RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           16 December 2003                   
	DOCKET NUMBER:   AR2002076652

	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	
	Ms. Carolyn G. Wade		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. John N. Slone		Member	
	Ms. Shirley L. Powell		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests, through counsel, reconsideration of his request for correction of his military records by setting aside his General Discharge (GD) of 21 October 1975 and retroactively placing him on the Army’s permanent disability retired list (PDRL), with appropriate disability rating and back retired pay, offset by severance pay.

2.  The applicant states that he was ill during the latter part of his military service and should have been medically retired with disability.

3.  The applicant provides more than 200 documents too numerous to list, but identified as exhibits 1-4 and A-D.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 

1.  Counsel requests that the applicant's GD of 21 October 1975 be set aside and that he be retroactively placed on the Army PDRL, with appropriate disability rating and back retired pay (offset by severance pay).

2.  Counsel states, in a 28-page supplemental statement, dated 7 June 2002, that the applicant's illness was well documented during his service and that he should have been afforded medical evaluation processing and permanent disability retired status.

3.  Counsel provides a supplemental statement and exhibits 1-4 and A-D.  However, only the following documents were considered new evidence requiring Board consideration:  the supplemental statement; Army personnel, medical, and other official records; adjudications and proceedings before the Veterans and Social Security Administrations; unit battle records; a medical opinion from a psychologist; copies of the power of attorney appointing his wife to manage his affairs and the revocation of the power of attorney appointing his wife; and a copy of his appellant brief before the United States Courts of Appeals for Federal Claims.

CONSIDERATION OF EVIDENCE: 

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AC77-07160C on 21 June 1978 and subsequent reconsiderations on 11 April 1985, 15 April 1986, 3 April 1996, 18 October 1996, 8 September 1999, and 14 November 2001.

2.  The applicant was 18 years of age when he was inducted into the Army of the United States on 18 September 1964.  Upon completion of all required military training, he was awarded military occupational specialty (MOS) 118, Light Weapons Infantryman, and was assigned to Germany from 3 February 1965 to 30 August 1966.  During this period of service, the applicant's record reflected excellent conduct and efficiency ratings and he attained the rank of Specialist (SP4/E-4) and was promotable to Sergeant (SGT/E-5).  On 2 September 1966, he was given an early release from active duty as an overseas returnee and transferred to the United States Army Reserve (USAR) Control Group (Annual Training).

3.  On 12 September 1966, the applicant reenlisted for a period of 4 years.  At the time of reenlistment, he was promoted to the rank of Sergeant in his previous MOS of 11B.  Following additional military training, the applicant was assigned to Delta Troop, 3rd Squadron, 17th Cavalry (3/17 Cav), Fort Knox, Kentucky.  The entire squadron deployed to Vietnam in 1967 and the applicant served there from 10 October 1967 to 9 October 1968, first with Delta Troop, 3/17 Cav and then with Delta Troop, 7th Squadron, 1st Air Cavalry Division.  He was promoted to Staff Sergeant (SSG/E-6) on 29 June 1968.

4.  On 23 July 1968, while serving in Vietnam, the applicant was awarded the Silver Star for gallantry in action in connection with military operations involving conflict with an armed hostile force.  He distinguished himself by valorous action while serving as a fire team leader on a combat operation in the Republic of Vietnam.  The applicant, after seeing many of his comrades wounded, rushed through intense enemy fire to carry them to safety.  After administering first aid to the wounded, he returned to his position and was instrumental in preventing the enemy from overrunning his unit's position.

5.  Following his tour in Vietnam, the applicant was trained as a Drill Sergeant and assigned duties at Fort Campbell, Kentucky.  While at Fort Campbell, he suffered an episode of "chronic combat fatigue with anxiety reaction."  An Army psychiatrist at the Fort Campbell US Army Hospital stipulated the applicant was medically qualified to return to duty, but also recommended he not be exposed to further combat and that he be restricted to assignments within the United States not involving basic combat training.  Despite this medical recommendation, the applicant continued to serve as a Drill Sergeant for 4 more months before his MOS was changed to 71L, Administration Specialist.  

