ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  14 November 2019

	DOCKET NUMBER:  AR20190007325


APPLICANT REQUESTS:  This case comes before the Army Board for Correction of 
Military Records (ABCMR) on joint motion by the applicant’s Counsel and the Secretary 
of the Army for voluntary remand and stay of proceedings, filed in the U.S. District Court 
and issued by the Court on .  In support of this motion, the parties state the 
following:

	a.  This is an action for judicial review under the Administrative Procedures Act, of 
an action by the ABCMR.  The applicant seeks review of the ABCMR’s alleged failure to 
take final action and to issue a substantive decision on his application to change his 
discharge to physical disability retirement.

	b.  The applicant is a Vietnam veteran who received an honorable discharge from 
the Army on 17 July 1970 and alleges the Army should change his discharge to reflect 
he should have been retired due to a medical disability, based on a service-connected 
diagnosis of post-traumatic stress disorder (PTSD) by the Department of Veterans 
Affairs (VA). the parties filed a joint stipulation of settlement and dismissal on 11 March 2016, whereby the ABCMR agreed to reconsider the applicant’s prior request for medical disability retirement status and to issue a substantive decision on his request.

	d.  The applicant alleges that the ABCMR has not complied with the terms of the 
stipulation because it adopted, without issuing its own substantive decision, a 
memorandum by an Army Medical Evaluation Board (MEB) psychologist and physician 
in which it was opined that the applicant would not have qualified to be referred to an 
MEB for consideration for medical retirement at the time of his discharge in 1970.

	e.  The parties have agreed to remand the present case to the ABCMR and to stay 
proceedings before the U.S. District Court a under the 
following conditions:

*	the applicant submits matters to the ABCMR to rebut the Army MEB 
memorandum within 45 days of the Court’s remand and stay order
*	the ABCMR considers all matters submitted by the applicant, including his 
rebuttal maters, and if deemed necessary, will seek additional medical advisory 
opinions and issue a substantive decision on the merits of the request for 
physical disability retirement
*	the ABCMR will endeavor to issue its substantive decision within 180 days after 
the applicant submits his rebuttal matters, potentially requiring additional time 
based on the possible need to obtain additional medical advisory opinions
*	the ABCMR shall promptly notify the applicant of its substantive decision
*	the parties have agreed that within 30 days of the ABCMR providing notice to the 
applicant of its decision, the parties shall submit either a stipulation of dismissal 
or a joint status report with a proposed schedule for further proceedings in this 
case to the Court

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

*	Counsel’s letter to the ABCMR, dated 31 May 2019
*	Memorandum of Law in Support of Applicant’s Request for Military Disability 
Retirement Discharge, dated 30 May 2019
*	DD Form 214 (Armed Forces of the United States Report of Transfer or 
Discharge)
*	In the U.S. District Court a, Joint Motion for Voluntary 
Remand and Stay of Proceedings, filed 
*	prior Record of Proceedings (ROP) of the applicant’s case by the ABCMR in 
Docket Number AR20160007836, dated 13 October 2016
*	Department of the Army (DA) Office of the Surgeon General (OTSG) 
memorandum, dated 17 June 2016
*	U.S. Army Medical Department Activity, Fort Benning Georgia, Senior MEB 
Physician’s memorandum, dated 30 November 2016
*	Counsel’s letter to the Secretary of the Army, dated 28 June 2018
*	Army Review Boards Agency (ARBA) letter to Counsel, dated 2 August 2018
*	Doctor XXX’s letter, dated 29 April 2019
*	Forensic Psychiatric Report from Doctor (Dr.) XXX, dated 
18 September 2007
*	summary of applicant’s career, dated 22 May 2019
*	applicant’s sworn statement, dated 6 July 1999
*	applicant’s self-authored statement to the VA, dated 27 February 1987
*	statement of applicant’s mother, dated 23 October 2006
*	Standard Form 502 (Clinical Record), dated 6 August 1968
*	Standard Form 502, dated 22 January 1969
*	Standard Form 600 (Chronological Record of Medical Care), dated 11 October 
1969
*	Standard Form 513 (Consultation Sheet), dated 22 April 1970
*	Standard Form 507 (Clinical Record Report on Psychiatry), dated 12 May 1987
*	VA Form 21-6796b (Rating Decision), dated July 1987
*	2 pages of excerpts from Army Regulation 40-501 (Standards of Medical 
Fitness), chapter 3, dated 10 February 1961 and 10 November 1969 respectively
*	excerpt from XXX’s text, “Navy Medicine in Vietnam:  Oral Histories from Dien 
Bien Phu to the Fall of Saigon”

FACTS:

1.  Incorporated herein by reference are military records which were summarized in the 
previous consideration of the applicant's case by the ABCMR in Docket Number 
AR1999029463 on 16 March 2000 and AR20160007836 on 13 October 2016.

2.  Counsel states:

	a.  The applicant requests to have his 1970 military discharge changed to reflect a 
medical disability retirement.  He is a Vietnam combat veteran who suffered from a 
severe mental illness while in service and is now 100 percent disabled by the VA due to 
PTSD.  This case is back before the ABCMR following a stipulated remand for the 
second time from the U.S. District Court  because the Board 
erroneously allowed the Army’s MEB physicians to make a final decision for the Board 
on the issue of the applicant’s medical disability.  The parties’ stipulation required the 
Board to make the final decision.

	b.  The applicant enlisted in the Army at the height of the Vietnam war on 26 July 
1967, shortly after his 17th birthday.  He went through basic combat training (BCT) at 
Fort Jackson, SC and then completed advanced Infantry training at Fort Bliss, TX.  He 
was too young to be sent to Vietnam, so he was sent to Panama for 1 year and 
6 months.

	c.  The applicant had three episodes of treatment for mental conditions prior to going 
to Vietnam.  The first and second episodes occurred while he was stationed in Panama.  
The third occurred at Fort Bliss, TX, and the fourth episode occurred while he was 
stationed in Vietnam and experiencing traumatic events in combat.  

	d.  In June 1968 he was admitted to Coco Solo Hospital after a jeep accident in 
which he jumped from the vehicle and complained of back injuries.  The treating 
physician requested a psychiatric evaluation, after which he diagnosed the applicant as 
suffering from “gross stress reaction” related to the Jeep accident.  The applicant was 
prescribed heavy sedation with Thorazine (antipsychotic medication) and Librium (used 
to treat anxiety disorders) for this reaction.

	e.  In January 1969, he was admitted to Coco Solo Hospital for a second time, this 
time complaining of headache and chest pain.  His electrocardiogram was negative for 
any abnormality as was his stool sample and urinalysis.  The consulting psychiatrist 
stated he felt the applicant was immature and that his symptoms were due to transient 
situational stress, prescribing him 5 milligrams (mg) Valium (a sedative used to treat 
anxiety) twice daily and discharging him from the hospital.  The consulting psychiatrist 
also recommended the applicant be given convalescent leave to return home, but he 
did not receive convalescent leave.  The applicant’s diagnosis at discharge was 
personality pattern disturbances, transient situational.

	f.  In October 1969, he sought help while stationed at Fort Bliss, TX, complaining of 
a headache and afraid he would “tear up the barracks.”  The applicant was hostile and 
anxious and displayed some evidence of flight of ideas.  The consulting psychiatrist 
recommended the applicant receive 100 mg of Thorazine three time daily and he was 
put on 48 hours bed rest with hot soaks.

