MEMORANDUM OF CONSIDERATION

IN THE CASE OF:   

BOARD DATE:          2 December 1999
DOCKET NUMBER:  AR1999014766

	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. Loren G. Harrell		Director	
	Mr. Gerald E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Ms. Sherri V. Ward		Chairperson	
	Mr. Van B. Cunningham		Member	
	Ms. Barbara J. Ellis		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, reconsideration of his application to change his undesirable discharge to physical disability separation or retirement or to upgrade it to general.  He also indicates that the date of his induction is incorrect and requests it be corrected.

APPLICANT STATES:  In effect, that not only is his period of service incorrectly indicated on his discharge document but that he should never been inducted into the service due to preexisting medical and mental conditions.  He contends that the two psychiatrists who saw him while on active duty indicated that he was suffering from schizophrenia.  He was not afforded treatment for this condition or his other medical/dental conditions while on active duty.  The applicant cites regulations that he avers indicate criminal action at both the time of his induction and improper handling of his final discharge.  In effect, he avers that he has records to indicate that he was twice determined to be medically unfit for duty.  He contends that this together with the finding of unfitness on his induction physical indicates that he should not have been inducted but because he was inducted he should have received care for the conditions and that this now warrants physical disability retirement.  The applicant further reports a family history of child abuse, which he contends impacted on his ability to serve.

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 21 December 1994 (COPY ATTACHED).

The applicant’s request is essentially the same to his prior request.  The applicant submits copies of his induction examination, a 9 June 1968 Clinical Record, a 13 May 1998 VA Medical Record – Discharge Instructions form, a 18 May 1998 private psychosocial assessment, a private eye examination and assessment and multiple lengthy personal statements outlining his contentions.  The VA and private medical records were not available to the Board previously; thus constituting new evidence that requires Board review.

The applicant’s induction Report of Medical Examination, dated 6 July 1967, indicates that he was originally disqualified for service due to acute urethritis and ordered to report back in two weeks.  He had additional testing preformed and was found to be suffering from a non-correctable congenital deformity of his teeth, lower lumbar dextroscoliosis (a curvature of the spine to the right), and defective vision shade blindness (red - green color blindness).  These conditions disqualified him for immediate induction and the report shows that he was again deferred on 2 November 1967.  An additional evaluation was undertaken and the applicant was accepted for induction on 3 January 1968.  The conditions noted on 

the report were signed off as to be not considered disqualifying (NCD) by the medical officer who preformed both the first and final examination.

An undated dental worksheet, submitted by the applicant, indicates that the applicant had Periodontoclasia (an inflammation accompanied by degenerative and retrogressive changes of the structures that support the teeth).  It also reports that the applicant has active syphilis and gonorrhea and states that the applicant should not have been admitted into the service.  This statement has no identifying information as to the patient nor is it signed. Additionally it differs from document submitted with the prior application in the nature of typeface and informational content.

The applicant submitted a copy of a Consultation Sheet (Standard Form 513) dated 9 January 1968, that states that the applicant requested to be confined because he doesn’t trust himself, that he feels angry and can’t stand being in a crowd.  The referral indicated that the applicant had reported a family history of schizophrenia.  The consultation portion of the report is blank.  Associated with this report is a Chronological Record of Medical Care (Standard Form 600), dated 10 January 1968, which states “Psychariatic Diagnosis – from studinbg earlier symptoms, he has early stages of schizophrenia.”  (NOTE: Errors in spelling are as typed on the form).  Additionally, this document appears to differ from the copy of the same document previously submitted.

The VA records, dated 5/6/98, show the diagnoses of a dissociative disorder and PTSD from childhood trauma, alcohol dependence, personality disorder with paranoid schizotypal traits, red-green color vision confusion, a history of scoliosis, dental caries and substernal thyroid.

A copy of a St. John’s Behavioral Health Care Psychosocial Assessment, dated 18 May 1998, was submitted that gives an assessment based upon the applicant’s personal statements rendered the diagnoses of a dissociative disorder with fugue episodes, post traumatic stress disorder (from childhood trauma), personality disorder with schizotypal and paranoid traits, thyroid problems, color blindness and dental problems.  It reports “These post-traumatic symptoms were exacerbated by his induction into the military and reinforced by his experiences of two tours in Vietnam.”  “Though the childhood experiences are the primary source of his trauma, the military did find him fit for duty and sent him to the stressful environment of Vietnam which certainly reflects a service connection to his problems.”

A copy of a report from The Vision Clinic was submitted that states that copies of Army medical record were reviewed and an eye exam was conducted.  This exam rendered a diagnosis of red-green color vision confusion.  It states that this is a serious condition in every day living and indicated that the condition was aggravated by the applicant’s service in Vietnam.  It states “I can not understand why the army inducted him and then refused to offer treatment.  I feel his rights were violated and he should get treatment by any VA”.  Certain facts in this report caused a Board staff member to question the validity of the document.  A member of the staff contacted the clinic and forwarded a copy of the document to them for validation.  The response from the doctor, purported to have written this letter, indicates that he did not make such a statement nor did this report originate from his office. 

Army Regulation 635-40, (Physical Evaluation for Retention or Separation) paragraph 2-2b, as amended, provides that 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.

Army Regulation 635-40 provides in paragraph 4-3 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.

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 applicant’s allegation that he was inducted on 6 July 1967 not 3 January 1968 is without merit.  The date of an examination to determine if a person is medically qualified for service is not necessarily the same as the date of induction.  The induction physical shows that the applicant was deferred on at least three occasions prior to final acceptance on 3 January 1968.  The Report of Medical Examination showed that he was deferred at least one additional time due to an acute urinary problem.  Although noted as having poor teeth, a back deformity, and a visual defect these conditions were not consider disqualifying (NCD).  The pre-induction period of 6 July 1967 to 3 January 1968 does not constitute creditable time for any military propose.

2.  Many of the documents submitted by the applicant are suspect as to their validity, authorship and content.  There are in some cases major differences in the copies submitted by the applicant at different times as well as differing from the copies that are a part of the applicant’s official military record.  The following are examples of concerns noted:

a.  The nomenclature used in several supposed medical documents is not consistent with standard military or medical usage.

b.  The typeface of the dental service checklist, submitted with this application, differs significantly from the copy of the same purported item submitted in concert with the applicant’s 1994 application.  The earlier copy appears to be consistent with a document that was reproduced on a mimeograph, the most common practice of that period, it has consistent size typeface which differs significantly from the later submission which has multiple fonts and sizes of type found in current use.  Most importantly the current submission contains notes and comments that are not on the earlier submission and relate to conditions noted nowhere else in the documentation submitted by the applicant.

c.  The applicant has submitted several copies of a Request for Consultation (SF 513) in the course of his requests which are also suspect.  Some copies of this form have what appears to be some type of response or notation in the consultation report block which either did not copy or was partially masked in copying.  On another copy, these markings appear to have been completely blanked out as the area for response on that copy is almost completely clear of any marks.  None of the copies are consistent from one to the next.

d.  The purported follow-up document, an SF 600, not only would not have been the proper form to be used for this type of follow-up report, but the nomenclature is not consistent with usual standard medical notations.  The report is typed, unlike the consultation form, and “signed” with either a facsimile stamp or typed in script of the name of the doctor who requested the psychological evaluation.  Neither of these forms of signature are in compliance with regulations for a legal or complete signature as they do not include the doctor’s rank or indication of being a medical corps officer as noted on the stamped signature on the SF 513.  Additionally the physician requesting the consultation would not be the same one who was making the diagnosis.

3.  The applicant repeatedly avers that he was seen on active duty for schizophrenia, however, he has not submitted any believable documentation to substantiate this other than his own personal statements.  Nor has he submitted any information that he is currently diagnosed with this condition.

4.  The applicant was being processed for elimination for misconduct and submitted a request for discharge in lieu of court-martial, which was accepted.  The pages of the SF 513’s that state that the service member is qualified for separation are of little or no value.  They are only one page of a four-page packet and do not have any indication of who was examined or when the examinations were conducted.  Even accepting them at face value they do not indicate any disqualifying factors or any findings of unfitness. 

5.  The applicant has submitted no evidence to show that he was suffering from any condition while on active duty that should have been referred for disability separation or retirement.  His contention that the medical conditions found at the time of induction rendered him unfit for service is belied by the fact that he served honorably for almost two years then under went an reenlistment examination and was accepted for reenlistment.  He had not only reenlisted but had been promoted to E-5 and had earned an Army Commendation Medal.  His enlisted conduct and efficiency ratings prior to his first AWOL period were reported as excellent which further demonstrates that the conditions noted on his entrance exam did not interfere with the performance of his duties.

6.  Further, the applicant has submitted no evidence that he was or is suffering from schizophrenia.  Neither the military nor the VA records nor the private psychosocial assessment affords the applicant a diagnosis of schizophrenia.  Both the VA records and the private psychosocial assessment indicate that the applicant has a personality disorder with schizotypal and paranoid traits.  While a personality disorder could render a determination of unfitness for continued service, personality disorders are not normally considered as conditions for which disability retirement or service connection, by the VA, is granted. 

7.  Even if the applicant’s contentions and allegations were accepted without question, unless it was determined, by the court-martial authority, that his misconduct was the result of a medical, psychological or psychiatric condition, he is precluded from a physical disability processing due to the charges that were pending.  There is no evidence such a consideration was made nor is there any evidence that such a determination is warranted.

8.  The applicant’s abused background is noted but in the absence of evidence that he was unable to tell right from wrong or to adhere to the right, it does not demonstrate an error or inequity in the decision.

9.  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.

10.  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

__svw___  ___vbc__  ___bje___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999014766	
SUFFIX		
RECON	 	
DATE BOARDED	19991202 	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19730312	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.