PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            8 April 2003      
	DOCKET NUMBER:   AR2002072939

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond J. Wagner		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Ms. Linda M. Barker		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his records be corrected by upgrading his discharge, restoring his rank to staff sergeant with back pay and allowances, expunging all references to the disciplinary actions that led to his discharge, and affording him a physical disability separation or retirement.

3.  The applicant defers to counsel.  Counsel states that shortly after the applicant's assignment to the 323d Combat Support Hospital, he filed an Inspector General (IG) complaint in December 1995 which appears to have quickly escalated the underlying tensions that existed between him and his military and civilian superiors.  There is no dispute that his behavior in the later months and years were clearly not typical for him.  Beginning in early 1996, evidence establishes that he became depressed and anxious, he experienced feelings of persecution and paranoia, and he had ideations of homicide and suicide.  These symptoms worsened, culminating ultimately in his being hospitalized on several occasions shortly after his separation for his psychiatric symptoms which included auditory hallucinations, anxiety, violent thoughts, etc.  He was later diagnosed with paranoid schizophrenia.

4.  Counsel states that a Department of Veterans Affairs (VA) psychiatrist, in a note dated 26 June 1998, wrote that the applicant was not correctly diagnosed while in the service due to the nature of his medical condition and the steroidal treatment for his sarcoidosis which gave a confusing picture to examiners.  It was the VA psychiatrist's professional judgment that the early signs of the applicant's currently diagnosed paranoid schizophrenia illness were being manifested during the period in question and accounted for his deviation in behavior.  The psychiatrist stated that all the evidence available indicated he met the criteria for insanity at the time of commission (of the offenses).

5.  Counsel requests that, if the Board is not willing to conclude that the applicant lacked the mental capacity to appreciate the wrongfulness of his actions or to understand the court-martial proceedings pending, then the penalties imposed for the applicant's aberrant behavior be reconsidered as being overly harsh under the totality of the circumstances.  Not only does medical opinion establish that he suffered from a mental disease at the time of the alleged offenses but it is also probable that he was not capable of voluntarily requesting separation in lieu of court-martial given his state of mind at the time.  

6.  Counsel states that in retrospect the applicant exhibited the early symptoms of his paranoid schizophrenia at the time of the alleged actions.  In this context, one can envision the applicant's state of mind when he was locked up for six days awaiting court-martial from an Army that he suspected and distrusted.  After all, his complaints to the IG were without effect, his medical complaints related to sarcoidosis were perceived by his superiors as being malingering, his attempt to seek medical help for his confusing thoughts resulted in disciplinary action, his requests to be reassigned to another unit went unanswered, and he continued to be harassed by his superiors.

7.  Counsel contends that, in addition, the documentation surrounding the circumstances of the pending court-martial and the request for separation in lieu of that proceeding are notably absent from the record.  There is no documentation that the request for discharge went through channels to the separation authority.

8.  Counsel contends that there is absolutely no evidence the applicant made threats of harm against his superiors.  Instead, he sought medical assistance, in confidence, for his confusing thoughts and never communicated any threats directly to any individual nor did he ever take any action to carry out the threats against any individual.  It remains questionable that these mere verbal utterances made by a severely distressed and mentally impaired individual (whether secondary to the steroid-induced psychosis or paranoid schizophrenia) would be construed to be "serious offenses" that would warrant a discharge of this nature versus some effort at rehabilitation.

9.  Counsel argues that justice demands that the applicant's well-documented paranoid schizophrenia be taken into consideration to mitigate the punishment inflicted upon him for behavior that medical opinion directly relates to his mental condition.  Compassion and equity begs that relief be granted to the applicant and that the record be corrected.

10.  Counsel provides a chronology of events leading up to the VA psychiatrist opining that the applicant exhibited early signs of paranoid schizophrenia sometime after 1994 and certainly by 1996.

11.  The applicant’s military records show that he enlisted in the U. S. Army Reserve on 15 August 1986 and entered the Active Guard/Reserve (AGR) Program on 28 January 1990.  He was promoted to staff sergeant on                  1 December 1992.

12.  The applicant's medical records show that he was first seen in June 1994 for a medical condition that was diagnosed as sarcoidosis (a disease of unknown cause in which inflammation consisting of granulomas occurs in lymph nodes, lungs, liver, eyes, skin, or other tissues).  He received treatment for this condition periodically throughout the remainder of his service.  Treatment included being placed on light duty and/or physical profile on several occasions and the use of the corticosteroid prednisone.  Apparently at one point the applicant felt better and stopped taking the prednisone on his own initiative.

