BOARD DATE: 28 April 2020 DOCKET NUMBER: AR20170011413 APPLICANT REQUESTS: * physical disability discharge or retirement * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-authored statement * Privacy Act Release Form * Wasco County Veterans Services letter * Standard Form 89 (Report of Medical History), dated 2 November 1970 * DA Form 3647-1 (Clinical Record Cover Sheet), dated 29 March 1971 * Standard Form 50 (Narrative Summary (NARSUM)), dated 22 June 1971 * DA Form 8-118 (Medical Board (MEB) Proceedings), dated 25 June 1971 * Standard Form 88 (Report of Medical Examination), dated 25 June 1971 * DA Form 3647-1, dated 30 June 1971 * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service in the Army National Guard (ARNG) of Oregon and as a Reserve of the Army) * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) * State of Oregon Special Orders Number AR-150 Extract, dated 3 August 1971 * DD Form 4 (Record of Military Status of Registrant), dated 27 August 1971 * post-service medical records in excess of 50 pages * sister’s statement in support of claim, dated 11 August 2010 * Family health Care Center letter, dated 9 November 2012 * excerpts from Title 10, U.S. Code, chapter 61 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the Army Board for Correction of Military Records) ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. He should have been medically separated instead of relieved from active duty to the Oregon Army National Guard (ARNG), who in turn improperly discharged him without a medical review. The Medical Evaluation Board (MEB) incorrectly claimed his condition existed prior to service (EPTS). b. His claim is based on the false official statements made by the Army physician stating there was a documented history of pre-service skin lesions and the Oregon ARNG falsifying official statements and forging the applicant’s signature. His physical disability was determined “not the result of State Service” yet he went from being in very good health per his reported medical history at the time of enlistment on 2 November 1970, to unfit for enlistment per a special examination on 25 June 1971. c. The Oregon ARNG discharged him for physical disability per Army Regulation 635-200, section VI, 32a, which states “Commanders will ensure that Soldiers initiated for separation under this regulation who are required to obtain a physical examination per Title 10, U.S. Code section 1145. No such examination was made by the Oregon ARNG. d. The earliest medical documents that make measurements show his psoriasis covers to 30 percent of his body, often stated as 30 percent. The Department of Veterans Affairs (VA) Schedule of Rating Disabilities (VASRD) code 7816 for psoriasis indicates a 30 percent VA disability rating if 20 to 40 percent of the body is affected. He also meets the requirement for medical retirement because the disability is at least rated 30 percent by the VA. e. The only way from him to go from very good health to unfit for enlistment in less than 1 year, during which there was very little time not in military service is by intentional falsifications, fraudulent information, and forgeries on official documents. The condition for which the applicant was found unfit for service is now service-connected by the VA. The determination that his disability was not due to service is based on the false official statements of the physician and the applicant was not given any options as he was discharged from the ARNG when he was not present. f. After his Active Duty for Training time, he returned home to Oregon from Fort Dix, NJ and did not return to the Oregon ARNG. The Oregon ARNG forged his name on a Personnel Action Request, which can be seen in the discrepancies with the signature and how it deviates from his normal signature as it is lacking a middle initial. His NGB Form 22 states he was discharged without personal notice as he left the state of Oregon prior to receipt of orders, but this is false as he was living in Oregon City, Oregon at the time. g. Additionally, there is no documented skin condition prior to service and his initial diagnosis of psoriasis was while he was at Fort Dix, NJ. How can this not be the result of State Service? The VA has also rated his psoriasis and secondary arthritis complications as service-connected at 100 percent. 3. A Standard Form 89 shows the applicant self-reported on his Report of Medical History for the purpose of enlistment, dated 2 November 1970 that he was in very good health and indicated he took shots for past allergies. Although partially illegible, the form appears to show the applicant claimed to have seasonal hay fever, asthma, potentially a foot condition, broken bones as a child, some difficulty in walking long distances, not disqualifying, and recent healing finger amputation. 4. His accompanying Standard Form 88 (Report of Medical Examination) completed by a medical officer after physical examination at the time of his enlistment is not in his available records for review. 5. The applicant enlisted in the ARNG of Oregon on 4 November 1970. 6. He was ordered to Active Duty for Training at Fort Dix, NJ, on 19 February 1971. 7. A Clinical Record Cover Sheet, dated 29 March 1971, shows: a. The applicant was seen at the Infectious Disease Service on the date of the form and stayed in that facility for 2 days. He was diagnosed with Rubella, which was treated, improved and found to have been in the line of duty. b. Underneath the typed diagnosis is a handwritten note which appears to state: “document shows my white blood count 6000, which is normal, not an indicator of Rubella. This I believe is the first sign of riot gas poisoning.” 