6.  From 28 September 1970 to 10 August 1972, the applicant was assigned to foreign service duty on Okinawa.  While there, he was twice admitted to the US Army Hospital suffering from a nervous condition.  He was treated unsuccessfully with psychotropic drugs and medically evacuated to the US Army Hospital, Fort 

Gordon, Georgia, where, on 16 August 1972, he was admitted for psychiatric evaluation and treatment.  Following discharge from the hospital, the applicant was transferred to 101st Administrative Company, 101st Airborne Division, Fort Campbell.

7.  On 9 November 1973, the applicant was transferred to New Jersey and assigned duties as a recruiter.  On 8 June 1974, an assignment restriction was entered on his DA Form 20, Enlisted Qualification Record, indicating he was not to be assigned anywhere that would require frequent exposure to loud noises or firing of weapons.  Also at that time, he received a score of "2" for "H" (Hearing and Ears -- the factor concerning auditory acuity and disease and defects of the ear) under PULHES, the Army's physical profile serial system.

8.  On 9 June 1974, the applicant reenlisted and he was reassigned to Fort Gordon.  He worked at Fort Gordon in MOS 71L and MOS 00E40, Career Counselor.  On 5 August 1974, he was promoted to Sergeant First Class, (SFC/E-7).

9.  During April and May 1975, the applicant was hospitalized for 30 days suffering from "anxiety, irritability, lability of effect, difficulties in interpersonal relationships, paranoid ideation and multiple somatic complaints."  Upon release from the hospital, he was treated as an outpatient in the Mental Hygiene Clinic.

10.  In July 1975, the applicant became enraged during an altercation with his wife.  She called the military police (MP).  When the MP's arrived, the applicant broke out all of the windows in his government quarters and pointed a loaded shotgun at them.  The applicant then threatened the MP's and fired the shotgun into the air.  He was apprehended and transported to the psychiatric ward of the US Army Hospital, Fort Gordon.  On 25 July 1975, court-martial charges were preferred against him for aggravated assault, discharging a firearm under circumstances such as to endanger human life, and communicating a threat.

11.  On 29 August 1975, the applicant appeared before a sanity board to determine if he was competent to stand trial.  The sanity board remarked that the applicant had undergone several psychiatric evaluations, but that no psychiatric disorder was ever diagnosed.  He was found to have no “recognizable mental disorder” at the time of the alleged incident in the housing area and to be able to cooperate in his own defense.

12.  On 21 October 1975, the applicant was discharged from the service under the provisions of chapter 10, Army Regulation 635-200 for the good of the service, in lieu of trial by court-martial.  He was given a GD.  He was credited with a total time in service of 11 years, 1 month, and 3 days.

13.  On 6 January 1976, the applicant was admitted to the general psychiatric ward of the Charleston Veterans Administration (VA) Hospital for treatment.  Four days prior to this admission, the applicant was admitted to Georgetown (South Carolina) Hospital for an episode during which he shattered the television screen and all of the windows in his home, ripped the telephone from the wall and overturned furniture.  At the time of admission, the applicant stated that he had been experiencing increased tenseness, frequent periods of shortness of breath, hot feelings in the forehead, and headaches for the past 3 years.  He also stated that during this 3-year period, he had increasing problems with his temper, which he characterized as "bullheadedness, [or] getting mad over nothing."

14.  The applicant remained a patient at the VA Hospital until 4 March 1976.  On 23 February 1976, two clinical psychologists rendered a statement of opinion following psychological evaluation and treatment.  They stated that the applicant was of normal intelligence with mild inefficiency in reasoning; that personality testing revealed a negative attitude, some weakness in perception of reality, and fragile repressive defenses and poor impulse control.  They stated that he was potentially dangerous, especially under stressful situations involving close ties with others.  They stated that the applicant was receiving behavioral psychotherapy, which included relaxation therapy and assertiveness training, in addition to chemotherapy with psychotropic drugs, but that he still remained anxious, ruminative and preoccupied in a somewhat paranoid way with regard to the military and that these feelings appeared to be impeding progress in establishing trusting therapeutic relationships with treatment personnel.  The applicant was diagnosed as having "borderline schizophrenia, chronic, or alternatively, chronic combat neurosis."  They concluded that the applicant had manifested psychiatric difficulties requiring treatment at least since 1970 and that he currently demonstrated limitations in his ability to function effectively in both domestic and civilian employment situations.  He was rated at 10 percent disabled by the VA.  He appealed this rating.