13.  The applicant was reassigned in April 1995 to the 323d Combat Support Hospital located in Southfield, MI, and performed duties as the personnel and administration center (PAC) noncommissioned officer-in-charge.

14.  In a previous Board case considered on 29 January 2002 (docket number AR2001059305), counsel for the applicant indicated that on 6 March 1996, the applicant went to the emergency room of a civilian facility complaining of chest pain.  The applicant asserted that he had informed Master Sergeant D___ of the circumstances related to his absence from duty that day and he was not led to believe that any further action was required of him.  The applicant stated that some time thereafter on the same day he was ordered, in an offensive and degrading manner, by Captain K___ to report to his assigned duty section contrary to the orders of his doctor.  The applicant arrived at his duty section where he was further ordered to meet with Lieutenant Colonel B___, Captain K___, and others.  The meeting was heated but, according to the applicant, ultimately resulted in apologies being exchanged.

15.  Counsel for the applicant in the 29 January 2002 ABCMR case continued   by stating that in late March 1996 the applicant was presented with Article         15 paperwork to sign which alleged misconduct on his part due to the 6 March 1996 incident.  The applicant refused to accept the Article 15 and was informed that a court-martial would follow.  

16.  The applicant's medical records show he was first referred for a mental, emotional, psychological, or psychiatric problem on 23 April 1996.  He was seen on that day by a social worker, Alan C___-C___, to rule out homicidal or suicidal ideation.  The applicant denied homicidal ideation; however, due to the stress and pressure, he might act and hurt/kill others.  He denied suicidal ideation.

17.  A Referral for Civilian Medical Care, DD Form 2161, dated 23 April 1996, noted that the applicant was referred to a grief and loss consultant two months previously and recently had received a letter of possible demotion.  He expressed homicidal ideation towards his immediate supervisor.  Evaluation for possible inpatient hospitalization was requested.  He was given a provisonal diagnosis of major depressive episode.  

18.  A 25 April 1996 entry in the applicant's Chronologicl Record of Medical Care, SF 600, noted the applicant walked into the Employee Assistance Clinic and stated that he would get his gun, keep it within reach, and kill whoever messed with him.  He specifically named the civilian GS-10 in his office and the captain who served him the Article 15 several days earlier.  It was recommened he go to the VA as an inpatient for further assessment, evaluation, and treatment.  It was requested he be held in the inpatient unit until he was no longer dangerous to himself or others.  The entry was signed by Alan C___-C___ of the Selfridge Employee Assistance Clinic, Selfridge Air National Guard Base, MI.
19.  The applicant's medical records show that he was enrolled in the Partial Hospitalization Program from 1 - 9 May 1996.  On 1 May 1996, he "contracted" not to harm himself or others.  

20.  Four of the applicant's noncommissioned officer evaluation reports (NCOERs) during the period 1994 - 1997 are available.  The NCOER for the period ending April 1994 shows that he received three "success" and two "excellence" ratings from his rater in Part IV with a "fully capable" rating in Part Va (overall potential for promotion and/or service).  His senior rater rated his overall performance as a high ("1" to the highest degree and "3" to the lowest degree) "successful" and his overall potential as a high ("1" to the highest degree and "3" to the lowest degree) "superior." 

21.  The applicant's NCOER for the period ending April 1995 gave him a "no" check in Part IVa3 (is disciplined and obedient to the spirit and letter of a lawful order) with the comment "needs to control temper even in stressful situations").  Otherwise, he received five "success" ratings in Part IV and a "fully capable" in Part Va.  His senior rater rated his overall performance as a low ("3") "successful"
and his overall potential as a low ("3") "superior."

22.  The applicant's next available NCOER, for the period ending February 1996, is only partially completed, not signed, and was for an erroneous period of time (April 1994 - February 1996).  On this NCOER the applicant's rater gave him four "success" and one "excellence" ratings yet rated his overall potential for promotion and/or service in positions of greater responsibility as "marginal."  His senior rater (the civilian the applicant threatened to kill) rated his overall performance and potential as "poor" and made mostly negative comments.  

23.  The applicant's last available NCOER, for the period April 1996 - July 1996, gave him four "success" and one "excellence" ratings with his overall potential for promotion and/or service in positions of greater responsibility being rated as "fully capable" by his rater.  His senior rater rated his overall performance as a low "successful" ("3") and his potential as a low "superior" ("3").