8. A NARSUM, completed by Dr. J____ K____ dated 22 June 1971, shows: a. The applicant had a scaling rash on his penis, between his buttocks, and on his scalp. The applicant previously noticed the scaling rash, but it recently became more prominent. His laboratory data was all within normal limits and he did not require inpatient hospitalization. b. The applicant had skin lesions which existed prior to service (EPTS), but became somewhat more noticeable recently. He did not desire to remain in the service. His diagnosis was psoriasis, EPTS. c. The medical recommendation states the applicant was erroneously inducted into the Army per the provisions of Army Regulation 40-501 (Standards of Medical Fitness), paragraph 2-35r, but was fit for retention per paragraph 3-33w. As such, the applicant may apply for administrative separation from the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-9. 9. A Standard Form 88, dated 25 June 1971, shows the applicant underwent a medical examination at U.S. Walson Army Hospital, Fort Dix, NJ on the date of the form. It shows: a. He was given an “abnormal” examination for skin lymphatics due to scaling of penis and scalp and scaling plaques between buttocks. b. He was diagnosed with psoriasis and given a physical profile rating of “3” in the category of physical capacity or stamina. c. His appearance before an MEB was recommended and he was found qualified for retention on active duty. 10. The applicant’s MEB Proceedings, dated 25 June 1971, show: a. An MEB convened on 25 June 1971 at U.S. Walson Army Hospital, Fort Dix, NJ, wherein the applicant appeared before the Board and did not present any views in his own behalf. b. He was found medically fit for further military service in accordance with medical fitness standards for the condition of psoriasis. A pre-entry physical completed at Lake Osweago, Oregon is referenced, but this document is not in his available records for review nor has it been provided by the applicant. c. His medical condition of psoriasis was found not to have been incurred in the line of duty (LOD), it was EPTS, the cause of which was not incident to service nor was it aggravated by active duty. d. The MEB unanimously found the applicant was unfit for induction per Army Regulation 40-501, paragraph 2-25r because of a documented history of psoriasis; however, he was considered fit for retention on active duty per the same regulation, paragraph 3-33w, with a permanent physical profile rating of “3” in the category of physical capacity or stamina. The MEB recommended his assignment limitation to no strenuous physical activity. e. The findings and recommendations of the Board were approved on 28 June 1971 and the applicant agreed with the Board action on 30 June 1971. 11. A Clinical Record Cover Sheet, signed by Dr. J____ K____, and dated 30 June 1971, after the MEB proceedings shows a. The applicant’s disposition from the General Medicine Service was separation from the service under the provisions of Army Regulation 635-200. b. Listed under selected administrative data is “pre-entry physical: Lake Osweago, Oregon,” a document which is not the applicant’s available record for review, but was presumably available at the time to medical personnel as it is listed on this form as pertinent administrative data. c. Listed under diagnosis is psoriasis is. The entire form is typed and signed, save for a handwritten note wherein someone circled the diagnosis of psoriasis and hand- wrote “LD no EPTS?” The source of that handwritten note is unknown. 12. The applicant’s DD Form 214 shows: a. He was honorable released from Active Duty for Training on 9 July 1971, after 4 months and 21 days and returned to the control of the Oregon ARNG for disposition under ARNG regulations. b. His reason and authority for release from active duty is listed as Army Regulation 635-200, medically unfit, Separation Program Number (SPN) 375 (discharge due to not meeting medical fitness standards at the time of enlistment). 13. The applicant’s NGB 22 shows he was honorably discharged from the Oregon ARNG on 9 July 1971 due to physical disability, not the result of State service per orders dated 3 August 1971. The form shows the applicant was not available for signature and was discharged without personal notice as he left the State of Oregon prior to receipt of orders. 14. Military Department, State of Oregon, Special Orders Number AR-150, dated 3 August 1971 honorably discharged the applicant from the ARNG and as a Reserve of the Army effective 9 July 1971 due to physical disability – not the result of State service, EPTS under the regulatory authority of Army Regulation 635-200, paragraph 5-9, SPN 375. 15. A DD Form 44, dated 27 August 1971, likewise shows that applicant was honorably discharged from the Oregon ARNG and as a Reserve of the Army by reason of physical disability, not the result of State Service, effective 9 July 1971. 16. The applicant provided numerous pages of post-service medical documents, the earliest of which appears to be dated in November 2003, which show his treatment at La Clinica in Hood River, Oregon for psoriasis over 30 percent of his body, rheumatoid arthritis, as well as depression. 17. The applicant’s sister provided a statement in support of the applicant’s claim, which states in pertinent part: a. She is writing in support of her brother’s claim that he was exposed to mustard gas while in basic combat training in the ARNG and that he experienced a lifelong series of health problems as a result. Before he left for the military he had none of these problems. He had no skin problems and no emotional problems. He went into the military as a normal teenage kid, but his behavior was radically different when he returned. His life has been very difficult and his difficulties started during his time in the military when he was exposed to mustard gas and his psoriasis began. b. His primary ailment is psoriasis, which covers 40 percent of his body and he has had for 40 years. It is the cause of his alcoholism and why he removed himself from the family and intimate relationships. He drank to deal with his sense of isolation and shame. He is in constant pain due to his psoriatic arthritis. His feet are deformed and x-rays show advanced deterioration of the bones. Keeping a regular work schedule is impossible for him as it is difficult for his to sit or stand for prolonged periods. c. For many years he was homeless, living in tents and