BOARD DATE: 30 June 2016 DOCKET NUMBER: AR20150008161 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __x______ __x______ ___x_ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 30 June 2016 DOCKET NUMBER: AR20150008161 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decisions of the ABCMR set forth in Docket Number AC87-07427, dated 3 May 1989, and Docket Number AC87-07427D, dated 24 June 1998. ___________x______________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 30 June 2016 DOCKET NUMBER: AR20150008161 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests correction of his records to show he was medically retired. 2. The applicant states he was not properly discharged. He further states: a. He entered active duty on 15 May 1973. He completed basic training at Fort Jackson, SC, and advanced individual training for military occupational specialty (MOS) 76Y (unit supply specialist) at Fort Knox, KY. He was reassigned to Korea in February 1974. He was released from active duty on 14 February 1975 upon expiration of his term of service. He had no record of nonjudicial punishment under Article 15 of the Uniform Code of Military Justice. He did not reenlist. b. He enlisted again on 6 June 1975 for MOS 11B (light weapons infantryman). He completed advanced individual training at Fort Polk, LA. He was reassigned to the Panama Canal Zone on 15 August 1975. c.  He and his wife had arguments, but he never struck his wife and children. He was never a drug abuser and he never had auditory hallucinations, suicidal ideations, or perceptual abnormalities. His former psychiatrist did not suggest anything to him. d.  He expressed that his duties were causing him some stress and he requested a change in MOS from 11B to 76Y. e.  He did not have schizophrenic symptoms as noted in item 42 (Psychiatric) of his Standard Form 88 (Report of Medical Examination), dated 22 July 1977. f.  He was medically evacuated to the Dwight David Eisenhower Army Medical Center (DDEAMC), Fort Gordon, GA, for medical evaluation and treatment. g.  He was told by the ward doctor at DDEAMC that he was going to be discharged, but the reason was never mentioned. Two days later, one of the medical ward personnel told him he was going to be discharged from active duty, but he did not mention for what reason. h.  He was brought into a small room and the ward doctor and two other officers instructed him to sign and place his initials on some documents. He signed them in fear. He could not read well because of blurred vision due to the medication administered to him. He was disadvantaged and he had too many episodes of body stiffness during his stay at Fort Gordon, GA. He never desired to be discharged from the Army. i.  He was called to the front desk a few days later to sign out, which he did. He was given a shot, a yellow envelope, and a small bag with medications. Two Soldiers took him to the airport and left him at the counter. He does not remember who brought him from Georgia to Puerto Rico and he does not recall doing it by himself. j.  He discovered the contents of the documents years later when he recovered some of his sight and could read well with prescription eyeglasses. He discovered he was sent home on a permanent change of station on 8 August 1977 under DDEAMC Orders 139-2, dated 5 August 1977. Orders 178-3, dated 13 September 1977, ordered him to report for separation processing on 15 September 1977, but he was sent home on 2 August 1977. He was not present at Fort Gordon, GA, for the discharge proceedings and his DD Form 214 (Certificate of Release or Discharge from Active Duty) lacks his signature. This DD Form 214 should be declared void. k.  He was improperly separated. He was told several days prior to his physical evaluation board (PEB) that he was going to be discharged. The decision of the PEB was made days before the hearing. l.  He was treated by the Veterans Administration(VA) (now known as the Department of Veterans Affairs) hospital in Puerto Rico as an active duty Soldier until 24 January 1978 or later because he did not have a DD Form 214. The VA doctors followed the treatment according to the medical diagnosis of the DDEAMC PEB. m.  The doctor at DDEAMC always found him in normal condition and he passed all examinations. The DDEAMC ward doctor expressed that he had planned his schizophrenic symptoms. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests correction of the applicant's records to show: * he was medically retired instead of separated with severance pay * retroactive promotions from 15 September 1977 to 24 April 2015 2. Counsel states the applicant was improperly discharged. 3. Counsel provides: * two DD Forms 214 * applicant's self-authored statements * U.S. Total Army Personnel Command letter, dated 30 July 2002 * DD Form 215 (Correction to DD Form 214) * Congressional correspondence * medical record extracts * Headquarters, DDEAMC, Orders 134-6, dated 29 July 1977 * Headquarters, DDEAMC, Orders 139-2, dated 5 August 1977 * Headquarters, DDEAMC, Orders 178-3, dated 13 September 1977 * DA Form 137 (Installation Clearance Record) 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 AC87-07427 on 3 May 1989 and Docket Number AC87-07427D on 24 June 1998. 2. The applicant provides new arguments not previously considered by the Board that warrant consideration at this time. 3. The applicant enlisted in the Regular Army on 15 May 1973. He completed training and he was awarded MOS 76Y on 25 January 1974. 4. He served in Korea during the period 13 February 1974 to 12 February 1975. 