ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 May 2019 DOCKET NUMBER: AR20170019543 APPLICANT REQUESTS: reconsideration of his prior request for physical disability retirement. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of release or Discharge from Active Duty) * personal appearance before the Board FACTS: 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 AR1999016557 on 22 September 1999. 2. The applicant states he should have been placed on the Army Retired List based on severe post-traumatic stress disorder (PTSD) and was given an erroneous diagnosis at the time. 3. The applicant enlisted in the Regular Army on 21 June 1966 and served in Vietnam from 1 June 1967 through 31 May 1968. 4. A letter from his immediate commander to his mother, dated 10 October 1968, states the applicant was absent without leave (AWOL) since 9 October 1968 and his mother was urged to pursue every effort to encourage him to return to his unit if she knew his whereabouts. 5. A memorandum from the Brigade Chaplain, dated 19 November 1968, states the applicant had been to the Chaplain’s office on many occasions since 25 October 1968 and there had been several telephone calls from his mother in Boston. Based on the applicant’s statements in counseling sessions and actions, it was felt a discharge under Army Regulation 635-212 (Personnel Separations-Discharge-Unfitness and Unsuitability) would benefit both the Army and the applicant. Recommendation was made that his discharge be granted as soon as possible. 6. Headquarters, 1st Battalion, 67th Armor, 2nd Armored Division, Special Court- Martial Order Number 34, dated 20 November 1968, shows he was arraigned and tried before a special court-martial where he was charged with and found guilty of: * being AWOL from his unit at Fort Hood, TX from on or about 8 October 1968 through on or about 9 October 1968 * being AWOL from his place of duty from on or about 11 October 1968 through on or about 18 October 1968 7. He was sentenced to confinement at hard labor for 3 months, forfeiture of $73.00 per month for 3 months, and reduction in rank/grade to private/E-1. 8. In a memorandum dated 21 November 1968, his immediate commander detailed the basis for his recommendation for the elimination of the applicant from the service. It states: a. The applicant should be eliminated from the service because his conduct proved him to be unfit for military service. He has been a continual disruptive influence in the unit, shown a complete disregard for authority, and evidenced an attitude which would prohibit the honorable completion of his service obligation. b. The applicant reported to this unit on 25 July and on 29 July 1968 he requested to see the Chaplain and have a psychiatric appointment. This began a series of appointments with the Chaplain and the Mental Hygiene Consultation Service. In an interview with the applicant, he later indicated that his goal was a medical discharge from the service. However, he has been found to be mentally and physically fit for duty. c. The applicant indicated his major problem was being assigned to Fort Hood, TX, as he felt he could not adjust to the post or locality. Therefore, on 19 August 1968, he was sent on temporary duty for 180 days to Fort Knox, KY. Prior to being sent to Fort Knox, he indicated he would like to be sent to Fort Knox and that would help him solve his problems. d. On 5 October 1968, he was returned from Fort Knox, KY, because he failed to perform his duties there in a satisfactory manner. He was continually at sick call, seeing the Chaplain, or seeing the Inspector General (IG). When he was present for duty, his job performance was determined to be unsatisfactory because he had a definite tendency to shirk. e. On 8 October 1968, the first sergeant found it necessary to give the applicant a direct order to draw his TA-50 (Army issued individual field gear), turn in his dental records to the Dental Clinic, his supply records to the supply room, and his educational records to the Education Center because the applicant essentially refused to in-process. f. On the evening of 8 October 1968, he went AWOL. He was picked up in Memphis, TN, and turned over to the Special Processing detachment at Fort Campbell, KY. Within 4 hours, he was again AWOL. On 17 October 1968, he turned himself in to the U.S. Naval Hospital at Chelsea, MA, where he was interviewed by a psychiatrist and then forwarded to Fort Devens, MA and returned to his unit at Fort Hood on 24 October 1968. On 25 October 1968, the day after his return to his unit, he began the cycle all over again. g. He was found guilty by both special court-martial and summary court-martial of multiple counts of AWOL and of breaking restriction. h. When he was present for duty, his conduct and efficiency were unsatisfactory. He can be counted on to request some kind of appointment whenever he is given a job. In the motor pool, his platoon sergeant had to keep constant supervision of him or he would sit down, wander off, or hide in the tank turret. i. He was a constant disruptive influence by encouraging other people to refuse to work, see the IG, be AWOL and other acts prejudicial to good order and discipline. He continually complained and forced opposition to everything that takes place in the unit. He has been unresponsive to training or attempts to help him. He is unfit for military service and should receive an undesirable discharge. 