ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 14 July 2020 DOCKET NUMBER: AR20180006604 APPLICANT REQUESTS: honorable discharge due to physical disability APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States * two self-authored statements * Department of Health, Education, and Welfare psychiatric letter, dated 5 May 1969 * Standard Form 513 (Consultation Sheet), dated 13 June 1969 * Mental Hygiene Consultation Service Certificate, dated 18 September 1969 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 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’s complete military service record is not available to the Board for review. A request was made of the National Personnel Records Center (NPRC) to obtain the applicant’s service record, but his records were unavailable. A fire destroyed approximately 18 million service members’ records at the NPRC in 1973 and his records may have potentially affected by the fire. His case is being considered using the available evidence provided by the applicant. 3. The applicant states: a. He is requesting a change to his discharge from under honorable conditions to reflect honorable medical discharge. The medical examiner determined him “unsuitable” and recommended his elimination from the service under the provisions of Army Regulation 635-212 (Unfitness and Unsuitability). b. Please refer to the medical record dated 13 June 1969. An Army doctor reviewed his records and examined him, determining that his psychotic reactions would preclude him from serving in the military and he said he would not recommend him for duty. The applicant did not get in trouble or disobey orders, so there is no reason to punish him for having a mental disorder. Also, he was involuntarily drafted after he provided the Military Entrance Processing Station (MEPS) examiners with his doctor’s diagnosis that he had a mental illness that prevented him from service in the military. c. There were extenuating circumstances surrounding his enlistment. Before being drafted, he attempted to voluntarily enlist. He was refused acceptance and at the time, he was deemed unfit for duty. Later, he was drafted, but the induction was reviewed by a medical doctor who deemed him unfit for duty with the provisions outlined in supporting medical documentation accompanying his application. Despite the medical consideration and advisement that he was not to be admitted to the Armed Forces, he was still inducted. d. After a short period of service, he was then released from active duty before completing Basic Combat Training (BCT) for the same rationale used on his initial enlistment rejection. The orders from the physician stating his enlistment was not advisable were not heeded. After his period of service, his mental health condition that should have rightly prevented his induction, was exacerbated, which has led to life-long health and mental issues. e. During the era in which his induction occurred, the following existed: * discriminatory worldviews * hostile social climate * racial tension * harassment from both sectors in the military environment * Health Insurance Portability and Accountability Act (HIPPA) violations * Malfeasance and other damages as a result of the decisions made by the Armed Forces, even after medical advisement for non-entry f. He has attempted to seek compensation and disability from the Department of Veterans Affairs (VA), but to no avail. Due to reasons unknown, the case is at a standstill. The VA shares responsibility, but the major focus of his disagreement rests with the Army under which his forced induction occurred. The HIPPA violations that occurred during his stint at BCT were such that other troops as well as noncommissioned officers (NCO) broadcast information that was of a confidential nature, specifically his medical, physical, and mental health issues were disseminated and caused him emotional distress, which was the condition that led to his military separation. g. When he came into the VA Regional office to request assistance with his claim related to his post-traumatic stress disorder (PTSD), he was questioned about a specific event that would be responsible for his mental condition. Additionally, he was medically discharged from active duty although the codes on his DD Form 214 were not identified at the time he was sitting in the VA Regional Office, but hopefully he can get those codes related to his discharge interpreted. h. With regard to his PTSD, his military service was during a time of intense racial elements within the country and the military. With regard to a specific incident and date related to his PTSD, the fact is it was the whole experience, so identifying a specific date would be a problem. Not only while he was on active duty, but the return home was within itself traumatic. He was on active duty and in training during the 1960s; he doesn’t have to go through every single thing, because unless you have no idea of what history reveals about that time frame, it should be clearly understood what condition the country and its Armed Forces were in. i. There were times the treatment and other facets created traumatic events, which led to an unmorally elevated sense of racial profiling and mistreatment, while at other times the amount of anger building in him was not normal either from the experiences and other situations he was going through. He did suffer from sleep deprivation, high levels of stress, and elevated anger issues which interfered with his ability to perform his duties. This of course led to other problems during training, which got him into confrontations with the Drill Sergeants. j. He was in turn discharged because of these conditions, which by all accounts, as far as he’s concerned without being specific (the codes on his DD Form 214 will provide clarity), were the