	g.  The applicant deployed to Vietnam from 1 December 1969 through 17 July 1970 
and was assigned to an artillery battalion stationed at Pleiku.  He was a gunner on a 
twin 40 millimeter (mm) antiaircraft tracked vehicle and spent 4 months assigned to 
defend a perimeter on a hill known as Du-Lap.  His antiaircraft gun was employed as an 
antipersonnel weapon when Viet Cong fighters repeatedly attacked his position.  He 
killed a number of enemy Soldiers, including one whose head was shot off and the 
corpse continued to run without its head.  The applicant admitted to breaking down and 
crying while firing his weapon at the enemy.

	h.  After 4 months at Du-Lap, he was reassigned to Firebase Wade-Davis where his 
twin 40mm tracked vehicle provided cover for engineers engaged in road building who 
were under constant sniper fire.  One day his commanding officer order the applicant to 
take three or four Viet Cong corpses back to the fire base “for credit.”  The corpses were 
placed in body bags and tied to the back of the applicant’s tracked vehicle where the 
corpses began to burn and emit a terrific odor from the heat of his engine as he made 
his way back to Firebase Wade-Davis.  The applicant subsequently experienced 
flashbacks to the burning corpses and exhibited bizarre behavior, including mutilating 
dead bodies and wearing “ear necklaces.”

	i.  On 22 April 1970, 86 days prior to his rotation back to the U.S. the applicant 
reported to sick call and was sent to the neuropsychiatric clinic at the 71st Evacuation 
Hospital in Pleiku, Vietnam.  He complained of agitation and nervousness and reported 
“some difficulty in interacting with supervisors and men in his squad.”  The consulting 
psychiatrist diagnosed the applicant as suffering from situational anxiety, prescribed him 
10 mg Librium, three times per day, and returned him to duty. 

	j.  The applicant was separated on 17 July 1970 and almost immediately had 
problems readjusting.  His mother described him as confused and never finishing any 
thoughts.  He was jumpy, restless, and argumentative.  In the prior opinion of the 
OTSG, prepared for the prior case before the Board, the OTSG opined the applicant 
likely met the criteria for PTSD at the time of his separation.  He is currently rated as 
100 percent disable by the VA for PTSD resulting from his Vietnam experiences.

	k.  The applicant was unfit to perform his military duties at the time of his discharge.  
A Soldier is entitled to a military medical separation if he suffers from a condition that 
renders him unfit for duty. In 1970, Army Regulation 40-501 (Standards of Medical 
Fitness), paragraph 3-1, required a determination of unfitness upon detection of certain 
specified conditions.  For psychiatric conditions, a Soldier was considered unfit per this 
regulation under paragraphs 3-29 and 3-20 [presumably 3-30 intended] if the Soldier 
had:

*	recurrent psychotic episodes, existing symptoms or residuals thereof, or a recent 
history of psychotic reaction sufficient to interfere with the performance of duty or 
social adjustment; or
*	persistence or severity of symptoms sufficient to require frequent hospitalization, 
or the lack of improvement of symptoms by hospitalization, or the necessity for 
duty in a very protected environment

	l.  The applicant should have been declared unfit to perform his duties because 
Army Regulation 40-501 mandated a determination of unfitness as soon as he was 
found to have existing symptoms of a psychotic reaction.  He had four recurrent 
episodes variously diagnosed as stress reaction and Army psychiatrists prescribed 
heavy sedation with Librium and Thorazine.  Dr. XXX, the applicant’s psychiatric expert, 
stated that a heavy dose of Thorazine indicates the treating physicians believes their 
patient had a serious and probably psychotic reaction.  This indicates something more 
than mere anxiety. 

	m.  Moreover, the applicant’s in-service psychiatric history shows symptoms 
requiring frequent hospitalization and the lack of improvement by hospitalization.  These 
hospitalizations all involved the same pattern of presentation of psychopathology and 
significant anxiety.  His psychiatric disability began in Panama and recurred at Fort 
Bliss, TX prior to his deployment to Vietnam and should have precluded him being sent 
to combat duty in Vietnam.  His psychiatric issues reached their peak during his tour of 
combat in Vietnam, resulting in a fourth cry for help for anxiety and acute stress.  By 
April 1970, he was unfit for further duty as an artilleryman, as his Vietnam experiences 
exacerbated his existing psychiatric condition.

	n.  The first advisory opinion from the OTSG stated there was no absence of 
documentation that the applicant was exposed to horrific and life-threatening events and 
developed symptoms of PTSD while service in Vietnam. In their 2000 decision, the 
Board stated that the applicant was performing his required duties until the time of his 
discharge, thereby creating the presumption of fitness.  In contrast the September 2007 
psychiatric evaluation by Dr. XXX maintains that wearing a necklace of human ears was 
evidence of the applicant’s instability.  The fact he was sent home from theater is also 
evidence he was considered unfit for duty.  This evidence suggests he should have 
been referred to an MEB.

	o.  Since the applicant was not evaluated by an MEB in 1970 as he should have 
been, in 2016 the Board sent the applicant’s records to an ad hoc MEB convened at 
Fort Benning, GA where the Board charged the MEB with determining whether the 
applicant met retention standards at the time of his 1970 release from active duty.  The 
MEB consisted of a psychologist and a physician stationed at Fort Benning, GA.  The 
Board could not lawfully delegate the power to determine the applicant’s fitness to an ad 
hoc MEB, as the parties have since stipulated in Court.

	p.  The MEB physicians’ conclusions were erroneous.  The two person MEB panel 
found the applicant fit to perform his duties in 1970, but they never referenced or 
applied Army Regulation 40-501, paragraphs 3-29 and 3-30, pertaining to criteria for 
psychosis and psychoneurosis as the bases for determining unfitness.  The Board and 
the MEB completely ignored the applicant’s medication records showing he received 
heavy doses of Thorazine that likely signified he suffered from a psychotic reaction.  
The MEB was fixated on the applicant’s PTSD diagnosis, concluding he was fit for duty 
since his diagnoses were transient reactions, not PTSD.  There is no reference to 
persistence of symptoms sufficient to require frequent hospitalization or the lack of 
improvement of symptoms by hospitalization.

	q.  Dr. XXX, the applicant’s forensic psychiatrist, filed a rebuttal to the MEB in 2017, 
later revised in 2019 after the current joint remand of the case to the Board.  Dr. XXX 
took issue with the MEB’s cavalier dismissal of the applicant’s medical records relating 
to prescribed antipsychotic medication, stating he was particularly concerned that 
neither doctor commented on the administration of a powerful anti-psychotic drug, 
Thorazine, which would indicate the treating physicians at the time believes the 
applicant had a serious, probable psychotic reaction.  It was clear to Dr. XXX that the 
applicant would have been classified as psychotic under Army Regulation 40-501, 
paragraph 3-29 and as psychoneurotic under paragraph 3-30.

	r.  Dr. XXX appraised the applicant’s condition in Vietnam as unfit, because of his 
three periods of hospitalization for mental illness, which today would be diagnosed as 
PTSD and his bizarre behavior including wearing a necklace made from the ears of the 
Vietnamese he had killed, which is clear evidence of his instability.  As such his mental 
illness prevented him from properly serving in his combat role as an artilleryman.  This 
is why he was sent from the field to the hospital then to Fort Lewis for out-processing, 
as opposed to being returned to the line of duty.  Dr. XXX concluded the applicant met 
the post-1981 Diagnostic and Statistical Manual (DSM) criteria for PTSD.