9. On 21 November 1968, his immediate commander notified him of his intent to recommend his elimination from the service for unfitness under the provisions of Army Regulation 635-212, paragraph 6a. He informed the applicant of the basis for the elimination action and advised him of his rights. 10. On 21 November 1968, the applicant acknowledged being advised by counsel of the basis for the contemplated action to accomplish his separation for unfitness under the provisions of Army Regulation 635-212. He waived consideration of his case by a board of officers, waived representation by counsel, and did not submit statements in his own behalf. He acknowledged he may expect to encounter substantial prejudice in civilian life in the event he were to receive a general discharge under honorable conditions and that he may be ineligible for many or all benefits ife he were to be issued an undesirable discharge. 11. Headquarters, 1st Battalion, 67th Armor, 2nd Armored Division Summary Court- Martial Order Number 7, dated 25 November 1968, shows he was arraigned and tried before a summary court-martial where he was charged with and found guilty of * being AWOL from his unit at Fort Hood, TX, from on or about 10 November 1968 until on or about 19 November 1968 * breaking duty restriction to the limits of his company on or about 10 November 1968 12. He was sentenced to confinement at hard labor for 30 days and forfeiture of $73.00 per month for 1 month. 13. On 16 December 1968, the approval authority approved the request for discharge under the provisions of Army Regulation 635-212, paragraph 6a, for unfitness and directed the issuance of an Undesirable Discharge Certificate. 14. His original DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), now voided, shows he was discharged under other than honorable conditions on 20 December 1968, after 2 years, 4 months, and 3 days of net active service. His reason and authority for separation is listed as Army Regulation 635-212 with separation code 28B (unfitness). 15. On 26 October 1970, the Army Discharge Review Board (ADRB) denied the applicant’s first request for a change to the type and nature of his discharge. 16. The applicant again applied to the ADRB and on 17 April 1980, the ADRB granted relief. The ADRB determined his discharge was proper, but not equitable and voted to both upgrade his discharge to honorable and change his narrative reason for separation to unsuitability – personality disorder. In coming to this determination, the ADRB stated they used the following rationale: a. Among the evidence of record and exhibits submitted was a neuropsychiatric evaluation done at the time of his service which diagnosed the applicant as having passive aggressive personality and initially recommended his rehabilitation. This neuropsychiatric evaluation is no longer in his available records for review. b. The applicant’s service was unblemished for over 2 years, which included an excellent period of service in Vietnam. The record also reflects his conduct and efficiency rantings were mostly excellent until 3 months prior to his discharge. All of his indiscipline took place at Fort Hood shortly after his return from Vietnam and the Board felt it was directly related to his personality disorder, a condition later rated as totally disabling by the Department of Veterans Affairs. The Board felt he was a psychological casualty of the Vietnam War and his indiscipline was fully mitigated by his mental problems. 17. His reissued DD Form 214 shows he was honorably discharged under the provisions of Army Regulation 635-212 for unsuitability – personality disorder. Item 18 (Remarks) includes the statement that his discharge was upgraded on 17 April 1980 following his application on 16 June 1978. 18. The applicant applied to the ABCMR requesting, among other things, to change his narrative reason for separation from “unsuitability – personality disorder,” as amended by the ADRB to, in effect, discharge or retirement due to physical disability. a. The Board denied his request for retirement or discharge due to physical disability, as there was no evidence he failed medical retention standards, but the Board did determine that his altered narrative reason for separation to “unsuitability – personality disorder” was made in error, as there was no evidence he was diagnosed with a personality disorder at the time of his service. b. The prior ABCMR Record of Proceedings cites three medical statements contemporaneous to the applicant’s service, none of which are currently in his available records for review. A 16 August 1968 Neuro-Psychiatric evaluation of the applicant diagnosed him as having a passive aggressive personality and difficulty adjusting to authority. A 25 November 1968 medical statement showed a complete review of the applicant’s physical and mental examinations determined the applicant was physically and mentally fit for duty without physical profile limitations and he was responsible for his actions. A 26 November 1968 Neuro Psychiatric evaluation again diagnosed him with passive aggressive personality and stated the applicant wanted discharge from the service and all of his past behavior was toward that goal. There were no disqualifying mental defects sufficient to warrant disposition through medical channels. c. In light of this determination that his records had been erroneously amended to show his narrative reason for separation was “unsuitability – personality disorder,” the Board voted to amend his narrative reason for separation to “Secretarial Authority” and amend the corresponding separation authority to Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 5 and the separation code from JMB (Character or Behavior Disorder) to 21L (Secretarial Authority). 