rationale behind his discharge. He was deemed to be mentally unfit and he was told this was a direct result of his experiences during training. If the military deemed him mentally unfit, this should have been discovered while he was being prepared to go in the military during his medical evaluation. If he was good enough to get in, then released due to mental conditions, it would seem logical that something happened while he was on active duty. First he was ok, then he was not fit for duty? This explains itself. What he went through created drastic mental changes which still have an effect on his mental stability to this day. k. His worldview changed and he no longer sees things as he did before he went in the Army. Sleep deprivation, high levels of paranoia, elevated stress levels, anger felt for abnormal reasons, and mistrust of others are not a way of life for him. l. If the question becomes why did it take so long for him to make this request, the answer is simple. The VA did not let him know he could file and the information on how to file was not known to him. His experiences on active duty changed his mental state forever and becoming knowledgeable about PTSD, he knows he exhibits the symptoms. He had a hard time explaining this to the representative at the VA Regional Office, so he explained this to a close family member and this letter for support is a direct reflection of how he feels. He is seeking assistance to right this wrong with either advisement, legal remedy, or lawsuit information. 4. The applicant provided a Department of Health, Education, and Welfare psychiatric letter addressed to the Selective Service System, dated 5 May 1969, which predates the applicant’s induction and shows: a. The Chief of Psychiatry wrote the letter concerning the applicant’s psychiatric evaluation. The examining psychiatrist examined the applicant twice, on 31 July 1968 and again on 23 August 1968. The applicant was referred there from their General Clinic for fear of “cracking up” during a voyage as a seaman. b. Upon interview, the applicant seemed schizoid and paranoid. His impression was he may be experiencing an adjustment reaction of adult life, as he was having new experiences. On the other hand, a simple or paranoid schizophrenia may be arising. The applicant failed to keep two subsequent appointment. On the second session in August 1968, the psychiatrist still felt uncertain about the applicant’s diagnosis, but the applicant was feeling better on Thorazine (antipsychotic). Again, the applicant failed to return after that visit. c. As the psychiatrist’s last contact with the applicant was almost 1 year ago, he suggested he be reexamined by the Selective Service medical staff to ascertain if he was over a transient situational reaction or if he was indeed chronically ill. 5. The applicant provided a Standard Form 513, dated 13 June 1969, which is partially illegible. It shows: a. The above-referenced psychiatric letter was reviewed and it was noted the psychiatrist’s statement that he felt the applicant might have had an adjustment reaction to adult life, but felt uncertain about his diagnosis. b. It appears to state the applicant was working as a longshoreman in August 1968 and developed symptoms of dizziness and loss of perception while on a ship to Vietnam. He went to the psychiatric clinic at the Public Health Hospital in New Orleans when the ship returned to the United States and was seen for several weeks, after which everything got better and he is working as a longshoreman again, although he doesn’t like the sea. c. A mental status examination revealed a tense, anxious individual. Is intelligence was adequate and he was not grossly psychotic but manifested some symptoms as well an occasional inappropriate affect. He was oriented in all areas. d. In December 1968, under the stress of shipping out as a seaman, he developed acute and moderately sever anxiety symptoms with some suggestion that he was possibly having some psychotic symptoms at the time. He has been symptom free for several months. Although he is well motivated for duty, the examining doctor felt that the recent severe attack of what was probably a borderline psychotic reaction would preclude his serving in the military at this time. He would not recommend him for duty. However, if he were to remain symptom free for the several months, he would reconsider. 6. Subsequent to those medical/mental health examinations, the applicant was inducted into the Army of the United States on 4 September 1969. 7. A Headquarters, U.S. Army Training Center, Infantry and Fort Polk Mental Hygiene Consultation Service Certificate, dated 18 September 1969, shows: a. The applicant was psychiatrically examined on 18 September 1969, after approximately 2 weeks of active duty as a trainee and was referred psychiatric evaluation. He had a documented history of previous psychiatric treatment in June 1968. His diagnosis at that time was adjustment reaction of adult life, but there was considerable suspicion he might have a more serious psychiatric condition. Prior to induction he was again evaluated in June 1969 and it was recommended he not be accepted into military service until a 6-month waiting period elapsed. He was apparently inducted anyway. At the then present time, the applicant complained of dizziness, a recurrent nightmare in which he blows up, and the feeling he was about to lose control. In the interview situation, he manifested inappropriate affects, peculiar ideas, grimaces, and mannerisms. b. After considering the past personal history and the current mental status, the applicant’s diagnosis was schizoid personality, chronic, sever, with paranoid features manifested by suspiciousness, aloofness, inappropriate affect, mannerisms, grimaces, and inconsistent behavior. Stress was mild, routine