hotel rooms or on the couches of friends. He didn’t get an apartment until recently when he began receiving Social Security disability benefits. It is her belief that her brother’s exposure to mustard gas was the beginning of a lifelong cycle of health problems. As a licensed counselor, she knows that being exposed to toxic substances of any type causes brain damage and other serious physical illnesses or death. Her brother did not get the medical treatment he needed when he was exposed and the military basically washed their hands of him and discharged him without any follow-up care. d. From the paperwork she reviewed, the military went so far as to cover-up the truth and tried to make the psoriasis look like a pre-existing condition. It wasn’t. It’s a tragedy that this experience so seriously changed her brother’s life. It is her believe that his military experience took his opportunities away from him. He deserves the military support he is asking for now. 18. A Family Health Care Center, La Clinica del Carino letter, signed by Dr. G____ P____, dated 9 November 2012, states: a. The applicant was a patient under his care and he requested a letter addressing symptoms he had in the military and the possibility of a misdiagnosis. The applicant reported he suffered from psoriasis and psoriatic arthropathy for over 40 years and feels there may be a connection between toxic gas he was exposed to during military training and his psoriasis. The health records from his initial evaluation are sparse. They do include a description of a non-specific full body rash and an essentially normal complete blood count. b. In his opinion, the applicant’s symptoms were general and the diagnosis of rubella, though possible, is not conclusive. It does not appear that a rubella titer was ever drawn in that time period to confirm the diagnosis. He does think it is possible that the applicant’s symptoms are possibly related to a toxic gas exposure, among many other possibilities, based on those scant records. However, he is not an environmental medicine specialist nor a toxicologist, but the evidence doesn’t seem conclusive either way. 19. A Wasco County Veterans Service letter to the applicant’s Member of Congress, dated 24 January 2017, states in pertinent part: a. The applicant fought with the VA for many years before finally being awarded service-connection for his disabilities. The VA has determined his skin condition is service-connected and awarded him 60 percent for psoriasis, 30 percent for claw feet due to psoriatic arthritis, 10 percent for depression related to chronic health issues, and individual unemployability paid at the 100 percent rate. b. He joined the Oregon ARNG in 1970 and was sent to basic combat training at Fort Dix, NJ in February 1971. During training he was exposed to riot gas poisoning which resulted in his skin condition. The Army determined he was fit for retention, but unfit for enlistment and sent him back to the ARNG for disposition. The Army erroneously stated there was a documented history of psoriasis prior to service, when there is no such documentation. c. The Oregon ARNG repeatedly denied him medical treatment for his skin condition. He then refused to participate in ARNG duties, telling his command to send him to a doctor or send the Military Police. The Oregon ARNG did neither, instead discharging him in absentia. The discharge states he was unavailable to sign due to leaving the State; however, he did not leave the State of Oregon. d. There is no record of him having any skin condition during his enlistment physical on 2 November 1970. He was not provided medical treatment or given the option to have a medical review board determine if he should get a medical discharge or retirement. 20. A copy of the applicant’s VA Rating Decision is not in his available records for review. 21. An advisory opinion was obtained from the Army Review Boards Agency (ARBA) medical advisor on 11 February 2020, which states: a. Based on the available records submitted by the applicant, this case has some concerning qualities to it. First, it was determined that the applicant’s psoriasis and psoriatic arthritis were considered EPTS on his records and board findings. However, there is no documentation, to include his pre-enlistment history to support this statement. Next, the applicant was found unfit for induction, but fit for retention based on the statement of the medical board proceedings signed by Colonel L____ D____, MD who was the board president and unanimously agreed upon by the other board members. However, he was separated with the basis of this separation being a physical ailment utilizing Army Regulation 635-200, chapter 5-9. This chapter specifically discusses the responsibilities of the General Court Martial Convening Authority (GCMCA) in cases in which an erroneous or fraudulent enlistment occurred. There is no support that an individual with GCMCA was involved in this case. A further concern is raised with the medical documentation of Major B____ in which he indicates the physical ailments suffered by the applicant are not the result of Rubella, but he believes them to be the first sign of riot gas poisoning. Lastly, the VA has assigned a rating of 100% disability to the applicant’s case, indicating the persistent severity of his physical ailments over the years. b. Based on the available records it is the opinion of the ARBA medical advisor that the applicant does in fact have severe physical limitations due to his psoriasis and psoriatic arthritis. The diagnosis of psoriasis is not supported as EPTS based on the records provided. Further, the outcome of the board proceedings is somewhat confusing. However, basing the outcome on a determination of EPTS seems erroneous. The outcome also puts a significant amount of confusion on this case with the wording of “unfit for induction; however, he is considered fit for retention.” If his basis for discharge is a physical ailment that is unfitting, that should be stated clearly. This medical advisor recommends that the applicant’s case should be referred to a medical board now for full consideration of his disability resulting from his psoriasis and psoriatic arthritis that may have stemmed from exposure to toxic gas while on active duty in 1971. This review should take into account there is no supporting documentation to the effect these diagnoses were present prior to his enlistment. Overall, his case appears to have been mishandled dating back to 1971 and the medical evaluation board should take this into consideration when reviewing his case and the outcome. A copy of the complete medical advisory was provided to the Board for their review and consideration. 