MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:          3 October 2002
	DOCKET NUMBER:  AR2002071310

	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. Hubert S. Shaw, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Charles Gainor		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 earlier appeal to correct his military records by showing his injuries received on 13 November 1978 were in the line of duty.

APPLICANT STATES:  In effect, that the Traumatic Brain Injury Coordinator at the Department of Veterans Affairs (DVA) Medical Center at Tuscaloosa, Alabama [hereafter referred to as the DVA representative] will present his contentions.  

The DVA representative presented background information and questions in an undated letter to a Member of Congress.  Essentially, she raised questions regarding the applicant's mental health at the time of his enlistment, lack of treatment after several acts of indiscipline and failure by the Army to diagnose his condition even though it was clear that the applicant was on medication to control a personality disorder.

In support of the request for reconsideration by the Army Board for Correction of Military (ABCMR), the applicant submitted the undated letter previously referenced and a privacy release form.  Recently, the applicant also provided a video taped presentation to the ABCMR wherein the DVA representative and the applicant presented their contentions and questions similar to those in the letter to the Member of Congress.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in the Memorandum of Consideration reflecting the ABCMR's decision in the applicant's case during deliberations in Docket Number AR2001064825 on 5 February 2002.  

The DVA representative contends, in her opinion, that, after review of the ABCMR's denial of the applicant's case on 5 February 2002, someone needed to sit down with the applicant and explain the details of the Memorandum of Consideration so he understands why his request was denied.  

The DVA representative first sets forth background information:  

	1.  She acknowledges that the information surrounding the altercation in which the applicant sustained a brain injury was provided to the military by local police and others at the scene.  

	2.  She points out that the Memorandum of Consideration describes a series of reprimands related to behavioral problems (breaking restriction, striking a fellow soldier, and threatening other soldiers) during the period June 1976 to December 1977.  

	3.  The DVA representative further points out that there is information about the applicant being diagnosed with "passive-aggressive personality disorder with situational adjustment" for threatening to kill his mother by a private physician in the early 1970s prior to his enlistment.  She states that apparently the applicant was hospitalized in a psychiatric facility, treated with anti-psychotic medications and discharged from the physician's care with the recommendation to remain on Haldol.  She also states that the applicant last filled this prescription in 1977 while he was on active duty in the Army.

	4.  She then sets forth the diagnoses by the medical evaluation board (MEB) that the applicant suffered from traumatic, acute, organic brain syndrome as a result of a blow to the head; anemia; and chronic, severe, mixed character disorder which existed prior to service.  The DVA representative then concluded that the "case was referred on to the Physical Evaluation Board because the MEB found him mentally competent for pay purposes and to have the capacity to understand the nature of the proceedings."

The DVA representative then presents a series of questions which are quoted as follows:

	"1.  If [the applicant's name omitted] had a psychiatric/behavioral condition prior to his enlistment, why didn't he receive the appropriate ongoing treatment? Does the Army rely on the enlistee to report all problems or do they investigate prior medical and psychiatric records before enlistment?

	2.  If his supervisors were not aware of his condition prior to enlistment, why wasn't he evaluated after the incidents of misconduct?  Why did he not receive a psychiatric evaluation and/or treatment for his illness?"

In conclusion, the DVA representative stated that her concern is the applicant displayed an obvious psychiatric disorder prior to his enlistment in the Army and did not receive any further follow up to ensure that he remained on the appropriate medications to control his behavior.  She also contends that he continued to display inappropriate behavior while on active duty and was punished, but there appears to have been no psychiatric assessment completed to evaluate the problem and to determine if intervention was needed.

The video tape submitted by the applicant essentially restates the issues raised in the undated letter to the Member of Congress.  This video tape was viewed in its entirety by the members of the ABCMR during their deliberations on the applicant's case.

The applicant’s request for reconsideration contains new arguments which will be considered by the Board.

The applicant's service personnel records contain a Standard Form 93 (Report of Medical History) prepared on 6 January 1975.  This document was prepared in the applicant's own hand.  Item 9 (Statement of Examinee's Present Health and Medications Currently Used) contains the following handwritten entries:

	"I am In Good Health" and "no medication."

The applicant completed item 16 of the Standard Form 93 indicating that he had not ever been treated for a mental condition.  

The applicant completed item 19 of the Standard Form 93 indicating that he had not ever been a patient in any type of hospital and item 21 by indicating that he had not consulted with or been treated by clinics, physicians, healers or other practitioners within the past five years for other than minor illnesses.

The applicant's service personnel records contain a Standard Form 88 (Report of Medical Examination) also prepared 6 January 1975.  Under the heading of "Clinical Evaluation," the Army medical officer who examined the applicant found indicated that the applicant had no abnormalities.  The doctor indicated under item 42 (Psychiatric-specify any personality deviation) that the applicant was "normal."

The applicant's medical examination indicates that he failed the "red/green" portion of the color vision test.  However, the applicant's medical examination was reviewed on 17 April 1975 and he was found qualified for enlistment with a physical profile of 1 1 1 1 1 1.  The applicant was enlisted in the Regular Army on 22 April 1975.

The applicant's service personnel records contain three DA Forms 2627 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]).  

The first nonjudicial punishment was administered to the applicant on 21 June 1976 for breaking restriction to the company area on or about 19 June 1976.  The punishment for this offense was restriction to the company area for three days, three days of extra duty, and reduction from private first class/pay grade E-3 to private/pay grade E-2. 

Records show that on 19 January 1977, the applicant was again promoted to private first class/pay grade E-3.

The second nonjudicial punishment was administered to the applicant on 1 July 1977 for striking a soldier in the face with a closed fist on or about 24 May 1977.  The punishment for this offense was reduction from private first class/pay grade E-3 to private/pay grade E-2 and forfeiture of $50.00.

The third nonjudicial punishment was administered to the applicant on 19 December 1977 for threatening a soldier with bodily harm in order to obtain $15.00 from him on or about 5 December 1977.  The punishment for this offense was seven days of extra duty and seven days restriction to the battalion area.

The applicant's service personnel records contain warrant number 2485 (Brownsville, Tennessee), dated 13 November 1978, for the arrest of the applicant for the offenses of "public drunk, disorderly conduct, trespassing, destruction of private property."  The warrant shows the applicant rammed his car three times into his ex-mother-in-law's car causing it to damage the utility room of her house.

Based on a medical examination conducted on 2 January 1979, a MEB was convened at Fort Gordon, Georgia, to consider the applicant's case.  He was present for the proceeding.  The applicant was diagnosed with traumatic, acute severe, organic brain syndrome, as a result of a blow to the head and manifested by impairment of intellectual functioning as a result of loss of portion of the right temporal lobe; anemia; and chronic, severe, mixed character disorder with passive-aggressive hostile traits, emotional lability, and poor impulse control.

A medical history summary considered by the MEB contained information provided by the physician who attended the applicant in 1972 and 1973.  This information included initial evaluation of the applicant's condition as passive-aggressive personality disorder with situational adjustment reaction of adolescence, but was not considered psychotic.  In July 1973, the applicant threatened to kill his mother and held his family hostage which resulted in hospitalization.  The applicant was tested which found poor impulse control, limited interpersonal relationships, antisocial personality configuration, scattered though disturbances reflecting immaturity and a behavior pattern which could be characterized as regressed and immature with a lack of anxiety and manipulative passive aggressive behaviors.  It was considered that he would act out when frustrated.  He was discharged on Haldol and Akineton.  He was further tested which showed immaturity, insecurity, and that he probably had trouble following rules and regulations.  

In the opinion of the MEB, the applicant was unfit for further military service under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-29.  The MEB recommended that the applicant be referred to a PEB.  

In the opinion of the MEB, the applicant was mentally competent to handle his financial affairs and is not dangerous to himself and others; the applicant should be discharged to his own care following separation from the military service; the applicant should continue his medications and seek further psychiatric care as an outpatient in civilian life; and the applicant should continue his medications of Dilantin, Phenobarbital and Haldol and obtain follow up by a physician of his choosing near his home.

By unanimous decision, the MEB found the applicant medically unfit for further military service.  The applicant indicated on the DA Form 3947 that he did not desire to continue on active duty.  The findings and recommendations of the MEB were approved by the Medical Corps colonel in the position of Chief of Professional Services at Eisenhower Army Medical Center on 14 May 1977.  The applicant was informed of this decision on 22 May 1979 and elected not to appeal.  

No further action was taken in the applicant's case until the completion of the Line of Duty Determination by the applicant's chain of command at Fort Campbell, Kentucky.

The applicant's service personnel records contain a 25 April 1979 Line of Duty Determination.  In summary, the Line of Duty Determination was that the applicant was not in the line of duty at the time of his injury due to his own misconduct.

In summary, the Line of Duty Investigation found the applicant was not absent without leave at the time of his injury and that police report indicates that the applicant had been drinking, but there was no report indicating the level of blood alcohol.  The Line of Duty Investigation determined, based on medical and psychiatric reports, the applicant was mentally sound at the time he drove his car into his ex-mother-in-law's car resulting in damage to her house.  

The Line of Duty Investigation concluded that the applicant's actions were willfully neglect and the proximate cause of his injuries and that his own statement sets forth intent.  The Line of Duty Investigation also concluded the applicant could have anticipated he would encounter trouble with his ex-brother-in-law based on his actions and, therefore, the applicant was equally at fault for the injuries to his head.

Included in the Line of Duty Investigation was a sworn statement made by the applicant on 5 March 1979.  This document states in part:

	"I jumped in my car and went to where my kids were and in a rage I rammed my car into my mother-in-law's car and drove her car through the utility room doing a total damage of $4,300.00 and her son came out the house and hit me with a 2X4 on the right side of my head, causing extensive brain damage.  I on Nov, 15th underwent surgery at Baptist Hospital in Memphis, Tennessee.  From there I was transferred to Fort Campbell, by helicopter and I was put in Ward 17C (Psychiatry) due to inappropriate actions on Ward 9.  There I was Psychologically tested and was transferred to Fort Gordon, Ga on Dec. 23 for further evaluation.  I've been there ever since and I'm home to reduce the Charges of Destruction of Private Property, and aggravated assault with intent to commit murder.  I'm under $6,000.00 Bond.  I'm on 6 different types of medicine and including a nerve depresent (sic depressant) Hal-Dol.  I'm in fair condition.  I have organic Brain Syndrome with right tempered (sic temporal) lobe damage."

A DA Form 199 (Physical Evaluation Board Proceedings) shows that an informal PEB convened at Fort Gordon, Georgia, on 11 July 1979 to consider the applicant's case.  This informal PEB considered the diagnosis of traumatic brain syndrome (VA Code 8045) and the Line of Duty Determination.  The PEB found the applicant physically unfit and recommended that he be separated from the military service without entitlement to disability benefits. 

On 4 August 1979, the applicant concurred with the decision of the PEB and waived a formal hearing.  On 20 August 1979, the U.S. Army Physical Disability Agency in Washington, D.C., reviewed the decision of the informal PEB and found the applicant was unfit by reason of residuals of injury (traumatic brain syndrome) "determined not to be in the line of duty due to own misconduct."  

On 28 August 1979, the U.S. Army Military Personnel Center approved the PEB’s recommendation and directed the applicant be discharged under the provisions of Army Regulation 635-40, paragraph 4-19e(6).

On 10 October 1979, the applicant was honorably discharged from active duty under the provisions of Army Regulation 635-40, paragraph 4-19E(6) by reason of medical discharge.

Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  Numerical designator "4" indicates that an individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  

Army Regulation 600-8-1 (Army Casualty and Memorial Afairs and Line of Duty Investigations) provides in chapter 39 that a line of duty investigation must be conducted in all cases of injury not a result of enemy action.  Appendix F (Rules Governing Line of Duty and Misconduct Determinations) of this regulation states the specific rules which apply to cases involving misconduct.  

Rule 1 of Appendix F of Army Regulation 600-8-1 provides that injury or disease directly caused by misconduct or willful negligence is not in line of duty.  It is due to misconduct.  This is a general rule and must be considered in every case in which misconduct or willful negligence appears to be involved.  “Proximate cause” is defined as a cause which, in a natural and continuous sequence, unbroken by a new cause, produces an injury and without which the injury would not have occurred.  A proximate cause is a primary moving or predominating cause and is the connecting relationship between the intentional misconduct or willful negligence of the member and the injury that results as a natural, direct, and immediate consequence which supports a Not in Line of Duty-Due to Own Misconduct determination.  The authorized finding for an injury or disease that was proximately caused by intentional misconduct or willful negligence of the member is Not in Line of Duty - Due to Own Misconduct.

Rule 7 of Appendix F of Army Regulation 600-8-1 states that injury caused by wrongful aggression, or voluntarily taking part in a fight or like encounter, in which one is equally at fault in starting or continuing, is not in the line of duty.  It is due to misconduct.  An injury received by a member in an affray in which he is the aggressor is caused by his own misconduct.  Provocative actions or language used by the member in which a reasonable person would expect retaliation, is a willful disregard for personal safety, and injuries directly resulting therefrom are due to misconduct.   
 
Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  Under the laws governing the Army Physical Disability Evaluation system, soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits.  The disability must have been incurred or aggravated while the soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training.  The disability must not have resulted from the soldier’s intentional misconduct or willful neglect or been incurred during a period of unauthorized absence.  

Paragraph 4-19e(6) of Army Regulation 635-40, in effect at the time of the applicant's discharge from active duty, stated that the U.S. Army Military Personnel Center would direct the separation for physical disability without severance pay when the disability was incurred as a result of intentional misconduct, willful neglect, or during a period of unauthorized absence.

Army Regulation 27-10 (Military Justice), in pertinent part, states the applicable policies for nonjudicial punishment.  The regulation states that nonjudicial punishment may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; preserve a soldier’s record of service from unnecessary stigma by record of court-martial conviction; or further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.  All Article 15 actions, including notification, acknowledgment, imposition, filing determinations, appeal, action on appeal, or any other action taken prior to action being taken on an appeal, except summarized proceedings will be recorded on DA Form 2627.  The regulation also states that absent compelling evidence, a properly completed, valid DA Form 2627 will not be removed from a soldier’s record.

Army Regulation 15-185 (Army Board for Correction of Military Records) sets forth the policy and procedures for the ABCMR.  It provides that, if a request for reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence that was not in the record at the time of the Board’s prior consideration.  This includes but is not limited to any facts or arguments as to why relief should be granted.  The staff of the Board is authorized to determine whether or not such evidence has been submitted.

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 Board considered the applicant's request to change the 25 April 1979 Line of Duty Determination from not in the line of duty due to own misconduct to in the line of duty.

2.  The Board reviewed the Memorandum of Consideration reflecting the ABCMR's decision in Docket Number AR 2001064825 on 5 February 2002, the letter from the DVA representative to the Member of Congress, the applicant's video tape presentation to the ABCMR and the applicant's Official Military Personnel File.  