19. His records contain a DD Form 215 (Correction to DD Form 214) showing the above corrections were made to his DD Form 214 on 28 February 2000. 20. On 6 March 2018, the Army Review Boards Agency (ARBA) medical advisor provided an advisory opinion. The ARBA medical advisor concluded the applicant did not fail medical retention standards and there is insufficient evidence of a medical disability or condition which would support a change to the reason for separation to medical retirement. A copy of the complete medical advisory was provided to the Board for their review and consideration. 21. The applicant was sent a copy of the advisory opinion on 8 March 2018, and given an opportunity to submit comments. He replied on 9 April 2018, requesting a 30-day extension to obtain additional evidence. The extension was granted, but he did not respond further. 22. 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. 23. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) 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. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a medical evaluation board (MEB); when they receive a permanent physical profile rating of "3" or "4" in any functional capacity factor and are referred by a Military Occupational Specialty Medical Retention Board; and/or they are command- referred for a fitness-for-duty medical examination. b. The mere presence of 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 medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. c. 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. 24. 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the medical advisory finding that there was insufficient evidence of a medical disability or condition which would support a change to the reason for separation to medical retirement, the Board concluded that there was insufficient evidence to show an error or injustice which would warrant making a change to the narrative reason for separation. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION 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. 5/21/2019 X CHAIRPERSON Signed by: 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. Army Regulation 635-212 (Personnel Separations-Discharge-Unfitness and Unsuitability), in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability. When separation for unfitness was warranted, an undesirable discharge was normally considered appropriate. a. Paragraph 6a stated an individual was subject to separation for unfitness when one or more of the following conditions existed: * frequent incidents of a discreditable nature with civil or military authorities * sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child * drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana * an established pattern of shirking * an established pattern of dishonorable failure to pay just debts * an established pattern showing dishonorable failure to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments) b. Paragraph 6b stated an individual was subject to separation for unsuitability when one or more of the following conditions existed: * inaptitude * character and behavior disorders (as determined by medical authority) * apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively * alcoholism * enuresis * homosexuality 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 5-3 states separation under Secretarial Plenary Authority is the prerogative of the Secretary of the Army and is exercised sparingly. Ordinarily, it is used when no other provision of this regulation applies and early separation is clearly in the best interests of the Army. b. Paragraph 5-13, previously in effect, states a Soldier may be separated for personality disorder (not amounting to a disability) that interferes with assignment to or performance of duty, when so diagnosed by a physician trained in psychiatry and psychiatric diagnosis or a licensed clinical psychologist. 3. 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 Department of Defense Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). 4. 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. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in a medical evaluation board (MEB); when they receive a permanent physical profile rating of "3" or "4" in any functional capacity factor and are referred by a Military Occupational Specialty 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 or 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 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 are either 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 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 medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. d. 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. e. 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. 5. 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. 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. 7. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires.