IN THE CASE OF: BOARD DATE: 30 January 2020 DOCKET NUMBER: AR20190002489 APPLICANT REQUESTS: in effect, correction of his DD Form 214 (Report of Separation from Active Duty) to reflect discharge or retirement due to physical disability and any corresponding benefits due to him as a result of the correction APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * two DD Forms 149 (Application for Correction of Military Record) * self-authored statement * Standard Form 88 (Report of Medical Examination) * Standard Form 93 (Report of Medical History) * Company A, 15th Battalion, 4th Training Brigade (Basic Combat Training (BCT)) memorandum and endorsement, dated 21 October 1976 * DD Form 214 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 states: a. He has two different discharge documents, both of which are fraudulent and he wants them corrected. One is a poor performance endorsement which states he had pre-existing nervousness, which is not a fact. There is no proof of this because it does not exist. The second is the proposed discharge action which contains statements of character and injury that are not factual. b. Speculation is not fact or evidence of law and it is unjust to use speculation as a basis for his discharge. The statements of assessment of his injury were not factual. His original assessment of injury was severe neurosis on 22 September 1976, diagnosed while he was in the hospital after he was absent without leave (AWOL) in a period of duress, which was a necessity for his mental health. c. Service treatment records on 13 September 1976 note he was nervous and stuttering, for which he was referred to mental hygiene for an evaluation, but never taken. Out of duress, he went AWOL in order to get medical attention he needed, 676 miles away at Calvert Memorial Hospital in Calvert County, MD. It took him 4 days, during which he ate, slept, and went to the hospital on the 22nd of the month. In those 4 days, no authority got him to a doctor. d. Upon his return from AWOL, the Army psychiatrist assessed him as having nervousness, tension, and anxiety. The private doctor who originally diagnosed him gave him thorazine (used to treat mental/mood disorders), but the Army doctor did not prescribe him any medication or a follow-up visit. He had been refused medical treatment before being AWOL and after the assessment and received no medication or attention after his discharge due to the fact he was told he would not be eligible for any benefits. e. He did not know until 2013 when a Department of Veterans Affairs (VA) representative visited the jail he was in and did some investigation that he knew he was eligible for VA benefits. Prior to then, he had no financial ability to pay for a doctor. In about 1993 he saw a state-funded mental health provider at Bay Life Mental Health through the court. He was diagnosed with bipolar disorder and multiple psychoses. f. He believes he should have received a medical discharge due to the fact that both the private and the Army doctor found him unfit for service and neither had ample time to fully examine the fullness of his illness or the acute situational maladjustment, due to the urgency and necessity of the medical attention he received. His superiors in charge did not understand this. g. The shock of a country boy being exposed to the real world for the first time was more than he could mentally deal with. Being trapped without knowledge of the future and the incompetency that surrounded him with no escape caused him to have a nervous breakdown, which only got worse due to a lack of medical attention. He desires full compensation to the extent of the law, including back-pay for medical malpractice and medical discharge or retirement due to medical complications. 3. After a Report of Medical Examination, dated 28 July 1976, found him qualified for enlistment, the applicant enlisted in the Regular Army on 2 August 1976. 4. He accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on 18 October 1976, for being AWOL from his BCT unit from 17 September 1976 through 13 October 1976. 5. A letter from Dr. W____, , dated 14 October 1976, states the applicant was seen by him on 20 September 1976 because of personality changes due to his anxiety neurosis. He was admitted to Calvert Memorial Hospital on 22 September 1976 for treatment of his neurosis and because it was the doctor’s feeling the applicant was a danger to himself and others. The applicant was discharged on 27 September 1976 in an improved condition. A consultation was obtained with Dr. O____, psychiatrist, and his impression was “severe neurosis” and “not fit to serve in service.” 6. A DA Form 3349 (Medical Condition – Physical Profile Record), dated 14 October 1976, shows the applicant was given a temporary physical profile rating of “3” on the date of the form finding him medically qualified for duty with temporary assignment limitations effective the date of the form. He was found to have emotional problems that rendered him incapable of coping with the stresses of BCT. It was recommended he be removed from further emotional stresses of BCT pending further administrative action. 7. A Training and Doctrine Command counseling form shows he received counseling from his platoon sergeant on 20 September 1976 (presumably intended to read 20 October 1976), which states: * the applicant returned from AWOL on 13 October 1976 and appeared to be very nervous and stuttered while talking * he was sent to mental health counseling on 14 October 1976 and the evaluation stated he was unable to cope with stressful situations within the military due to nervousness, tension, and anxiety * a civilian psychiatrists stated the applicant suffers from severe neurosis * he was committed to a hospital while AWOL because he was a danger to himself and others * he has been counseled on several occasions by the company commander, drill sergeants, the battalion commander, and psychiatrists between 14 October and 20 October 1976 * he continues to be nervous, stutter, and cries; he wants out of the Army and its environment * the recommendation was for the applicant’s discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-39, the Trainee Discharge Program 8. On 21 October 1976, the applicant was notified by his immediate commander of his initiation of action to discharge him from the Army under the provisions of Army Regulation 635-200, paragraph 5-39 under the Trainee Discharge Program. The reason for the proposed action were the applicant was emotionally upset, nervous, and unfit for military service.. He could not endure the stresses of BCT and the psychiatrists and mental hygienic personnel state he should be separated from the service due to his emotional condition. He was informed he would be furnished an Honorable Discharge Certificate and he was informed of his rights, including the right to request a separation medical examination. 