3.  The Board considered the issues raised by the DAV representative regarding ongoing treatment by the Army for the applicant's psychiatric/behavioral condition which existed prior to his enlistment and review of the applicant's civilian medical and psychiatric records prior to enlistment as follows:

	a.  The Board noted that, at the time of the applicant's entrance medical examination, he indicated on his statement of medical history that he was in good health and was not taking any medication.   Further, upon examination, competent medical authority determined that the applicant's psychiatric condition was normal.  The applicant's entrance medical examination was reviewed and the applicant was found fit for enlistment in the Regular Army.  In the absence of any evidence of an existing psychiatric or mental condition at the time of his enlistment, there was no basis to search the applicant's past medical history for such conditions or to begin a treatment regimen for a psychiatric condition.

	b.  The Board also noted the applicant's service personnel and medical records do not contain any evidence of behavioral or medical conditions prior to 13 November 1978 which resulted in a diagnosis of psychiatric abnormality or otherwise indicated that further inquiry into the applicant's medical history was warranted. 

	c.  Records show that, during his admission evaluation at the Eisenhower Army Medical Center, the applicant's past medical history of passive-aggressive personality was discovered.  Notwithstanding the fact that the applicant's prescription for Haldol was filled in 1977, the applicant's civilian physician had no record of the applicant's behavior for the period 1973 to 1977.

4.  As follows, the Board considered the contention of the DAV representative that, even if the applicant's supervisors were not aware of his psychiatric disorder prior to enlistment, he should have been evaluated after the incidents of misconduct for which he was punished:

	a.  The Board reviewed the applicant's disciplinary record as contained in his Official Military Personnel File.  This record shows the applicant received nonjudicial punishment three times:  on 21 June 1976, for breaking restriction to the company area; on 1 July 1977, for striking a soldier in the face with a closed fist; and on 19 December 1977, for threatening a soldier with bodily harm in order to obtain $15.00 from him.  

	b.  The Board also noted that, on 19 January 1977, the applicant was promoted back to private first class/pay grade E-3 after his first nonjudicial punishment was administered on 21 June 1976.

	c.  The Board noted that nonjudicial punishment may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; preserve a soldier’s record of service from unnecessary stigma by record of court-martial conviction; or further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.  

5.  Based on all of the foregoing the Board made the following determinations:

	a.  Evidence of record shows that the applicant, at the time of his entrance medical examination willfully did not disclose his previous medical conditions to military authorities.  However, at this same time, competent military medical authorities did not diagnose the applicant with any psychiatric disorder which would disqualify him from enlistment.  Therefore, there was no basis to search further into the applicant's medical history and no basis to treat him for any psychiatric abnormality.  As a result, the inference by the applicant and his DVA representative that the Army should have searched further into the applicant's medical history and treated him for his psychiatric disorder is without merit.

	b.  The assertion by the applicant and his DVA representative that the applicant's indiscipline should have demonstrated his mental condition and resulted in evaluation and treatment for this condition is without foundation.  The applicant's chain of command determined that he committed three minor infractions and disciplined him with nonjudicial punishment.  These actions occurred over an 18 month period of service and the applicant performed sufficiently well for the six months after his first offense that he was promoted back to private first class.  Additionally, there is no evidence that the applicant performed unsatisfactorily from the date of his third punishment on 19 December 1977 until his civil offenses and resulting injury on 13 November 1978.  Since these infractions were minor and occurred over a substantial period of time including sustained periods of good service, there was no basis to believe at that time the applicant's indiscipline resulted from a psychiatric disorder or that he suffered from a psychiatric disorder which required evaluation or treatment.

	c.  While sympathetic to the applicant's current condition, the Board noted that he was responsible for the events which led to his injury and subsequent discharge without military benefits.  Clearly he was the aggressor and could reasonably have foretold there would be a reaction when he rammed his car into his ex-mother-in-law's car thereby substantially damaging her house.  The Board also determined that the Line of Duty Determination correctly stated that the applicant was not in the line of duty due to his own misconduct based in view of the facts in this case.

	d.  Based on all of the foregoing, this Board determined that the overall merits of the case, including the latest submissions and arguments, are insufficient as a basis to reverse the ABCMR's decision in Docket Number AR2001064825 on 5 February 2002.  

6.  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

__INW__  __WTM__  ___CG___  DENY APPLICATION

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

INDEX

CASE ID	AR2002071310	
SUFFIX		
RECON	This applies only to ADRB	
DATE BOARDED	20021003	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	Deny	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.		
2.		
3.		
4.		
5.		
6.