IN THE CASE OF: BOARD DATE: 30 January 2018 DOCKET NUMBER: AR20160005044 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. IN THE CASE OF: BOARD DATE: 30 January 2018 DOCKET NUMBER: AR20160005044 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :RCJ :DRA :RAH DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 30 January 2018 DOCKET NUMBER: AR20160005044 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, in effect, correction of his records to show he was honorably discharged due to medical reason(s). 2. The applicant states after reading over his medical records after nearly 40 years, he has found a clear and unmistakable error. Colonel V_ H_ stated on page 3 of his Standard Form (SF) 600 (Health Record – Chronological Record of Medical Care) "patient needs to be boarded out of the Army." Based on his medical records, he should have been medically discharged for the diagnoses of conversion reaction (code 3001) and psychophysiological musculoskeletal disorder. His attached medical records with the diagnosis codes are his supporting documents. 3. The applicant provides the following: * SF 502 (Clinical Record – Narrative Summary) * SF 513 (Clinical Record – Consultation Sheet) * SF 509 (Clinical Record – Doctor's Progress Notes) * SF 600 (Chronological Record of Medical Care) * DA Form 8-275-3 (Clinical Record Cover Sheet) * DD Form 214 (Report of Separation from Active Duty) * letter from the Department of Veterans Affairs (VA) CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations. 2. The applicant enlisted in the Regular Army (RA), in pay grade E-1, on 29 December 1975, for 4 years. He did not complete advanced individual training for award of a military occupational specialty. 3. He provides the following: a. An SF 502 showing: (1) The applicant was admitted to the Hawley Army Hospital on 5 April 1976 for blackout spells, dizziness, and pain in his neck. The form indicated he had a history of a fall while playing basketball on 26 March 1976, when he fell on his back and blacked out. Since that time, he had experienced several blackouts. (2) He had just completed basic combat training and was a current student for the job of unit clerk. There were no associated symptoms to suggest seizures or brain concussion. A review of the system was positive for the fact he was carrying a temporary profile for back and neck pain from 29 March to 5 April 1976 with codes C and D, no crawling, stooping, etc. He was known to have flat feet and some muscle spasm in the past and the lumbar area while a driver. (3) On several occasions it was noted that his behavior was rather theatrical. A consultation was obtained with the Psychiatric Service on two occasions. It was their contention that it was a greater possibility that the applicant had a post-concussion syndrome rather than being hysterical, which was suspected by the referring physician. There was a normal skull series and all other tests and findings were normal. (4) He was referred to the neurologist at the VA hospital where he was thoroughly examined and admitted for further evaluation. His brain scan was normal and electromyogram of the muscles of the upper and lower extremities proved normal. He was encouraged to ambulate. He was discharged back to duty on 27 April 1976, with a diagnosis of conversion reaction. b. An SF 513 shows the applicant underwent a mental hygiene consult on 27 April 1976. The form indicated the applicant related his inability to concentrate and he did not think he could complete his term of service. The examining physician noted no apparent thought or personality disorders. c. An SF 509 showing he received medical treatment from 27 April 1976 to 5 May 1976 for spells and dizziness. The attending medical physician, V_ H_, indicated on the form "patient needs to be boarded out of the Army." 4. He was reported absent without leave (AWOL) on 27 April 1976 and returned to duty on 23 May 1976. He was again reported AWOL on 1 June 1976 and returned to duty on 2 June 1976. 5. He was hospitalized on 3 June 1976 and returned to duty on 4 June 1976. 6. He also provides a DA Form 8-275-3, dated 4 June 1974, showing he was diagnosed with conversion reaction (code 3001) and psychophysiological musculoskeletal disorder (code 3015). 7. On 2 July 1976, the applicant's company commander stated that he felt the applicant should be eliminated from the military under the provisions of chapter 13, Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), for unsuitability, because of his excessive absences from work, his poor appearance, his refusal to respond to counseling, and his constant failure to obey orders and instructions. 8. On 2 July 1976, the applicant’s company commander notified the applicant he was recommending the applicant be eliminated from the service under the provisions of AR 635-200, paragraph 13-5b (3), for unsuitability. He stated the reason for the proposed action was the applicant's failing to respond to counseling, training, rehabilitative attempts, and his constant disobeying of lawful orders. He advised the applicant of his rights. 9. On 2 July 1976, after consulting with counsel, the applicant acknowledged receipt of the proposed separation. He also acknowledged he could receive a general discharge and the results of the receipt of such a discharge. He waived his rights and elected not to submit a statement in his own behalf. His company commander recommended the applicant's discharge on the same date. 10. On 30 July 1976, he underwent a mental status evaluation. His behavior was found to be passive and aggressive. He was fully-oriented and his thinking process was clear. The examining physician, a behavior science specialist, stated the applicant saw his separation from the service as the solution to his problems. The applicant exhibited evidence of hysteria and impaired insight and judgment indicative of sociopathic personality disorders. He found the applicant had no psychiatric condition that would warrant a medical discharge and psychiatrically cleared the applicant for any administrative action deemed necessary. 