5. On 14 February 1975, he was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Annual Training). He was present for out-processing from active duty as evidenced by his signature on his DD Form 214. 6. After a break in service, he again enlisted in the Regular Army on 4 June 1975. 7. Item 35 (Record of Assignments) of his DA Form 2-1 (Personnel Qualification Record – Part II) shows he was assigned to Company B, 4th Battalion, 20th Infantry Regiment, Panama Canal Zone, on 8 September 1975. While in Panama, he served in MOS 11B. 8. His Standard Form 502 (Clinical Record – Narrative Summary), dated 10 May 1977, shows he was referred to the Panama Canal Zone Mental Health Center by the 519th Medical Clinic Drug and Alcohol Division by reason of voluntary admission for a drug-free environment and for outlining a long-term program of treatment. He was admitted on the same date. a.  He admitted he had been a chronic user of drugs for the past 9 years. He stated his recent drug use had been limited to marijuana and cocaine, but in the past he had used Darvon (propoxyphene), cocaine, "speed" (amphetamines), lysergic acid diethylamide (LSD), heroin, and a number of "uppers" (amphetamines) and "downers" (depressants). b.  Over a period of 2 weeks, he persisted in complaining of both visual and auditory hallucinations. His auditory hallucinations consisted primarily of voices, whom he did not recognize, telling him to kill himself. His visual hallucinations consisted regularly of visualizing a threatening male figure near his bed at night. He was prescribed medication and he continued to express the fact that he had visual hallucinations into his third week of hospitalization. c.  His diagnoses were considered to be acute schizophrenic episode and drug dependence, and these diagnoses were made with some reservations. d.  His transfer to the continental United States for continuing evaluation, treatment, and disposition was recommended. 9. His Standard Form 502, dated 22 July 1977, shows he was awaiting a medical evaluation board (MEB) and: a.  He was admitted to the Panama Canal Zone Mental Health Center on 10 May 1977 following a self-referral. His wife had recommended that he see a doctor because of the change in his behavior they both had noticed. The behavioral change consisted of increased irritability and shortness of temper with his family, so that he was striking his wife and children at times. b.  He attributed the behavioral change to work-related stresses, feelings of tension, restless sleep, and concerns of drug abuse. c.  He attributed the onset of his problem with drugs to a tour in Korea during 1972 to 1973. He indicated he was taking Darvon and he did not obtain adequate relief so he turned to non-prescription sources and eventually to marijuana, cocaine, LSD, opiates, and other amphetamines and depressants. d.  He reported experiencing auditory hallucinations of a woman's voice calling his name, progressing to derogatory content, including suggestions that he kill himself since he was not worthy to live, and visual perceptual abnormalities in the form of a tall male in black clothing with a hat and cigar standing next to him or his bed. He thought the figure might have represented his father whom he loved less than his mother and he denied that this formulation was suggested by his former psychiatrist. e.  In the hospital in the Panama Canal Zone, he presented with a clear mental status, but he subsequently became anxious and reported hallucinations. He was treated with anti-psychotics with a rapid resolution of symptoms. f.  Marijuana was his only substance abuse the year prior to his admission to DDEAMC on 6 June 1977. g.  His diagnoses consisted of: (1)  moderate acute schizophrenic episode, treated and improved, manifested by anxiety; (2)  auditory hallucinations, personality change, deteriorations of social judgement, minimal stress, routine duty in the Panama Canal Zone, predisposition unknown; (3)  marked impairment for further military duty; and (4)  mild impairment for social and industrial adaptability. h.  The following recommendations were rendered: * referral to a PEB for consideration of medical separation and discharge to his own care * outpatient follow-up at the VA treatment facility nearest his home * continuation of present medication until directed otherwise 10. His DA Form 3947 (MEB Proceedings), dated 22 July 1977, shows: a.  the MEB found him medically unfit for further military duty, mentally competent for pay purposes, and able to understand the nature of and to cooperate in PEB proceedings; b.  he was diagnosed with the same conditions listed on his Standard Form 502, dated 22 July 1977; c.  the MEB recommended referral to a PEB; d.  he indicated he had no desire to remain on active duty; and e.  the findings and recommendations of the MEB were approved on 26 July 1977. 11. On 28 July 1977, a PEB diagnosed him with acute schizophrenia with slight impairment of social and industrial adaptability. The PEB found him unfit and recommended a 10-percent disability rating and separation from the service with severance pay. 12. On 29 July 1977, his PEB Liaison Officer advised him of the findings and recommendations of the PEB and of his rights. He concurred with the findings and recommendations of the PEB and he waived his right to a formal hearing. 13. Headquarters, DDEAMC, Orders 134-6, dated 29 July 1977, assigned him to a rural free-delivery address in Utuado, Puerto Rico, effective 2 August 1977. 14. Headquarters, DDEAMC, Orders 139-2, dated 5 August 1977, amended Orders 134-6 and changed his reporting date to 8 August 1977. 