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									                        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)
ABCMR                                   Memorandum                                    of
AR1999032417
Consideration (cont)

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
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ABCMR                                     Memorandum                                      of
AR1999032417
Consideration (cont)

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
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ABCMR                                    Memorandum                                      of
AR1999032417
Consideration (cont)

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;
                                           4
ABCMR                                    Memorandum                                      of
AR1999032417
Consideration (cont)

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


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ABCMR                                    Memorandum                                      of
AR1999032417
Consideration (cont)

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.




                                             6
ABCMR                                    Memorandum                                     of
AR1999032417
Consideration (cont)

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.

                                            7
ABCMR                                     Memorandum                                       of
AR1999032417
Consideration (cont)

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




                                              8
ABCMR                           Memorandum                    of
AR1999032417
Consideration (cont)


                                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.




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