24.  On 19 March 1997, charges were preferred against the applicant charging him with two specifications of disrespect towards a superior commissioned officer on or about 13 March 1996 in violation of Article 89 (by saying about Captain K__, "I respect the bars on his shoulders but do not respect him; he is an uncaring piece of garbage, redneck," or words to that effect; and by saying to Lieutenant Colonel B___, "I don't respect you; I don't give a shit if you approve my leave or not; you don't give a fuck about me or your soldiers and all I care about is my health," or words to that effect).  He was also charged with two specifications of wrongfully communicating to Alan C___-C___ a threat to kill Captain K___ and a threat to kill Mr. F___ on or about 25 April 1996 in violation of Article 134.
25.  A Memorandum for Record dated 8 April 1997 indicated the applicant was instructed to report to Fort Knox, KY, for arraignment.  He received travel orders to proceed to Fort Knox on 24 March 1997.  He refused to go.  A fellow sergeant convinced him to proceed to Fort Knox.  On the way, he stopped at a hospital complaining of chest pains.  Upon being discharged from the hospital on           25 March 1997, he did not proceed to Fort Knox as ordered but went back to Michigan.  He was determined to be a no-show risk and was placed in pre-trial confinement.

26.  The applicant's discharge packet is not available.

27.  On 2 May 1997, the applicant was discharged, with a discharge under other than honorable conditions, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had completed a total of 7 years, 9 months, and 5 days of creditable active service with one day of lost time.

28.  A VA Discharge Summary, dated 1 October 1997, indicated the applicant was hospitalized on 4 September 1997 and was released with a diagnosis of adjustment disorder with depressed mood, depression secondary to sarcoidosis, and sarcoidosis.  

29.  A VA Discharge Summary, dated 20 January 1998, indicated the applicant was hospitalized on 16 January 1998 and was released with a diagnosis of depression by history, personality disorder not otherwise specified, and sarcoidosis by history.

30.  A VA Discharge Summary, dated 11 June 1999, indicated the applicant was hospitalized on 7 June 1999 when he complained of hearing voices and depression.  He was released with a diagnosis of depression not otherwise specified, personality disorder not otherwise specified, and sarcoidosis by history.  

31.  On 18 October 1999, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his discharge.  

32.  A VA Compensation and Pension Exam Report, date of exam 25 October 1999, indicated the applicant was diagnosed with psychosis, not otherwise specified, in partial remission with medications; personality traits, multiple, unspecified; pulmonary sarcoidosis; and probably prednisone effect precipitating psychosis.  The examiner noted that his opinion of service connection was based upon the introduction of prednisone (to the applicant) which was noted for precipitating psychotic conditions.  

33.  A VA Rating Decision, dated 2 November 1999, increased the applicant's rating for psychosis (previously evaluated as residual depression with adjustment disorder) from 50 percent disabling to 100 percent effective 3 May 1997.  

34.  Apparently the diagnoses at the present time are psychosis, not otherwise specified (100 percent), history of sarcoidosis (0 percent), and status post hemorrhoidectomy (0 percent).  

35.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  A discharge under other than honorable conditions is normally considered appropriate.  

36.  The Manual for Courts-Martial United States, 2002 edition, rule 308 states that the immediate commander of the accused shall cause the accused to be informed of the charges preferred against the accused as soon as practicable.

37.  Article 134 of the Manual for Courts-Martial (communicating a threat) states that, to establish the threat, a declaration made under circumstances which reveal it to be in jest or for an innocent or legitimate purpose does not constitute this offense.

38.  The Diagnostic and Statistical Manual of Mental Disorders (DSM), fourth edition states that the onset of schizophrenia typically occurs between the late teens and the mid-30s.  The onset may be abrupt or insidious but the majority of individuals display some type of premonitory phase manifested by the slow and gradual development of a variety of signs and symptoms (e.g., social withdrawal, loss of interest in school or work, unusual behavior, outbursts of anger).  The essential feature of the undifferentiated type of schizophrenia is that the symptoms do not meet the criteria for the paranoid, disorganized, or catatonic type.

39.  Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of 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.  

40.  The VA Schedule for Rating Disabilities (VASRD) is the standard under which percentage rating decisions are to be made for disabled military personnel. The VASRD is primarily used as a guide for evaluating disabilities resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  Unlike the VA, the Army must first determine whether or not a soldier is fit to reasonably perform the duties of his office, grade, rank or rating.  

41.  Title 38, U. S. 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.  

42.  Title 10, U. S. Code, section 1212(c) states that the amount of disability severance pay received shall be deducted from any compensation for the same disability to which the former member becomes entitled under any law administered by the VA.  Thus, VA compensation may be withheld as an offset on a monthly basis until the total amount of military severance pay has been recovered.

CONCLUSIONS:

1.  The applicant was diagnosed with sarcoidosis in June 1994 and treated with steroids.  There is no definitive medical evidence that proves the use or misuse of steroids caused the applicant's currently diagnosed schizophrenia.  The Board notes that the DSM IV indicates the majority of individuals with schizophrenia display some type of premonitory phase manifested by gradual development of a variety of signs and symptoms to include unusual behavior and outbursts of anger.  However, the applicant's NCOER history shows that he was capable of performing his duties up until at least July 1996.

2.  While the applicant's NCOER for the period ending April 1995 shows that his rater felt the need to comment on the applicant's need to control his temper, there is no definitive medical evidence to show the applicant's currently diagnosed schizophrenia was the cause of his temper problem.

3.  The Board is cognizant that the VA diagnosed the applicant with adjustment disorder with depressed mood, depression secondary to sarcoidosis, and sarcoidosis, shortly after his discharge.  However, based upon his NCOERs it appears that he was not unfit to perform his military duties.  

4.  In addition, it appears the applicant's sarcoidosis is currently rated as              0 percent disabling from the VA.  Therefore, it appears that it would not have been an unfitting condition at the time of his discharge from the Army.

5.  Any rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army.  The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit.  The VA is not required by law to determine medical unfitness for further military service in awarding a disability rating, only that a medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved (i.e., the more stringent standard by which a soldier is determined not to be medically fit for duty versus the standard by which a civilian would be determined to be socially or industrially impaired), an individual may be determined to be physically fit by the Army and yet his medical condition be rated as disabling by the VA. 

6.  In addition, any disability severance pay the applicant would have received by the Army would have been offset by the VA.

7.  The Board notes the applicant began to seek medical help for a mental, emotional, psychological, or psychiatric problem on 23 April 1996 for problems that included expressing homicidal thoughts to a social worker at the local Employee Assistance Center.  The Board notes that this was shortly after the meeting with his commanders in March 1996 when he was disrespectful in language towards them.

8.  The Board notes that the Manual for Courts-Martial states that the immediate commander of the accused shall cause the accused to be informed of the charges preferred against the accused as soon as practicable.  The applicant was not charged with disrespect towards a superior officer until March 1997, one year after the two specifications of disrespect occurred.  Being disrespectful in language towards a superior officer is not normally the type of misconduct that requires a long investigation.  There is a perceived bias regarding reprisal which raises material doubts about the fairness of the charges against the applicant concerning this charge.

9.  The Board notes that the perception of bias is intensified when the second set of charges is examined.  Article 134 of the Manual for Courts-Martial states that, to establish the threat, a declaration made under circumstances which reveal it to be for a legitimate purpose does not constitute this offense.  The applicant had voluntarily sought medical help from the local Employee Assistance Clinic and expressed his homicidal thoughts to a social worker there.  While the social worker may have been justified in warning the individuals about whom the applicant had the homicidal thoughts, it was contrary to the Manual for Courts-Martial to use this information as a basis for charging the applicant with an offense.  

10.  As a result of these unfair or improper charges, the applicant was led to request discharge in lieu of trial by court-martial.  The approval of his request led to his administrative reduction to pay grade E-1 and to his receiving a discharge under other than honorable conditions.  

11.  It appears the applicant was not physically unfit and therefore correction of his records to show he was separated for physical disability would not be appropriate.  However, in view of the perception of bias in the handling of his administrative discharge, it would be equitable to grant the other relief requested.

12.  In view of the foregoing, the applicant’s records should be corrected but only as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the applicant was discharged on 2 May 1997 under the provisions of Secretarial Authority, with an honorable discharge, in the rank of Staff Sergeant, E-6 and expunging from his records all documents pertaining to his administrative discharge in lieu of trial by court-martial.

2.  That the applicant be paid all pay and allowances that will become his due as a result of this correction.

3.  That following completion of the administrative corrections directed herein, the proceedings of the Board and all documents related to this appeal be returned to this Board for permanent filing.

4.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__rjw___  __bje___  __lbm           GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_Raymond J. Wagner___
		        CHAIRPERSON

INDEX

CASE ID	AR2002072939	
SUFFIX		
RECON		
DATE BOARDED	20030408	
TYPE OF DISCHARGE	UOTHC	
DATE OF DISCHARGE	19970502	
DISCHARGE AUTHORITY	AR 635-200 ch 10	
DISCHARGE REASON	A70.00	
BOARD DECISION	GRANT	
REVIEW AUTHORITY	Mr. Schneider	
ISSUES         1.	110.00	
2.	108.00	
3.		
4.		
5.		
6.