22. Notwithstanding the medical advisory opinion, there is no evidence of record the applicant was discharged due to fraudulent enlistment, but rather due to not meeting medical fitness standards at the time of enlistment. 23. The applicant was sent a copy of the advisory opinion on 21 February 2020 and given an opportunity to submit comments, but he did not respond. BOARD DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. After review of the application and all evidence, the Board found some relief is warranted. The applicant’s contentions, medical concerns, and the medical advisory opinion were carefully considered. Based upon the preponderance of the evidence, the Board agreed the applicant’s record should be referred to the Office of the Surgeon General for medical evaluation consideration, with all relief dependent upon a final medical determination. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring his records to The Office of the Surgeon General for review to determine if he should have been discharged or retired by reason of physical disability under the Integrated Disability Evaluation System (IDES). a. In the event that a formal physical evaluation board (PEB) becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. b. Should a determination be made that the applicant should have been separated under the IDES, these proceedings will serve as the authority to void his administrative separation and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains changing his type of discharge without evaluation under the IDES. 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. REFERENCES: 1. Title 10, United States 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 ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in a medical evaluation board (MEB); when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an Military Occupational Specialty (MOS) Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and physical evaluation board (PEB). The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 3. Army Regulation 635-40 establishes the Army 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 office, grade, rank, or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. a. Paragraph 3-2 states disability compensation is not an entitlement acquired by reason of 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 military service. b. Paragraph 3-4 states Soldiers who sustain or aggravate physically-unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 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. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, provided the authority for the administrative separation of enlisted personnel. a. Paragraph 5-9 (Discharge of personnel who did not meet procurement medical fitness standards) states individuals who were not medically qualified under procurement medical fitness when accepted for induction or initial enlistment will be discharged when a medical board, regardless of the date completed, establishes that a medical condition was identified by appropriate military medical authority within 4 months of the member’s initial entrance on active duty or active duty for training under the Reserve Enlistment Program of 1963 which: (1) would have permanently disqualified him for entry into the military service had it been detected at that time; and (2) does not disqualify him for retention in the military service under the provisions of chapter 3, Army Regulation 40-501. (3) Commanders specified in paragraph 2-17a are authorized to order discharge under this paragraph. Separation will be accomplished within 72 hours following approval by the discharge authority. Authority for discharge (paragraph 5-9, Army Regulation 635-200) and Separation Program Number (SPN) 375 (discharge due to not meeting medical fitness standards at the time of enlistment) will be included in directives or orders. (4) Members who do not meet the medical fitness standards for retention will be processed under the provisions of Army Regulation 635-40 b. Paragraph 2-17a lists the authority to order discharge or release from active duty prior to expiration of period of service as follows: (1) Commanders of all units and installations which are commanded by, or are under the normal command of a general officer (2) Commanders of units or installations having general court-martial jurisdiction (3) Commanders of the following medical treatment facilities: * Brooke Army Medical Center * Walter Reed Army Medical Center * Fitzsimmons Army Medical Center * Letterman Army Medical Center * Madigan Army Medical Center * William Beaumont Army Medical Center * U.S. Army Medical Center, Fort Gordon * Valley Forge General Hospital (4) Commanders of personnel centers, training centers, overseas replacement depots, transportation terminal commands, and all active Army installations having an authorized strength of 4,000 or more personnel. 6. Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities that 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. The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service. The VA does not have the authority or responsibility for determining physical fitness for military service. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. These two government agencies operate under different policies. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170011413 14 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1