress Disorder (PTSD).  After 6 months, his depression became so bad that he reenlisted, hoping to put some purpose in his life.  However, his flashbacks from Vietnam became so vivid that he went AWOL to keep from having a nervous breakdown.  When he was returned to duty from AWOL he felt that his options were limited to suicide or an undesirable discharge.

In support of his application he submits documents from the Department of Veterans Affairs (DVA) which show that Department has awarded him a 100 percent disability rating for PTSD.

COUNSEL CONTENDS:  That based on the applicant’s strong contention that he suffered from PTSD while on active duty, all reasonable doubt should be resolved in his favor.

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted for 2 years in the Regular Army on 24 July 1970, was awarded the military occupational specialty of helicopter repairman, and was promoted to pay grade E-4.  He served in Vietnam from 4 January to 16 December 1971.  He was honorably released from active duty on 2 February 1972 and transferred to an ARNG unit.

He reenlisted in the Regular Army on 20 November 1972 with a cash bonus.

On 22 January 1973 the applicant accepted nonjudicial punishment (NJP) under Article 15, UCMJ, for willfully destroying by violence a latrine window, and for failing to go at the time prescribed to his appointed place of duty.

On 24 April 1973 the applicant again accepted NJP for being disrespectful towards a senior NCO by making mocking gestures at him during a unit formation.

On 17 May 1973 the applicant accepted NJP for not being prepared for guard duty, resulting in his relief, and for failing to go at the time prescribed to his appointed place of duty.

On 23 May 1973 the applicant departed AWOL and remained AWOL through 2 June 1973.  

The applicant was counseled in writing on occasions for insubordination to all his superiors, immaturity, and childish behavior.  In a counseling session with his commander, the applicant stated that “After getting out of the service . . . [he] spent much of his time under the influence of narcotics."  He also stated that "he only came back in the service because he was out of funds.”  When counseled by the battalion commander the applicant stated that he wanted to be discharged as soon as possible, regardless of the type of discharge.  The applicant told the battalion commander that he had used drugs extensively and sees nothing wrong with their use.

On 11 June 1973, after undergoing a physical examination which determined that he was medically qualified for separation, the applicant was notified by his commander that he was recommending his discharge for unfitness and of his rights in conjunction with that recommendation.  The applicant waived all of his rights.  Accordingly, on 1 August 1973 the applicant was issued an Undesirable Discharge Certificate for Unfitness.

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. 

Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board.  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.  For example, a noncommissioned officer who receives above average evaluation reports and passes Army Physical Fitness Tests (which have been modified to comply with the individual’s physical profile limitations) after the individual was diagnosed as having the medical disqualification would probably be found to be fit for duty.  The fact that the individual has a medically disqualifying condition does not mandate the person’s separation from the service.  Fitness for duty, within the perimeters of the individual’s grade and military specialty, is the determining factor in regards to separation.  If the PEB determines that an individual is physically unfit, it recommends the percentage of disability to be awarded which, in turn, determines whether an individual will be discharged with severance pay or retired.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.    In this regard, the Army rates only conditions determined to be physically unfitting, thus compensating the individual for loss of a career.  Paragraph 4-3 of this regulation states that an enlisted soldier on whom elimination action that might result in a discharge under other than honorable conditions has been started may not be processed for physical disability processing.  Such a case is to be referred to the officer exercising general court-martial jurisdiction.  The general court-martial convening authority (GCMA) may authorize physical disability processing based only on finding that the disability is the cause or a substantial contributing cause of the misconduct or when specific circumstances warrant disability rather than administrative separation.   This authority may not be delegated.  A copy of the determination must be entered into the case file when it is forwarded.

Title 10, United States Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.

Title 10, United States Code, section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30 percent.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  The applicant’s pattern of misconduct certainly warranted his discharge for unfitness and a characterization of service of under other than honorable conditions (undesirable discharge).

2.  The applicant was given a separation physical examination and was determined medically qualified.  Without a finding of medical disqualification, there was no basis for referring him to a PEB.  In addition, he would not have been eligible for consideration by a PEB since he was pending a discharge under other than honorable conditions.

3.  The fact that the VA granted the applicant a disability rating has no bearing on the Army.  The VA does not have to make a fitness for duty finding and may rate a veteran for a condition which may become an impairment for the veteran well after his or her separation from active duty.

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

___mkp _  ___esc __  ____jps _  DENY APPLICATION

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

INDEX

CASE ID	AR1999034508	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000607	
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.	A51.00	
2.	A93.23	
3.	A92.07	
4.	A92.19	
5.		
6.