9. On 21 October 1976, the applicant acknowledged notification of his proposed honorable discharge under the Trainee Discharge Program. He acknowledged he did not desire to make statements in his own behalf and he did not desire to have a separation medical examination. 10. His intermediate commander recommended approval on 21 October 1976, stating her personally interviewed the applicant and determined his inability to adapt to the stresses of BCT was affecting his personal health to the point that it was for the good of the applicant and the Army. During the interview on 20 October 1976, the applicant stated his nervous condition existed prior to service and he did not like to be with groups of people or near noise. The Army environment did not permit this freedom and he desired to be discharged as soon as possible. The history of his nervousness was evidenced by the enclosures and no further evaluation was felt necessary. 11. On 22 October 1976, the approval authority directed the applicant’s honorable discharge under the Trainee Discharge Program under the provisions of Army Regulation 635-200, paragraph 5-39. 12. His DD Form 214 shows he was discharged accordingly, under the provisions of the Trainee Discharge Program because of marginal or non-productive performance, under the provisions of Army Regulation 635-200, paragraph 5-39. He was credited with 2 months and 12 days of net active service with 26 days of lost time and his service was characterized as honorable. 13. On 25 October 2019, the Army Review Boards Agency (ARBA) medical advisor/psychiatrist provided and advisory opinion which states: a. A review of the electronic VA medical records indicates the applicant has received treatment for bipolar I disorder with psychotic features, delusional disorder, major depressive disorder, cocaine dependence, amphetamine dependence, alcohol dependence, and additional medical conditions. He does not have a service-connected disability rating. b. A review of his military service and medical records indicates he went AWOL and was seen by Dr. W____ while AWOL and psychiatrically hospitalized with a diagnosis of “severe neurosis and not fit to service in service.” In addition, prior to joining the military, he was seen by Dr. O____ (psychiatrist_ and determined to be suffering from “extreme anxiety neurosis” deemed “unfit to serve in the Army” because he required “regular outpatient psychiatric help.” After his return to military control, he was evaluated by a military psychiatrist and determined to be “incapable of coping with the stress of BCT.” The discontinuance of his training and his administrative discharge were recommended. c. The evidence of record shows the applicant has a preexisting behavioral health condition that did not meet accession standards. This condition was not known to the Army until his psychiatric hospitalization while AWOL. He was expeditiously separated after his return from AWOL and given an honorable discharge. Given that is behavioral health condition existed prior to service and he was discharged during basic training (with less than 180 days of service) neither medical discharge nor medical retirement are warranted and are not recommended. A copy of the complete medical advisory was provided to the Board for their review and consideration. 14. On 29 October 2019, the applicant was provided a copy of the advisory opinion and given an opportunity to submit comments, but he did not respond. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record and length of service, the frequency and nature of his misconduct, the medical evaluation, the separation packet including his interview statement and the reason for his separation. The Board considered the applicant’s medical records and the review and conclusions of the medical advising official. The Board found the applicant to be in an initial entry status at the time of discharge. The Board found sufficient evidence to show his condition existed prior to service and insufficient evidence to support a medical separation or retirement. Based on a preponderance of evidence, the Board determined that the reason for the applicant’s separation was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : 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. 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 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. 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 sets forth the basic authority for the separation of enlisted personnel from the Army. Paragraph 5-39, in effect at the time, governed the Trainee Discharge Program. It provided for the separation of service members who lacked the necessary motivation, discipline, ability, or aptitude to become productive Soldiers or who failed to respond to formal counseling. a. The service member must have: * voluntarily enlisted * been in basic, advanced individual, on-the-job, or service school training prior to award of a military occupational specialty * not completed more than 179 days of active duty on their current enlistment by the date of separation b. Soldiers could be separated when they demonstrated that they: * were not qualified for retention due to failure to adapt socially or emotionally to military life * could not meet minimum standards prescribed for successful completion of training because of lack of aptitude, ability, motivation, or self-discipline, or demonstrated character and behavior characteristics not compatible with satisfactory continued service //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190002489 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1