11. On 2 August 1976, the applicant's battalion commander recommended approval of the applicant's immediate separation. 12. On 4 August 1976, the separation authority approved the applicant’s discharge and directed the issuance of a general discharge. 13. The applicant was discharged accordingly on 10 August 1976. His DD Form 214 shows he was discharged with a general, under honorable conditions, characterization of service and he was issued a General Discharge Certificate. He completed 6 months and 16 days of active service and had 26 days of time lost. 14. He further provides a letter, dated 13 April 2009, wherein the VA advised him of his active duty service and characterization of his discharge. 15. There is no indication he petitioned the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his general discharge. 16. On 26 July 2017, an advisory opinion was provided by the Senior Medical Advisor, Army Review Boards Agency (ARBA). The ARBA medical advisor reviewed his case for alleged medical condition(s) warranting separation through medical changes or medical conditions not considered during medical separation processing. The ARBA medical advisor reiterated the applicant's requests and period of military service. After reviewing the available records the Senior Medical Advisor concluded: a. The applicant met medical retention standards for multiple somatic symptoms (physical, medical, and/or behavioral) with normal neurological, medical, radiological, electrophysiological, and laboratory evaluations in accordance with chapter 3, AR 40-501 (Standards of Medical Fitness) and following the provisions of AR 635-40 (Personnel Separations – Disability Evaluation for Retention, Retirement, or Separation) that were applicable to the applicant's era of service. A review of the available documentation found no evidence of a medical disability or condition that would support a change to the character or reason for the discharge in this case. b. Based on the information available, the applicant did not have mitigating medical or behavioral health conditions for the offenses which led to his separation from the Army. 17. The advisory opinion was provided to the applicant on 27 July 2017 for acknowledgement/rebuttal. He did not respond. REFERENCES: 1. AR 635-200, in effect at the time, set forth the policy and prescribes the procedures for the administrative separation of enlisted personnel. The regulation stated in: a. Paragraph 13-5b – provided for separation for unsuitability, which included inaptitude, character and behavior disorders, apathy, defective attitudes, inability to expend effort constructively, alcoholism, and homosexuality. When separation for unsuitability was warranted, an honorable or general discharge was normally considered appropriate. b. Paragraph 3-7a – an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate. 2. AR 635-40, in effect at the time, established the Physical Disability Evaluation System (DES) and set forth policies, responsibilities, and procedures that apply in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. Separation by reason of disability (i.e., a "medical discharge") requires processing through the DES. Only the unfitting conditions or defects and those which contributed to unfitness would be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. 3. On 3 September 2014, the Secretary of Defense gave written guidance to Service Discharge Review Boards and Service Boards for Correction of Military/Naval Records. The memorandum directed them to consider the revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on requests for upgrades in the character of service for former service members who had a valid diagnosis of PTSD. 4. On 25 August 2017, the Office of the Undersecretary of Defense for Personnel and Readiness issued clarifying guidance for the Secretary of Defense Directive to DRBs and BCM/NRs when considering requests by Veterans for modification of their discharges due in whole or in part to: mental health conditions, including PTSD; traumatic brain injury (TBI); sexual assault; or sexual harassment. Boards are to give liberal consideration to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on those conditions or experiences. The guidance further describes evidence sources and criteria and requires Boards to consider the conditions or experiences presented in evidence as potential mitigation for misconduct that led to the discharge. DISCUSSION: 1. The applicant's available medical records show, while in a student status for the job of unit clerk, he was hospitalized from 5 to 27 April 1976, for spells and dizziness. The system indicated he was also carrying a temporary profile for back and neck pain. During his hospitalization, a psychiatric consult was obtained and all of his tests and findings were normal. An attending physician indicated on the SF 600 that the applicant needed to be boarded out of the Army. The form does not indicate what type of board action he was referring to, an administrative or medical board. He was discharged back to duty on 27 April 1976, with a diagnosis of conversion reaction. 2. His company commander initiated elimination action because of the applicant's excessive absences from work, his poor appearance, his refusal to respond to counseling, and his constant failure to obey orders and instructions. 3. The ARBA medical advisor conducted a review of the applicant's military records and the documentation he submitted and found no evidence to show the applicant had a mitigating boardable behavioral health condition during his period of military service and/or at the time of his discharge from the Army. 4. His administrative separation was accomplished in compliance with applicable regulations with no procedural errors that would tend to jeopardize his rights. He was properly discharged in accordance with pertinent regulations with due process. The separation authority determined his performance and conduct did rise to the level required for an honorable discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160005044 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005044 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2