15. His DA Form 4029 (Patient's Clearance Record) and DA Form 137 (Installation Clearance Record), both dated 8 August 1977, show he was cleared for a permanent change of station move to his home. 16. On 26 August 1977, the Chief, Disability Section and Retirement Branch, U.S. Army Military Personnel Center, advised the DDEAMC Commander of the applicant's directed separation and other required administrative actions. 17. On 30 August 1977, the Commander, U.S. Army Military Personnel Center, announced approval of the PEB recommendation and directed the applicant's immediate discharge with a 10-percent disability rating and authorization for severance pay. 18. On 15 September 1977, the applicant was honorably discharged. His DD Form 214 for this period shows: a.  He was discharged due to physical disability under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-19e(3). He was assigned a disability rating of 10 percent and authorized severance pay. He was assigned a reenlistment code of "4." b.  He was not available to sign item 29 (Signature of the Person Being Separated). 19. He provided a copy of an illegible and unidentified VA form in which he indicates he was still serving on active duty on 24 January 1978. He also provided a copy of his Department of Defense/Uniformed Service Identification and Privilege Card and two Honorable Discharge Certificates. 20. On 6 July 1983, the Board determined his case was not filed within the time limits prescribed by Title 10, U.S. Code, section 1552(b), and that it was not in the interest of justice to excuse his failure to timely file. 21. On 3 May 1989, the Board denied his request for reinstatement to active duty. 22. He provided a VA letter, dated 17 January 1992, certifying his 100-percent service-connected disability rating from the VA and entitlement to individual and dependent Commissary Store and Exchange privileges from the Armed Forces. 23. On 11 July 1996, his request to the ABCMR for reconsideration was denied. He was instructed to provide new and relevant information. 24. A memorandum from the Deputy Assistant Secretary of the Army (Review Boards), dated 1 May 1998, notified the applicant that his previous request for reconsideration may have been administratively denied when it should have been considered by the ABCMR. He was advised that he could request reconsideration and he was instructed to specifically identify the pertinent new evidence that he previously submitted with available copies. 25. He submitted multiple requests for reconsideration which were subsequently denied by the ABCMR. He was instructed to provide new and relevant information on each occasion. The ABCMR denied his requests for reconsideration on the following dates: * 24 June 1998 * 8 June 1999 * 7 August 2000 * 31 October 2002 * 4 February 2004 26. He provided a copy of his VA Rating Decision, dated 25 January 1994, showing he was granted dependent educational assistance and a 70-percent disability rating for his service-connected nervous disorder. 27. On 30 July 2002, he was issued a DD Form 215 changing his reenlistment code from "4" to "3." 28. On 7 March 2016, a Psychiatric Addendum to his MEB was provided by a psychiatrist from the U.S. Army Medical Department Activity, Fort Riley, KS, for the ABCMR. The Psychiatric Addendum summarized the applicant's entire mental status and treatment. No irregularities were noted. 29. On 29 March 2016, a copy of the MEB Psychiatric Addendum was provided to the applicant for his review and he was given the opportunity to provide a response. 30. On 7 April 2016, he responded and noted his active duty period of service was listed incorrectly. He indicated his first enlistment was during the period 15 May 1973 to 14 February 1975 and his second enlistment was during the period 4 June 1975 to 15 September 1977. He further stated: a.  He was not present for his discharge process on 15 September 1977 at Fort Gordon, GA. He was found medically unfit for further military service and he made a permanent change of station move from DDEAMC, Fort Gordon, GA, to his home. b.  In September 1977, he was at the VA hospital in San Juan, Puerto Rico, where he received medical treatment as an active duty Soldier because of the lack of a DD Form 214. He requested a DD Form 214. His signature is not on the DD Form 214 for the period ending 15 September 1977. His signature is on the DD Form 214 for the period ending 14 February 1975 because he was present for separation processing. c.  He does not know who brought him to Puerto Rico. He has no memory of getting on/off or being on a plane. He found himself standing in front of an airline counter in Puerto Rico and nobody was around, just him. 31. On 9 April 2016, he provided an additional response. On 18 April 2016, he provided a third response and indicated this response superseded his previous letter, dated 9 April 2016. He restated his earlier comments and further stated: a.  His only words to Lieutenant Colonel  (LTC) L____, his doctor at DDEAMC, were "you are destroying my life." Nobody was there to represent him. b.  He did not object to anything because he was very scared of what was happening to him at DDEAMC and he did not want to be there. He was forced to go to a mental hygiene clinic in the Panama Canal Zone for a medical evaluation prior to his arrival at DDEAMC. He is unaware of who ordered him to go. He was medically evacuated to DDEAMC and he was not aware of it because he was medicated at the clinic. He was medicated again when he was transferred to Puerto Rico. c.  