military duties. His predisposition was severe with a long history of a borderline condition. He had a marked impairment for further military duty that existed prior to service (EPTS) and was not incurred in the line of duty (LOD). c. The applicant was mentally responsible. He was able to distinguish right from wrong according to the standards of is current society and to adhere to the right. He had the mental capacity to understand the nature of board proceedings and to cooperate in his own defense. In connection with standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, there were no mental or physical defects warranting admission to or final disposition through medical channels. d. The applicant was not mentally ill. However, he did manifest a severe borderline personality disorder. Consequently, it was the opinion of the examining psychiatrist that the applicant be separated from the service as quickly as possible. In the meantime, he was to be maintained on medication. 8. The applicant’s DD Form 214 shows he was discharged on 10 November 1969, after 2 months and 7 days of net active service under the provisions of Army Regulation 635-212 (Unfitness and Unsuitability) with Separation Program Number 264 (Unsuitability, character and behavioral disorders). His service was characterized as general, under honorable conditions. 9. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military records. The Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Management Solutions (HAIMS) was not in use at the time of his service. His hard copy military medical records were not available for review. His separation records indicate he was evaluated on 18 Sept 1969 (two weeks into basic training) due to difficulty in training. He was diagnosed with Schizoid Personality Disorder with paranoid features. There is also documentation prior to his enlistment recommending against enlistment due to his psychological issues. A review of VA’s Joint Legacy Viewer (JLV) indicates he does not have a service connected disability rating. In accordance with the 3 Sep 2014 Secretary of Defense Liberal Guidance Memorandum and the 25 Aug 2017, Clarifying Guidance there is documentation to support a behavioral health condition at the time of his discharge. His condition was not a medically boardable condition and preexisted his military service. Administrative separation was appropriate and medical disability/retirement is not warranted. BOARD DISCUSSION: The Board carefully considered the applicant's request, supporting documents and evidence in the records. The Board considered his statement, his record and length of service, his entry into service, a medical examination and the reason for his separation. The Board considered the medical assessments prior to his service and the review and conclusion of the medical advising official. After review of the application and all evidence, including the applicant’s statement and the ARBA Medical Advisory Opinion, the Board found insufficient evidence to grant relief. The Board agreed with the Medical Advisory Opinion that the preponderance of the evidence indicates the applicant’s condition was not a boardable condition and that it existed prior to service. Based on a preponderance of evidence, the Board determined that an administrative discharge was appropriate and sending the applicant’s case to DES for consideration of a medical disability/retirement is not warranted; the Board found no evidence of error or injustice. 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. 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. 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, 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. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. This guidance does not mandate relief, but rather provides standards and principles to guide BCM/NRs in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. 4. Army Regulation 635-212 (Unfitness and Unsuitability), in effect at the time, set forth the basic authority for the separation of enlisted personnel found to be unfit or unsuitability for further military service. a. Action will be taken to separate an individual for unsuitability when it is clearly established that: * it is unlikely that he will develop sufficiently to participate in further military training and/or become a satisfactory Soldier, and * he meets retention medical standards b. An individual is subject to separation under the provisions of this chapter for unsuitability when one or more of the following conditions exists: * inaptitude * character and behavior disorders * apathy (lack of appropriate interest), defective attitudes, and inability to expend effort constructively, where individuals considered for elimination may attempt to excuse immature, inadequate, and undisciplined behavior on the basis of minor or non-disabling illnesses * alcoholism * homosexuality c. Counseling and rehabilitation may be waived by the convening authority when separation is being considered and he determines that further duty of the individual will, in his best judgment, create serious disciplinary problems or a hazard to the military mission or the individual. d. An individual separated because of unsuitability will be furnished an honorable or general discharge certificate as warranted by his military record. The type of discharge will be directed by the convening authority. 5. 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 an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an 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 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. 6. 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. 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. 7. 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. //NOTHING FOLLOWS//