15.  The Department of Health, Education and Welfare(HEW) Social Security Administration (SSA) denied a disability claim by the applicant on 21 April 1976 and, again on10 September 1976.  However, on 1 December 1976, the applicant was declared psychiatrically disabled by the SSA for the purpose of receiving SSA disability payments.

16.  In response to his appeal, the applicant's VA disability rating was increased in April 1977 to 30 percent for "anxiety neurosis."  On 20 May 1977, he was given a VA psychiatric evaluation.  The applicant stated that he had difficulty living with the guilt of killing the enemy and that he has visions and dreams of the enemy he killed as well as of a female paymaster that was killed.  He stated that after leaving combat; he was working as a drill instructor, and that he was very mean and could not stand loud noises.  The doctor opined that the applicant had moderate to severe functional impairment and that a combination of anxiety and depression along with his paranoid ideations would make it very difficult for him to work in any situation where there was either noise or the requirement to relate to and trust people or to perform on a consistent basis from day to day.  The doctor concluded that the applicant suffered from anxiety neurosis with some paranoid ideation and that he [doctor] believed it was quite possible that, at times, the applicant would become psychotic when under great stress and, in addition to his anxiety, he may well be a latent schizophrenic.  The doctor viewed the applicant's prognosis as fair.  

17.  On 26 June 1980, a psychiatrist authorized by the VA to treat the applicant on a fee basis stated that he had been treating the applicant for well over 2 years and that he felt that the record was very clear that the applicant never had any psychiatric difficulties prior to his service in Vietnam, but that he had significant and ongoing problems ever since.  He stated that the applicant was receiving full disability benefits from the SSA after that agency decided that the applicant was psychiatrically disabled.

18.  On 30 May 1983, a medical doctor examined the applicant due to the applicant alleging disability due to problems with his nerves, nerve damage due to malaria, partial blindness in his left eye, and problems with his equilibrium as well as deafness in his left ear.  The doctor stated that in regards to the allegation of problems with his nerves, the applicant did show evidence of overt psychosis.  The doctor stated that the applicant had a past history of hostile and aggressive actions and that he had been hospitalized on a number of occasions at the Charleston VA Hospital and that the hospitalizations had been well documented.  The doctor also stated that the applicant was currently under the care of a psychiatrist.  The doctor's impression of the applicant's examination was post Vietnam psychosis, decreased visual acuity in left eye, hearing deficit by history secondary to malaria, and an equilibrium disorder by history. 

19.  On 12 January 1984, the applicant was examined by a medical doctor and found to be suffering from peptic ulcer disease, a long history of mental problems secondary to the Vietnam War, history of deafness in the left ear, and a history of vision problems in the left eye.

20.  On 27 January 1989, the VA found the applicant to be 100 percent disabled due to post-traumatic stress disorder (PTSD).

21.  On 8 February 1995, a licensed clinical psychologist at the William Jennings Bryan Dorn VA Hospital, Columbia, South Carolina, stated that the applicant had been evaluated and treated at the Mental Hygiene Clinic for over 5 years.  The psychologist stated that it was the professional judgment of the clinic staff that the applicant was suffering from PTSD relating to his Vietnam service and that it was "chronic, severe, industrial impairment, unemployable, totally and permanently disabling."  They stated that to place the applicant in a work environment on a regular day-to-day basis would greatly increase his symptomology.  They stated that, even under low stress, he would have increased anger and irritability, more frequent and severe anxiety attacks, and become hvperviqilant, feeling threatened or fearful and, consequently, act withdrawn or hostile.  They further stated that the applicant was not able to relate predictably in work situations, demonstrate emotional reliability, or often not able to relate in an emotionally stable manner.  His cognitive processes were interrupted on a daily basis by intrusive thoughts, severe anxiety or anger, and side effects of psychotropic medication.  In conclusion, the clinical psychologist stated that after seeing several thousand combat veterans over 23 years, he could state with a high degree of certainty that significant improvement was unlikely. 

22.  On 3 April 1995, the VA continued the applicant's service-connected disability rating at 100 percent.  This decision was based upon the reports from the VA Medical Center, Columbia, South Carolina, which indicated the veteran had 1-2 nightmares per night about his experiences in Vietnam and the killing he witnessed. On 25 May 1995, the Department of Veterans Affairs (VA) notified the applicant that his PTSD was considered permanently and totally disabling. 

23.  On 12 March 1998, the applicant filed a complaint in the United States District Court for the District of South Carolina, Florence Division, seeking disability retirement benefits from the Army.  On 24 July 1998, the case was transferred to the Court of Federal Claims.  Action on his case is pending the outcome of this Board's deliberations.

24.  In the processing of this case, a medical advisory opinion was obtained from the United States Army Physical Disability Agency (USAPDA).  The opinion expressed, in effect, that while the applicant may have had mental difficulties while he was serving in the Army, that he was treated by several psychiatrist and none of them found his condition so debilitating as to render him unfit for further service.  The USAPDA further expressed that the doctors who treated and evaluated the applicant prior to his separation had all of his past medical files and access to his commanders and past military records.  The USAPDA stated that although the applicant presented many opinions from psychiatrists who have treated him over the years indicating he suffered from PTSD when he was discharged, none of them had the advantage of the psychiatrists who treated him at discharge.  The USAPDA also stated that the physicians who observed and worked with the applicant for months in 1975 were of the opinion that the applicant's main problems were his personality and his inability to adapt to military life.  These psychiatrists also stated it was not unusual for a person with the applicant's personality traits to function well for many years and then suddenly act out because things did not go their way and that this behavior was not inconsistent with what happened in 1975.  The USAPDA stated that there was no compelling evidence to disregard the numerous opinions/findings of the military medical experts that the applicant met medical retention standards at his separation in 1975.  Therefore, the USAPDA concluded that there is no error or injustice regarding the applicant's separation and that the applicant was not entitled to a medical evaluation board/physical evaluation board in 1975. 

25.  On 3 July 2003, the applicant through his counsel provided a rebuttal to the USAPDA advisory opinion.  Counsel stated that the opinion was not credible because of a conflict-of-interest; the undisclosed author of the USAPDA opinion (Dr. A) is the same psychiatrist who in 1975 cleared the applicant as "fit for separation" and is now the USAPDA's senior psychiatrist.  Counsel stated that the opinion revealed facts that only Dr. A would have known.  Counsel stated Dr. A did not recuse himself nor refer the case to another psychiatrist.  Counsel stated that Dr. A's past role in the case constitutes prima facie bias.  Dr. A willingly and secretly placed himself in the conflicting role of USAPDA advocate while seeking to personally justify his own 1975 diagnosis of the applicant.  Counsel stated Dr. A is also inclined to protect his professional reputation and avoid embarrassment as the agency's chief psychiatrist. 

26.  The applicant, through his counsel, provided rebuttal forensic expert opinions in support of his case.  Dr. H was the applicant's attending VA psychiatrist from 1977 to 1984 and is now the Clinical Professor and Director of Forensic Psychiatry at the University of Alabama.  The second rebuttal expert is Dr. M. A., Professor of Psychiatry at the National Capital Military Residency Program, who, since 1993, teaches Army psychiatrists at Walter Reed Army Medical Center and from 1993-1999, served on the VA's External Peer Review Program.  Counsel stated that Dr. M. A. offers an objective, expert rebuttal of the advisory opinion to avoid any perception of a bias. 

27.  The expert opinions concluded that the USAPDA incorrectly argued that the applicant was simply predisposed to bad character, thus not physically unfit in 1975.  The expert opinions concluded that prior to PTSD diagnostic tools, psychiatry incorrectly presumed that combat neurosis was temporary so that recurring symptoms were subsumed under the pejorative label of a "chronic" personality disorder.  Moreover, a personality disorder "usually remains constant," while the applicant's performance and symptoms showed a pattern of decline consistent with PTSD.  The applicant was medically disabled with a 50% or greater rating in 1975. 

28.  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-III-R, pages 247 through 251.  While psychiatrists have only categorized PTSD 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 symptomology was categorized as hysterical neurosis.  Although the current label of PTSD is of rather recent acceptance, the idea that catastrophes and tragedies can result in persistent emotional and psychological symptoms is common even among the lay public.

29.  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.  A discharge under other than honorable conditions is normally considered appropriate. 

30.  Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade or rating because of disability incurred while entitled to basic pay.

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

32.  Army Regulation 635-40 provides that a soldier who is charged with an offense or is under investigation for an offense for which he could be dismissed or given a punitive discharge may not be referred for physical disability processing.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record clearly shows the applicant was an outstanding soldier, that he performed his duties well, that he was promoted through the ranks to sergeant first class (SFC/E-7), and that he was not involved in any recorded misconduct prior to the night he and his wife were involved in an altercation that led to his discharge under chapter 10, AR 635-200.

2.  The evidence of record shows the applicant served honorably in Vietnam and was awarded the Silver Star for gallantry in action in connection with military operations involving conflict with an armed hostile force.  The evidence of record shows the applicant's unit was pinned down and surrounded in a rice paddy, when he rushed in and pulled his fallen comrades to safety.  He administered first aid, returned to his position, and was instrumental in preventing the enemy from overrunning his unit.

3.  The evidence of record also shows that the applicant was hospitalized for psychiatric reasons several times following his return from Vietnam and was treated with psychotropic drugs.  He was also reassigned several times in an effort to find the right assignment for him, in order to lessen the symptoms of his mental distress from combat neurosis.  Not only was he reassigned, but his MOS was also changed to find the appropriate job classification for the changes being exhibited in his personality.  His assignments were limited to duties that did not involve habitual or frequent exposure to loud noises or firing of  weapons.

4.  Although the applicant was found fit to stand trial by a "sanity board," such boards are conducted under Rule for Courts-Martial (RCM) 706.  These boards are not administrative hearing, but rather evaluations of an accused by one or more psychiatrists or psychologists employed by the Government who are charged with answering a limited number of questions, including whether, "at the time of the alleged criminal conduct, . . . the accused had a severe mental disease or defect," whether "as a result of such severe mental disease or defect, [the accused was] unable to appreciate the . . . wrongfulness of his conduct," and whether the accused was able "to understand the nature of the proceedings against [him] or to . . . cooperate intelligently in [his] defense."  A finding that the accused was "mentally responsible" for the purpose of criminal prosecution is not tantamount to a clean bill of health, or even a finding that the Soldier was fit.

5.  Notwithstanding the USAPDA advisory opinion, the Board believes that the applicant was suffering from PTSD at the time of discharge; however, due to it not being a recognized condition at the time of his discharge, or that it was a chronic condition and not temporary as it was believed about combat neurosis, Army psychiatrists concluded that his condition was a "personality disorder, other" for lack of a better category that matched the applicant's symptoms.

6.  Within a year of his separation, the applicant was rated as 30 percent disabled by the VA for "anxiety neurosis."  Over time, this rating has been increased to 100 percent and made a permanent disability.

7.  In light of the USAPDA advisory opinion, the Board does not recommend referring the applicant's records to the USAPDA for a disability assessment.  The Board therefore accepts the VA's April 1977 disability rating of 30 percent as the appropriate rating for the applicant at the time of his separation.

8.  In view of the foregoing findings and conclusions, and in the interest of justice and equity, it would be appropriate to correct the applicant’s records as indicated below.

BOARD VOTE:

__sac___  __jns___  __slp___  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMR’s decision in Docket Number AC77-07160C, dated 21 June 1978.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing that the action separating the individual concerned from active duty on 21 October 1975 is void and of no force or effect;

	b.  showing that on 21 October 1975, he was physically unfit to perform the duties of his office, grade, rank or rating by reason of physical disability at 30 percent disabling in accordance with the VA Schedule for Rating Disabilities; that the disability was permanent; that it was incurred while he was entitled to receive basic pay as a member of the Regular Army on active duty;  that it did not result from misconduct or willful neglect; that it was not incurred during a period of unauthorized absence; that it was incurred in line of duty; and

	c.  by showing that he was relieved from active duty on 21 October 1975 by reason of physical disability, rated at 30 percent disabling in accordance with the VA Schedule for Rating Disabilities; and that, effective 22 October 1975, he was permanently retired under the provisions of Title 10, United States Code, section 1201, with entitlement to retired pay of the highest grade satisfactorily held within the meaning of Title 10, United States Code, section 1372.

			Samuel A. Crumpler
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2002076652	
SUFFIX		
RECON		
DATE BOARDED	20031216	
TYPE OF DISCHARGE	GD	
DATE OF DISCHARGE	19751021	
DISCHARGE AUTHORITY	AR 635-200 C10  	
DISCHARGE REASON	A50.00	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	108.0000	
2.		
3.		
4.		
5.		
6.