Any documents containing his signature were done by instinct. LTC L____ was aware he could not see well because of the medication side effects. Copies of his MEB and Army orders were in a box at his house for a long period of time after his discharge. He kept silent for years because he wanted to forget and forgive. d.  He is a disabled American veteran and has financially survived with VA and social security compensations. e.  He desires an interview by the Department of Defense or Army personnel with representation by an American Legion officer and travel at U.S. government expense. 32. He provided an employment rejection letter from the Immigration and Naturalization Service and a Navy Recruitment Command enlistment denial letter. REFERENCES: 1. Army Regulation 635-40 establishes the Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. a.  The mere presence of impairment does not, in and of itself, justify a finding of unfitness because of physical disability. b.  The medical treatment facility commander with primary care responsibility evaluates those referred to him or her and, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refers the member to an MEB. Those members who do not meet medical retention standards are referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition. c.  Disability compensation is not an entitlement acquired by reason of a service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service. 2. Army Regulation 635-40, paragraph 4-19e(3), in effect at the time, stated that based upon review in Headquarters, Department of the Army of the findings and recommendations of the PEB, the Commanding General, U.S. Army Military Personnel Center, would take final action for the disposition of the member, by direction of the Secretary of the Army when separation for physical disability with severance pay under Title 10, U.S. Code, sections 1203 or 1206. 3. Title 10, U.S. Code, chapter 61, provides for the disability retirement or separation of a member who is physically unfit to perform the duties of his or her office, rank, grade, or rating because of a disability incurred while entitled to basic pay. 4. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 5. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice on the part of the Army. An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from impairment that disqualifies him or her from further military service. The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability. Furthermore, unlike the U.S. Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The U.S. Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career, while the VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability. 6. Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It states the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty. The DD Form 214 is of vital importance to the separating Soldier and must be properly prepared according to prescribed guidance. The instructions for completing item 29 of the DD Form 214 stated when the separatee could not or would not sign, leave this item blank on copies delivered to the separatee. Enter on all other copies, "Separatee unavailable for signature" or "Separatee declined to sign," as appropriate. 7. Army Regulation 15-185 (Army Board for Correction of Military Records) provides that the ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. The Army may not pay attorney’s fees or other expenses incurred by or on behalf of an applicant in connection with an application for correction of military records under Title 10, U.S. Code, section 1552. DISCUSSION: 1. The applicant was found medically unfit for duty and processed through the Army Physical Disability Evaluation System. 2. His Standard Forms 502 show he admitted to previous drug usage of marijuana, Darvon, cocaine, LSD, heroin, and a number of amphetamines and depressants. His referral by the 519th Medical Clinic Drug and Alcohol Division confirms the reason for his admission to the Panama Canal Zone Mental Health Center. 3. A PEB recommended his separation with severance pay and assigned a 10-percent disability rating for his unfitting condition of acute schizophrenia. 4. Although he contends no one was around to assist him during his PEB process, the evidence of record shows his PEB Liaison Officer explained the result of the findings and recommendations and his legal rights pertaining to his PEB. Further, he concurred with the findings and recommendations of the PEB. 5. Since he had less than 20 years of active service and his medical condition was rated less than 30-percent disabling, he was discharged by reason of disability with severance pay. 6. His records are void of and he failed to provide evidence showing his processing through the Army Physical Disability Evaluation System was not conducted in accordance with the governing regulation. 7. Although he questions his separation processing, he was properly discharged from the Army. A Soldier does not have to sign the DD Form 214. 8. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 9. There is no statutory or regulatory right to a formal hearing. By regulation an applicant is not entitled to a hearing before the Board. The Director of the ABCMR, or a panel of the Board, can authorize a personal appearance. In this case, the evidence of record is sufficient to render a fair and equitable decision at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150008161 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150008161 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2