	s.  The MEB panel also disregarded the advisory opinion from the OTSG that the 
applicant likely met the criteria for PTSD at the time of his discharge, contradicting both 
the OTSG opinion and Dr. XXX’s opinion.  The MEB opinion relied heavily on the 
assumption the applicant was not impaired from performing his duties in Vietnam 
because he was returned to duty.  However, the applicant’s bizarre behavior, excessive 
killing, mutilating bodies, and wearing the cut off ears of enemy combatants is strong 
evidence he was psychologically impaired toward the end of his tour of duty in Vietnam, 
which was cut short by his last hospitalization, an act tacitly acknowledging he was unfit 
for duty as an artilleryman.

	t.  Military doctors during the Vietnam war were forces by the exigencies of the 
intensive combat environment to return Soldier to duty who were legally “unfit” per the 
regulatory guidance, but who could nonetheless function and they evacuated only those 
who were the most profoundly disturbed.  As noted by XXX, in “Navy Medicine in 
Vietnam:  Oral Histories from Dien Bien Phu to the Fall of Saigon,” as a psychiatrist, he 
certainly watched out for psychotic symptoms since patients were inconsistent with 
functioning and determined psychosis by looking for evidence of schizophrenia and any 
other psychotic state.  If everyone who experienced this typically acute disorder had 
been evacuated, they would not have had an Army in Vietnam.  If they could seal it over 
enough to go back to duty and continue functioning, they did so.

	u.  The applicant was one of the Soldiers who could not “seal it over” or cope with 
the horrors of war.  He did not have an acute conditions; he was one of the Soldiers 
who experienced anxiety and depression associated with the taking of lives.  He was 
one of the Soldiers who acted out by engaging in bizarre behavior.  The applicant’s bout 
with PTSD, secondary substance abuse, and its effects on his life after discharge show 
that he was one of the Soldiers who ought to have been sent to a treatment center for 
extensive therapy after his separation from the Army in 1970, and not left to his own 
devices to cope with flashbacks, irritability, isolation, and anger.  Therefore, the Board 
should reverse its earlier denial of the applicant’s petition and grant him a change to his 
discharge to physical disability retirement.

3.  A Standard form 88 (Report of Medical Examination), dated 19 July 1967 shows the 
applicant underwent a physical examination for the purpose of enlistment and was 
found qualified for enlistment with a physical profile rating of “1” in all categories.  

4.  He subsequently enlisted in the Regular Army in the rank/grade of private/E-1 at the 
age of 17 for a period of 3 years on 26 July 1967, with an expiration term of service 
(ETS) date of 25 July 1970.  

5.  After completion of Basic Combat Training (BCT), he was assigned to Fort Bliss, TX, 
from 30 September 1967 through 14 December 1967, for Advanced Individual Training 
(AIT), where he was awarded MOS 13F (Automatic Weapons Crewman).

6.  He accepted non-judicial punishment (NJP) under Article 15 of the Uniform Code of 
Military Justice (UCMJ) while in AIT on 19 October 1967 for failing to secure his locker 
on 19 October 1967.

7.  A Clinical Record Cover Sheet shows that on 27 October 1967, he was admitted to 
William Beaumont General Hospital for medical observation for possible appendicitis.  
His physical profile rating was “1” in all categories.  A DA Form 8-274 (Medical 
Condition – Physical Profile Record) shows that on 1 November 1967 he was released 
and returned to his unit as medically qualified for duty with an unchanged physical 
profile rating.  He did not require any major assignment, geographical, or climatic area 
limitations.

8.  He was reassigned to Panama on 12 January 1968, where he was assigned to 
Battery A, 4th Missile Battalion, 517th Artillery, Fort Davis, Panama Canal Zone, where 
his principal duty MOSs were 13F, 45F (Artillery Mechanic), and 16F (Light Air Defense 
Artillery Crewman).

9.  A Clinical Record Cover Sheet shows he was admitted to Coco Solo Hospital in 
Panama on 30 January 1968 where he was diagnosed with syncope (fainting) in the line 
of duty.  He was discharged back to duty on 31 January 1968 with an unchanged 
physical profile and no physical limitations.

10.  14th Missile Battalion, 517th Artillery, Panama Canal Zone Special Court-Martial 
Order Number 17, dated 2 August 1968 shows the applicant was arraigned and tried 
before a special court-martial on 30 July 1968.

	a.  He was charged with and found guilty of:

*	violating a lawful general regulation on 12 June 1968 by operating a military 
vehicle without a military operator’s license
*	unlawfully leaving the scene of an accident wherein he was the driver on 12 June 
1968 without making his identity known 

	b.  He was sentenced to reduction in rank/grade from private first class/E-3 to 
private/E-1, forfeiture of $50.00 per month for 3 months, and to perform hard labor for 
30 days.

11.  A Standard Form 502, dated 6 August 1968 shows:

	a.  The applicant was admitted to Coco Solo Hospital on 12 June 1968, after he was 
thrown from a moving jeep in a car accident wherein he jumped from the driver’s seat of 
the vehicle, sustaining a blow to his back.  X-rays prior to his admission showed no 
obvious injury of the spine.

	b. Examination showed he was depressed.  There was an abrasion of the right 
sacral region with moderate muscle spasm and an abrasion over the right greater 
trochanter and tenderness over the right anterolateral thigh.  His straight leg raising was 
positive bilaterally at 30 degrees.  The rest of the physical examination was within 
normal limits.  X-rays of the left shoulder and humerus were negative.  Serology was 
nonreactive and urinalysis normal.

	c.  His hospital course consisted of placing him on bed rest and given a full liquid 
diet.  He was given meprobamate (minor tranquilizer), 400 mg four times per day for his 
muscle spasms.  A psychiatric consultation was obtained and the diagnosis given was 
that of gross stress reaction.  At several times he required heavy sedation with 
Thorazine and Librium.  During his hospital stay he was found to have pediculosis pubis 
(pubic lice) which was treated with Kwell ointment.  During the latter part of his hospital 
stay he developed many varied minor complaints.  No objective findings were present 
with any of these complaints.

	d.  His final diagnoses were listed as:

*	transient stress reaction, manifest by depression
*	multiple contusions
*	pediculosis pubis

	e.  He was discharged on 28 June 1968 and his disposition at the time of discharge 
was listed as light duty for 1 week.  No follow-up surgical clinic appointment was 
necessary and the psychiatrist felt that no follow-up psychiatric appointment was 
necessary.

12.  A second Standard Form 502, dated 22 January 1969, shows:

	a.  He was admitted to Coco Solo Hospital for evaluation on 11 January 1969 as an 
artillery mechanic with complaints of headache and chest pain.  He complained of the 
onset of mild headache and right upper antero-lateral chest pain that began 3 weeks 
prior to his admission.  His headache was bi-temporal, throbbing, and relieved by 
pressure over the temporal arteries.  He stated he considered himself to be overworked 
in his job and was unhappy with his assignment in the Canal Zone.

	b.  Because of lack of physical findings, he was referred for psychiatric evaluation 
where he was found to be immature and his symptoms were due to transient situational 
stress.  His discharge from the hospital was advised and he was prescribed 5mg of 
Valium twice daily with the recommendation that if possible, he be given convalescent 
leave to return home.

	c.  His final diagnosis was transient, situational, personality pattern disturbance and 
he was discharged on 22 January 1969.

13.  He again accepted NJP on 19 March 1969 for failing to go to his appointed place of 
duty at the time prescribed, namely reville formation.

14.  On 2 June 1969, he received a letter of congratulations from the Headquarters, 
U.S. Army Southern Command Chief of Staff, congratulating him on behalf of the 
Commander for completing his high school education equivalency through the General 
Educational Development (GED) tests.  He was encouraged to continue his self-
improvement by participating in more advanced study to maximize his career potential 
and leadership abilities.

15.  After 1 year and 6 months, he departed Panama on 11 July 1969, enroute to the 
U.S.  On 18 August 1969, he was assigned as a 94B (Cooks Helper) to A Battery, 3rd 
Battalion, 62nd Artillery, Fort Bliss, TX, for 2 months while he awaited reassignment to 
Vietnam.  He was promoted to specialist/E-4 on 24 September 1969.

16.  Counsel provided a copy of a Chronological Record of Medical Care, dated 
11 October 1969.  The form states the applicant was seen for his complaints of 
headaches.  He was quite hostile and anxious, afraid he might tear up the barracks.  
The form also specifically states the neurological exam was completely within normal 
limits.  The psychiatrist prescribed 100 mg Thorazine to reduce anxiety.

17.  The applicant was departed from his unit at Fort Bliss, TX, on 30 October 1969, 
enroute to Vietnam.  At the time of his departure for Vietnam, records indicate the 
applicant did not have sufficient service time remaining on his enlistment contract to 
complete a normal 12-month tour in Vietnam and would either have to reenlist or extend 
his enlistment in order to be able to serve a 12-month tour or alternately return early, 
prior to a 12-month tour to accommodate his contractual ETS in July 1970.  

18.  Records indicate he was absent without leave from 25-28 November 1969 and 
arrived in Vietnam on 1 December 1969, where he was assigned to Battery D, 4th 
Battalion, 60th Artillery Regiment effective 9 December 1969 and subsequently 
participated in three campaigns.  He was promoted to sergeant/E-5 on 28 March 1970.  
His DA Form 20 (Qualification Record) shows his conduct and efficiency throughout his 
tour of duty in Vietnam were rated as “excellent.”

19.  A Consultation Sheet, dated 22 April 1970 shows:

*	the applicant was referred to the Neurological Psychiatric Clinic at the 71st 
Evacuation Hospital as agitated and nervous with probable situational anxiety
*	he had 86 days until his date eligible to return from overseas (DEROS)/ETS and 
recently had some difficulty in interactions with supervisors and men in his squad
*	he complained of tension headaches, nervousness, and being short-tempered
*	the examining doctor thought some of these problems could resolve themselves 
and he would be given 10 mg Librium 3-times daily for 2 weeks
*	he was diagnosed with situational anxiety

20.  There is no evidence the applicant reenlisted or extended his enlistment contract or 
requested to do so prior to his scheduled ETS date to accommodate a normal 12-month 
tour in Vietnam, thus he was transferred to Fort Lewis, WA, on 14 July 1970 for out-
processing and release from active duty at the time of his ETS.

21.  A Standard Form 88, dated 16 July 1970, shows the applicant underwent a medical 
examination on the date of the form for the purpose of separation.  The applicant 
handwrote in the notes section of the form “My physical condition has not changed.”  He 
was given a physical profile rating of “1” in all categories and found qualified for 
separation.  

22.  Headquarters, U.S. Army Personnel Center, Special Orders Number 198, dated 17 
July 1970, released the applicant from active duty, not by reason of physical disability 
and transferred him to the U.S. Army Reserve Control Group (Reinforcement) effective 
18 July 1970.

23.  His DD Form 214 shows he was honorably released from active duty as an 
Overseas Returnee on 27 July 1970 in the rank/grade of sergeant/E-5, and transferred 
to the U.S. Army Reserve Control Group (Reinforcement).  He was credited with 
completion of 2 years, 11 months, and 19 days of net service this period, 7 months and 
17 days of which were served in Vietnam.  He was given a reenlistment (RE) eligibility 
code (RE) code of “3B” (individuals who have time lost during their last period of service 
and are ineligible for enlistment unless a waiver is granted).  He was authorized or 
awarded the:

*	National Defense Service Medal
*	Vietnam Service Medal with 3 bronze service stars
*	Republic of Vietnam Campaign Medal with Device (1960)
*	one overseas service bar

24.  U.S. Army Reserve Components Personnel and Administration Center Letter 
Orders Number 06-1151275, dated 20 June 1973, honorably discharged the applicant 
from the Standby Reserve effective 1 July 1973, due to ETS.

25.  A Standard Form 88, dated 27 August 1981, shows the applicant underwent a 
medical examination on the date of the form for the purpose of enlistment in the 
NYARNG.  He was given a physical profile rating of “1 for the categories physical 
capacity/stamina, upper extremities, lower extremities, and psychiatric and was given a 
rating of “2” for hearing/ears and eyes.  He was found medical qualified for enlistment.  

26.  He enlisted in the ARNG of the U.S. with assignment in the NYARNG on 20 
January 1982 for a period of 1 year, where his duty MOS was 75B (Unit Clerk).  

27.  A 9 March 1982 memorandum from the 1st Battalion, 187th Field Artillery Adjutant, 
commends the applicant for his outstanding efforts in preparing his battery for the 
annual general inspection.  It states his untiring efforts and devotion were instrumental 
in overcoming many obstacles which resulted in an overall satisfactory rating and this 
letter would be placed in his Military Personnel Records Jacket.  

28.  Records indicate he remained in the NYARNG through 10 July 1983, when he 
reenlisted in the ARNG of the U.S. with assignment in the CAARNG for a period of 
1 year on 11 July 1983.  

29.  A CAARNG memorandum, dated 18 October 1983, requested the applicant’s 
discharge due to continued absence from drill.  AN NGB Form 22 (Report of Separation 
and Record of Service) shows he received a general discharge under honorable 
conditions from the CAARNG on 31 October 1983 after 3 months and 20 days of net 
service in the CARRNG and a total of 4 years, 5 months, and 29 days of prior Reserve 
component service.

30.  The applicant wrote a multi-page statement to include with a claim to the VA, dated 
22 April 1987, recollecting his 7-month tour of duty in Vietnam and its repercussions on 
his life

	a.  While in Vietnam he engaged in several encounters with the Vietcong and North 
Vietnamese regulars.  He was part of a defensive perimeter on a hill called Du-Lap and 
every morning for 4 months they would receive enemy fire right before the sun came up 
and late at night.  There were several attempts by the enemy to take the hill and he 
used to do his own gunning and viewed them through a speed ring sight in which he 
would take aim.  He was a very good gunner and squad leader.  He got to be so good 
he could take a head off clean from 100 to 200 yards away.  He once took a head off 
one enemy and he rest of the body kept on running.

	b.  Because his weapon was designed for anti-aircraft and not ground troops, he 
racked up many victims and would many times cry while pumping those rounds out.  He 
finds all he witnessed through his speed ring sight hard to erase from his mind.  He 
killed a lot of people when he was 19 and this is very much affecting him now with 
emotional outbursts and flashbacks.  He cries for reasons he can’t tell others because it 
was such an unpopular war, they look at him as though he enjoyed it and don’t want 
anything to do with him.

	c.  He remembers one day when they took three or four bodies back to the base 
camp to get credit for kills and the bodies had to be places in canvas and on the back 
deck of the track where the grills to the engine were and the 20 miles back the bodies 
began to stink of burning flesh, which is a smell to this day he’ll never forget.

	d.  He finds it hard to be social with others.  He sometimes scares his family when 
he wakes up screaming and his kids are afraid he’ll blow up.  He tried to go back to 
school several times, but could never finish because during class he would get 
flashbacks.  He was unable to concentrate and would get uncontrollably angry, fearing 
he would hurt someone if he got pushed too hard.  He had several jobs since 1970, but 
had difficulty keeping many because he’d have spells where he’d see things that 
weren’t there and not be able to sleep at night.

31.  A VA Rating Decision shows he was given a service-connected disability rating of 
30 percent for PTSD effective 27 February 1987.

32.  A Standard Form 807 shows the applicant was referred for a psychiatric evaluation 
for the purpose of VA compensation on 12 May 1987 while an inpatient at Montrose VA 
Medical center undergoing the Vietnam Veteran’s PTSD program.  From that program 
he was referred to the psychiatry ward.  He was diagnosed with chronic PTSD, cocaine 
abuse and amphetamine abuse.

33.  The applicant provided a sworn statement, dated 6 July 1999, which largely 
reiterates his prior statement to the VA and Counsel’s multiple statements regarding the 
applicant’s military service and mental and physical condition.

34.  The applicant applied through Counsel to the ABCMR in 1999, requesting 
correction of his records to reflect physical disability retirement or discharge due to 
PTSD in lieu of honorably release from active duty for the convenience of the 
Government as an overseas returnee.  On 16 March 2000, the Board denied his 
request, determining his discharge was both proper and equitable.

35.  On 23 October 2006, the applicant’s mother provided written answers to form 
questions, presumably composed by Counsel for the use of the ABCMR.  She states in 
pertinent part:

	a.  Prior to his enlistment in the Army at age 17, her son was a very smart and caring 
person, who always thought of other people and was willing to help in any way he could.  
He never had to be told how to treat people and would strive to treat them as he would 
want to be treated.  She tried to talk him out of joining the Army at the age of 17, but it 
was impossible; he felt he had to go help those people in Vietnam.

	b.  When he returned from Vietnam in 1970, he was very confused about everything.  
He would change subjects and never finish any thought process.  He was very jumpy 
and restless most of the time as well as argumentative.  She didn’t know who he had 
become.  She was always afraid of his outbursts full of rage and there was little to no 
communication.

	c.  In the years between 1970 and 1987, he could not hold a job for any meaningful 
period of time.  He had problems relating to authority figures and this made it quite 
unbearable for her to give him advice.  The police would often come by and had him 
take a walk; they understood his condition better than she did.  He was always angry 
and not sociable, keeping to himself and not relating to anyone who hadn’t been in 
combat.   They would wake up from his screams late at night and would run out of the 
house for fear of what he would do.

	d.  She is proud her son served his country, but the cost was too high.  His mental 
condition did come from his time in Vietnam and she is sorry to say he will never line up 
to his full potential.

36.  A Forensic Psychiatric Report, dated 18 September 2007, shows Dr. XXX, 
Psychiatrist, interviewed the applicant and examined all of his available records for the 
purpose of providing a report for his pending litigation.  The report states:

	a.  A chronological history of the applicant’s service through 1970 faithfully reiterates 
his military service and medical history as detailed above.  Dr. XXX then lists the 
applicant’s VA treatment from 1986 through 1997, stating the following in pertinent part:

*	on 23 November 1986 he was diagnosed with atypical depression and 
adjustment disorder by the VA
*	on 16 January 1987 he was hospitalized at a Montrose VA facility for drug 
rehabilitation and was diagnosed with PTSD on 9 February 1987 while in the 
program
*	on 27 February 1987 the applicant filed for service-connected disability with the 
VA and provided a letter in support of his claim (detailed above)
*	on 9 April 1987 he was transferred to a Psychological Rehabilitation Program
*	on 15 May 1987, a VA Report of Medical exam for Disability listed his diagnoses 
as PTSD, cocaine abuse, and amphetamine abuse
*	on 11 June 1987, he was discharged from the Montrose VA program with a 
diagnoses of PTSD and mixed substance abuse and he was deemed 
unemployable
*	on 7 July 1987 he received a 30 percent VA disability rating for service-
connected PTSD
*	on 9 July 1990 he received a 100 percent VA disability rating for service-
connected PTSD after referral by VA PTSD unit for psychiatric evaluation
*	VA psychiatric evaluation in 1990 states the applicant’s family couldn’t cope with 
his uncontrollable rage outbursts; he broke his son’s arm after kicking him and 
his wife received a protection from abuse (PFA) in 1983 after suffering broken 
ribs and black eyes; he was arrested for assault; his flashbacks triggered rage
*	he claimed to have killed up to 60 people on 1 day with his weapon that fired 240 
rounds per minute and described bodies being scooped up by bulldozer for 
burial; he had to tag and bag bodies of American Soldiers and try to match body 
parts of dead bodies; he started using Speed to enable him to kill more
*	admitted to VA hospital on 2 May 1992 and discharged on 14 August 1992 with 
PTSD, substance abuse, and personality disorder diagnoses; admitted to PTSD 
inpatient program on 22 April 1994 and discharged on 7 June 1994 with 
diagnoses of chronic PTSD, cocaine dependence, and personality disorder
*	during 5 August 1996 psychiatric exam, claimed to have participated in behaviors 
including mutilating dead enemy bodies and wearing “ear necklaces” which he 
says prematurely ended his tour in Vietnam; he couldn’t extend in Vietnam 
because he cut heads and ears off in front of the wrong person
*	9 August 1996 discharged from VA Medical Center to residential rehabilitation 
program experiencing nightmares and intrusive thoughts with profound social 
isolation, and hyper arousal with hyper vigilance that worsen when not taking 
antipsychotics
*	much of his legal history, to include incarceration at Riker’s Island in 1987 is 
consistent with untreated PTSD

	b.  Dr. XXX determined through examination there is reasonable evidence to show 
the applicant suffered from PTSD while in Vietnam and that his symptoms continued to 
affect him after his honorable separation in 1970.  There is no doubt about the presence 
of PTSD based on all his known symptoms.

	c.  It is Dr.  XXX’s opinion the applicant’s PTSD did not begin in 1987 when he was 
first diagnosed with PTSD.  By definition alone, it had to have begun ant an earlier date.  
Referring to his Army medical records, the transient stress reaction diagnosed on 12 
June 1968 in fact represents an anxiety disorder that was the precursor of the 
applicant’s later PTSD.  Preexisting anxiety is well accepted as a substantial risk factor 
for the development of PTSD.  At that time he required “heavy sedation” with 
antipsychotic medication and again was treated with antipsychotic medication on 11 
October 1969 when he presented with severe anxiety and/or PTSD in the early stages.  
The 22 April 1970 diagnosis of situational anxiety is another misdiagnosis of what was 
clearly PTSD, having been in Vietnam and exposed to the extreme degree of killing that 
he was.

	d.  The DSM in effect at the time of his discharge, which was published in 1968, 
used the diagnosis of Gross Stress Reaction, the exact diagnosis he was given upon 
admission to Coco Solo Hospital in 1968.  Gross Stress Reaction is now called PTSD 
and the treatment the applicant received at that time would be considered state of the 
art treatment for PTSD in that time period.

	e.  The applicant had an anxiety disorder with psychosis and demonstrated 
symptoms of PTSD while on active duty, including horrendous over-killing.  These 
symptoms clearly interfered with his ability to perform his military duties effectively.  To 
claim his in-service psychiatric treatments were transient and independent, unrelated 
episodes is incorrect, disingenuous, and does a significant disservice to the applicant.  
He obviously did not return to his unit unimpaired as he required subsequent 
hospitalization.

	f.  Based on the medication he was prescribed, it is likewise erroneous to categorize 
his episodes as mild, as those were usually the most potent antipsychotics available at 
the time and at high doses.  When he was discharge from the Army in 1970, he was not 
fit for duty, but was not given an MEB or a psychiatric review.  This violates his due 
process rights.  He was not fit because of his mental illness, which would today be 
diagnosed as PTSD.  His wearing of the Vietnamese ear necklace is evidence of his 
instability and shows he was not the type of Soldier one would want in charge of twin 40 
mm guns.  As such, his mental illness prevented him from properly serving in his 
combat role as an artillery gunner.

37.  On 11 March 2016, the applicant’s cased was remanded to the ABCMR pursuant to 
a Joint Stipulation of Settlement and Dismissal issued by the U.S. District Court for the 
, for the ABCMR to reconsider the applicant’s prior request in light of 
the Secretary of the Defense memorandum, dated 3 September 2014, as supplemented 
by the Principal Deputy Under Secretary of Defense memorandum dated 24 February 
2016 pertaining to PTSD.

38.  In the adjudication of the 2016 Court remanded case, an advisory opinion was 
obtained from the OTSG, Chief, Behavioral Health Division on 17 June 2016, which 
states:

	a.  Records are consistent in describing the applicant’s combat experiences, 
including killing, dismemberment, and collecting bodies to bring back to base “for 
credit.”  The applicant observed he was unable to extend his tour in Vietnam because 
he cut heads and ears off in front of the wrong person.  He told at least one behavioral 
health provider that when he learned the Viet Cong believed they could not enter 
heaven unless their bodies were intact, he began to sever and hide body parts of dead 
enemy Soldiers.  He also noted he wore a necklace he made from human ears.

	b.  Records confirm he was diagnosed with various anxiety disorders during his 
military service:  transient stress reaction, manifest by depression on 12 June 1968, 
transient situational stress on 11 January 1969, and situational anxiety on 22 April 1970 
while in theater.  Following his discharge, he was hospitalized at least seven times and 
was always discharged with a diagnosis of PTSD.  He was been in outpatient treatment 
at the VA since 1987 and in November 1992, was granted a service-connected disability 
for PTSD with a rating of 100 percent, effective when he was first diagnosed by the VA 
in February 1987.

	c.  There is no absence of documentation that the applicant was exposed to horrific 
and life-threatening events and developed symptoms of PTSD while serving in Vietnam.  
Repeated and prolonged hospitalizations after his discharge attest to the degree of 
functional impairment, as do his treatment records and a 100 percent service-connected 
VA disability rating.

	d.  The applicant’s request for medical disability discharge or retirement required that 
he be determined unfit for duty at the time of is separation.  In their March 2000 
decision, the Board stated the applicant was performing his required duties until the 
time of his discharge in 1970, thereby creating the presumption of fitness.  In contrast, a 
September 2007 evaluation by a forensic psychiatrist maintains that wearing a necklace 
of human ears was evidence of the applicant’s instability and that mental illness 
prevented him from properly serving in his combat role as an artillery gunner.  The fact 
that he was sent home from theater is evidence he was considered unfit for continued 
combat duty.  

	e.  The evidence suggests the applicant should have been referred for an MEB to 
determine his eligibility for a medical retirement.

39.  Having considered all of the available evidence, the Board voted on 13 October 
2016 to grant the applicant partial relief, having determined the evidence presented was 
sufficient to warrant such relief.  

	a.  As a result, the Board directed the review of all of the applicant’s records by the 
OTSG to determine if he should have been referred to the Physical Disability Evaluation 
System (PDES) prior to his release from active duty in 1970.

	b.  After the directed review of his records, should the OTSG make a determination 
that the applicant should have been separated under the PDES, these proceedings 
would serve as the authority to void his administrative separation and issue him the 
appropriate separation retroactive to his original discharge date, with entitlement to all 
back pay and allowances and/or retied pay, less any entitlements already received.

40.  Subsequently, the applicant’s complete records were sent to the U.S. Army Medical 
Department Activity, Fort Benning, GA, MEB for review to determine if he should have 
been separated under the PDES at the time of his release from active duty in 1970 due 
to a diagnosis of PTSD.  On 30 November 2016, the Senior MEB Physician there 
authored a memorandum, stating:

	a.  It was the Senior MEB Physician’s opinion that at the time of the applicant’s 
release from active duty in July 1970, he would not have qualified for a diagnosis of 
PTSD nor did he have a condition that would have warranted his disposition through 
medical channels and require an MEB.

	b.  The applicant was initially hospitalized on 12 June 1968, well before he was ever 
deployed to Vietnam on 1 December 1969 and he was given a discharge diagnosis, 
which is more accurate than an admission diagnosis, of transient stress reaction.  He 
was not given a diagnosis of either a gross stress reaction or adjustment reaction to 
adult life, which is what mental health providers would have used for someone suffering 
from PTSD at that time.  Furthermore, his transient stress reaction was so minimal that 
he did not even require any follow on treatment.

	c.  His second hospitalization was on 11 January 1969 (also well before his 
deployment to Vietnam) for headaches and chest pain and due to a lack of findings, he 
was referred to psychiatry who found him to be “immature and that his symptoms were 
due to transient situational stress.”  Consequently, the Senior MEB Physician would not 
even consider this to be a psychiatric admission.

	d.  Neither one of these aforementioned hospitalizations and diagnosis were the 
result of a traumatic experience nor prevented him from performing his duties, as was 
evident by the fact that his mental health status was good enough for him to be 
deployed to Vietnam.

	e.  While in Vietnam, the applicant was seen at the 71st Evacuation Hospital once 
for headaches, nervousness, being short-tempered, and some difficulty interacting with 
his supervisors and men.  He was diagnosed with situational anxiety, again, not a gross 
stress reaction or adjustment reaction to adult life, and the provider concluded by stating 
he thought that “these problems can resolve themselves,” which they obviously did, as 
the applicant was able to continue functioning for the remainder of his tour until he was 
discharged in July 1970.

	f.  Given the above circumstances, the Senior MEB Physician would not have 
diagnosed him at that time with either a gross stress reaction of an adjustment reaction 
to adult life (PTSD) nor would he have felt that that his previous diagnoses would have 
warranted his disposition through medical channels and an MEB.

	g.  The applicant’s condition did not require any extended or recurrent hospital stays 
for mental health reasons, limitations of duty or duty in a protected environment, nor did 
his mental health condition interfere with his ability to function/perform his duties to a 
level that would be considered disabling, all of which are criteria necessary to initiate an 
MEB.  Furthermore, the conditions with which he had been diagnosed (which were 
situational, transient in nature, and likely to have been called an adjustment disorder 
today, an ailment from which most patients are expected to overcome given time) had 
yet to fail any conservative forms of treatment.

	h.  With regard to the supplemental information in the applicant’s case, which was 
reviewed, to include his VA ratings for his manifested PTSD, his findings were based off 
documents available prior to and up to the time of the applicant’s discharge, and 
consequently, the applicant did not warrant a diagnosis of PTSD or an MEB despite his 
current diagnosis.

	i.  Additionally, even if the applicant were given a diagnosis at the time of gross 
stress reaction or and adjustment reaction to adult life (PTSD), he would still not have 
required an MEB because he was not impaired at that time from performing his duties 
or show a degree of impairment that would have warranted an MEB.

41.  On 9 December 2016, ARBA sent the applicant a letter stating his available records 
were reviewed to determine if he should have been referred to the PDES, as directed by 
the ABCMR.  A copy of the above-referenced letter from the U.S. Army Medical 
Department Activity, Fort Benning, GA, Senior MEB Physician was enclosed for the 
applicant’s review.

42.  On 28 June 2018, Counsel wrote a letter to the Secretary of the Army, enclosing an 
appeal and request for reconsideration of the applicant’s prior denial for amendment to 
his discharge to reflect physical disability retirement.  

43. ARBA responded to Counsel’s letter on 2 August 2018, stating that Counsel’s letter 
to the Secretary of the Army had been referred to ARBA for response.  

	a.  Records indicated the ABCMR’s most recent consideration of the applicant’s 
request was the result of his pursuit of this matter through U.S. District Court for the 
  The Court directed remand of his case back to the ABCMR to 
revisit the same issues.

	b.  As a result of the remand, the ABCMR granted relief in the applicant’s case and 
directed the OTSG to examine his records to determine if he should have been referred 
to the PDES prior to his discharge from the Army.  If the applicant finds the OTSG 
decision unsatisfactory, he should seek relief from the Court.

44.  Counsel provided a letter from Dr. XXX, dated 27 April 2019, which states in 
pertinent part:

	a.  He re-reviewed all materials reviewed in making his original 2007 report and 
reviewed all additional documentation stemming from the applicant’s 2016 ABCMR 
case.  He respectfully disagrees with the report and findings of the MEB doctors 
pertaining to the applicant.  Neither doctor commented on the administration of a 
powerful anti-psychotic drug, Thorazine at a dose that would indicate the treating 
physicians believed their patient had a serious probable psychotic reaction.

	b.  Referencing Army Regulation 40-501, in effect at the time, the applicant would 
have been classified under paragraph 3-29 as psychotic and under 3-30 as 
psychoneurotic.  These include in their definitions that the person has symptoms 
sufficient to interfere with performance of duty, frequent hospitalizations without 
improvement and the symptoms were not due to weakness of motivation or underlying 
personality disorder.

	c.  At the time of his June 1968 hospital admission, he was diagnosed with  a gross 
stress reaction, but upon discharge from the hospital was diagnosed with a transient 
stress reaction manifest by depression and had many varied minor physical complaints 
for which no objective findings were discovered.  In other words, he had the common 
and well accepted somatic (physical) manifestations of anxiety.  The MEB doctors 
appear to accept a diagnosis of gross stress reaction as being equivalent to PTSD and 
they dismiss the diagnosis of gross stress reaction in favor of the transient stress 
reaction.

	d.  He agrees that the closest analogous diagnosis in the DSM-II, in effect at the 
time, would be an adjustment reaction to adult life.  This would reflect an acute reaction 
to an overwhelming environmental stress, such as fear associated with military combat 
and manifested by trembling, running, and hiding.  However, the DSM-II is clear that if 
the symptoms persist after the stress is removed, the diagnosis of a different mental 
disorder is indicated.  Thus, the persistence of symptoms beyond the time period of 
military service cannot be coded as adjustment reaction to adjust life.

	e.  The Army doctors seem to make a primary issue of the applicant having 
symptoms while enlisted that were not present pre-enlistment, but occurred prior to his 
deployment to Vietnam.  They opine his somatic manifestations of anxiety are not a 
manifestation of anxiety.  However, they fail to identify just what medical condition 
existed that manifests as headaches and chest pain with a lack of physical findings, 
triggering a referral to psychiatry.  These MEB doctors do not recognize obvious 
somatization, despite the medical providers at the time recognizing it.  

	f.  The statement that the applicant’s first two hospitalizations were not the result of a 
traumatic experience shows the MEB doctors did not rely on the diagnostic criteria of 
that time period.  Trauma was not required for the adjustment reaction to adult life 
diagnosis in 1968 and to apply today’s criteria is inappropriate and lacks all validity.

	g.  He has no doubt that the MEB doctor would not have diagnosed the applicant 
with either a gross stress reaction or and adjustment reaction to adult life nor would he 
have supported any disposition through medical channels. However, his decision to 
“down-code” the applicant’s symptoms and presentation to a modern day, self-remitting 
adjustment disorder is unsupported by a fair and balanced review of the information.  It 
ignores the clinical course of his disorder, as evidenced by the many years of suffering 
through the applicant’s life.  It ignores the diagnoses given to him, including PTSD by 
the VA, and those of the doctors that treated him over the past 40 plus years.

45.  Counsel submitted a four-page summary of the applicant’s military career, dated 
22 May 2019, the most of which is either contained verbatim or detailed at greater 
length in Counsel’s 13-page memorandum summarized above under the section 
heading “Counsel States.”  Of note are the following statements not contained in 
Counsel’s prior memorandum:

	a.  When the applicant enlisted in the Army, he was only 17 years old, which was too 
young to be sent to Vietnam, so he was sent to Panama for 18 months.  When he 
turned 18, he was ordered to Vietnam, where he was assigned to an artillery battery at 
the Cambodian border from 1 December 1969 through 18 July 1970 as an anti-aircraft 
cannon gunner.  The area of his assignment was in a perimeter defense area, which 
was the scene of constant combat.  He became a top gunner there and a squad leader 
and killed a large number of enemy soldiers with his weapon he nicknamed the 
“Duster.”  He later said he could “take a head off clean at 100 to 200 yards,” using the 
V-ring sights mounted on his weapon.  He was promoted to sergeant/E-5 after 3-months 
of service with this battery, but his commanding officer’s objections to his behavior, 
which included mutilating dead enemy bodies and wearing “ear necklaces,” prematurely 
ended his tour in Vietnam.  He was honorably released from active duty shortly 
thereafter.

	b.  On 20 January 1982, he enlisted in the NYARNG and received a discharge on 30 
June 1983 to permit him to enlist in the CAARNG for a period of 3 months, receiving a 
discharge from the CAARNG on 31 October 1983.

	c.  The applicant’s mental health was drastically affected by his tour of duty in 
Vietnam.  He had no drug experience prior to Vietnam and no psychological or 
behavioral problems before entering the service.  When he first had to kill, he was 
anxious and frightened, but after his first encounter, he began using speed.  He 
continued to use speed during his 7-month combat tour to remain hyper alert and to 
take away all feelings.  He also reported using opiates in Vietnam to alleviate hyper-
arousal and despair.

46.  In the adjudication of this current Court-remanded case, an ARBA medical advisor, 
a psychologist with a doctoral degree in psychology, accredited through the American 
Board of Professional Psychology,  provided an advisory opinion on 2 July 2019, 
stating:

	a.  A review of the applicant’s military and military medical records indicates his 
return to duty with no duty limitations after each hospitalization, except for 1 week of 
light duty for physical injuries after a jeep accident.  His hospitalizations were initiated 
due to physical complaints and included consultation with psychiatry.  In all cases, he 
returned to duty without restrictions or requirements for follow-up care.  On 16 July 
1970, he was found to meet retention standards in accordance with Army Regulation 
40-501 as part of his separation physical.

	b.  On 20 June 1973, he joined the NYARNG, meeting accession fitness for duty 
standards in accordance with Army Regulation 40-501.  He subsequently joined the 
CAARNG on 11 July 1983.  Physicals are required to verify individuals meet accession 
standards, which are higher than retention standards.  This required the applicant to 
confirm on two separate, in 1973 and in 1983, that he had no medical (mental or 
physical) conditions that impaired his functioning and that he met accession standards.

	c.  It is acknowledged that the applicant has a VA service-connected disability rating 
for PTSD.  This determination alone, however, does not automatically mean that military 
medical disability discharge or retirement is warranted.  It is important to understand 
that the VA operates under different rules, laws, and regulations when assigning 
disability percentages.  The Army has neither the role nor the authority to compensate 
for progression or complications of service-connected conditions after separation.

	d.  The applicant did not have a behavioral health diagnosis that warranted 
processing through the MEB at the time of his release from active duty.  Medical 
retirement is not the correct disposition for this case.  A copy of the complete medical 
advisory was provided to the Board for their review and consideration.

47.  The applicant was sent a copy of the advisory opinion and given an opportunity to 
submit comments.  On 30 July 2019, Counsel responded to the advisory opinion, 
stating:

	a.  The anonymous advisory opinion, provided by an unidentified ARBA medical 
advisor is not responsive to the issues before the Board.  The applicant moved to 
reconsider the former decision of the ABCMR and this motion is on a second remand 
from the U.S. District Court for the District of Columbia because the ABCMR did not 
comply with its obligation under the court stipulation to make a final decision on the 
issue of the applicant’s disability.

	b.  Following the first remand, the ABCMR directed that the OTSG review the 
available records to determine if the applicant should have been referred to the PDES.  
Then, an MEB physician and psychologist opined that the applicant would not have 
required an MEB.  The ABCMR erroneously allowed that advisory opinion to stand as 
the Army’s final decision instead of reviewing the decision itself.  That error resulted in 
this second remand.  On this second remand, the applicant has explained why the MEB 
doctor’s advisory opinion should be rejected by the Board.

	c.  The anonymous medical advisor who furnished the 2 July 2019 opinion was not 
identified as a clinical psychologist or psychiatrist as required by law, which would void 
that advisory opinion.  The 2 July 2019 opinion also suffers from many of the same 
deficiencies as the 30 November 2016 report from the MEB that convened at Fort 
Benning, GA.

	d.  The advisory opinion does not refer to the previous advisory opinion from the 
OTSG, which stated the applicant developed PTSD symptoms while in Vietnam and 
should have been referred to an MEB prior to his discharge and it does not give any 
reason for disregarding the OTSG opinion.  It likewise does not refer to the 
comprehensive assessment made by Dr. XXX on 18 September 2007 or give any 
reason for disregarding this assessment.  Dr.  XXX concluded the applicant suffered 
from PTSD while in Vietnam that rendered him unfit to perform his duties as an 
artilleryman.

	e.  The advisory opinion also does not refer to Dr. XXX’s 23 December 2016 rebuttal 
to the MEB advisory opinion which found the applicant fit for duty, nor does it explain 
why Dr. XXX’s conclusion should be disregarded in this instance or in his 
27 April 2019 report reaffirming the conclusions he reached in 2007.

	f.  The advisory opinion failed to consider the applicant was given extremely high 
doses of Thorazine to curb a psychotic reaction while hospitalized in November 1969 
and it failed to explain why a Soldier with two hospitalizations for anxiety in the Panama 
Canal Zone, followed by a third hospitalization at Fort Hood, TX, was fit to be sent to 
Vietnam to participate in combat.

	g.  The advisory opinion also failed to consider the applicability of Army Regulation 
40-501, paragraphs 3-29 and 3-30 in effect at the time of the applicant’s discharge, to 
properly evaluated fitness for duty or unfitness.  Instead, the retention standards in 
effect in 2011 were applied to this case.  Also not reviewed were the specific standards 
for performance of duties of an artilleryman and how it is the applicant was fit to perform 
those requirements despite four hospitalizations.

	h.  The applicant served 5 months as a clerk in the NYARNG in 1983 and then for 
3 months in the CAARNG in 1983.  His MOS in the ARNG was clerk.  The 2 July 2019 
advisory opinion assumed the applicant was fit for duty as a clerk because he was 
allowed to enlist, but the fact that he could successfully function as a unit clerk in a 
peacetime ARNG unit does not mean that he was fit to perform his duties as an 
artilleryman under combat conditions in 1970.  It is unlikely the applicant even 
recognized he was seriously mentally ill when he served in the ARNG.  Even if he did 
recognize this, the concealment of such facts is not a basis for denying him disability 
retirement benefits.  Under Army regulations, the concealment of a medical condition is 
explicitly excluded from the definition of a fraudulent enlistment.

	i.  Any decision by the ABCMR would be arbitrary and unreasonable if the ABCMR 
does not explain and give reasons for finding the applicant was fit for duty as an 
artilleryman in 1970, based on all evidence before the ABCMR, including Dr. XXX’s 
reports and the OTSG advisory opinion.  The ABCMR must explain why the applicant 
was fit for duty as an artilleryman under fire despite repeated psychiatric hospitalizations 
and the need for doctors to administer him high doses of Thorazine to control his 
behavior.

	j.  The ABCMR cannot alone rely on the 2 July 2019 advisory opinion or the 30 
November 2016 opinion of the MEB to make any finding the applicant was fit for duty.  
Neither document is of help to the ABCMR to meet the legal requirements.  The 
applicant has proved by a preponderance of credible evidence supporting his 
application that he is entitled to a medical discharge.  If the 2 July 2019 advisory opinion 
is void, based on the lack of appropriate credentials of the advisor, the applicant has 
proven by clear and convincing evidence he was entitled to a medical discharge in 
1970.

48.  On 1 August 2019, a representative from ARBA provided Counsel with the ARBA 
medical advisor’s credentials for his review and Counsel acknowledged their receipt.

49.  In addition to Counsel’s formal rebuttal on 30 July 2019, the applicant submitted 
email correspondence on 1 August 2019, which states:

	a.  He was never given a physical examination at the time of his enlistment in the 
NYARNG or the CAARNG.  He couldn’t get a job, so a major from the ARNG went to 
his mother’s house and offered him a job as an Administrative Supply Technician if he 
would enlist in or around 1972.  He would have to serve in the NYARNG if he wanted 
the job.  The major got his name from the Individual Ready Reserve (IRR) list.  That’s 
how the whole thing got started.  He was banned from going back into the Army, so he 
did what he suggested for him to do.

	b.  There were several Vietnam veterans working in the unit he joined in the 
NYARNG, and they were crazier than he was; he was just younger than they were.  It 
was the same with the CAARNG.  He couldn’t get a job so he tried to see if he could get 
a clerk’s job with them, but after 3 months or so, he couldn’t handle the pressure.  He’s 
not really sure what year that was, but 1983 doesn’t ring a bell.  All he knows is that he 
never saw any of their doctors at the time of either enlistment.

50.  Counsel submitted additional email correspondence on 2 August 2019, stating he 
reviewed the applicant’s military service records supplied by the National Archives and 
Records Agency (NARA) some years ago and there were no Standard Forms 88 
(Report of Medical Examination) or Standard Forms 93 (Report of Medical History) for 
the NYARNG or the CAARNG enlistments included in the NARA records.

BOARD DISCUSSION:

The Board has considered all the evidence, including the information provided by Dr. 
XXX, and based on that evidence, the Board must deny the applicant’s request to have 
his 1970 discharge changed to a medical disability retirement. The greater weight of the 
evidence indicates that at the time of his discharge, and in the years immediately 
subsequent to his discharge, the applicant had not manifested symptomatic behaviors 
indicating that the he was unfit for military duty, that he was suffering from PTSD or from 
any other debilitating behavioral health problems.  The applicant and his counsel 
attribute the bulk of the applicant’s current PTSD to the applicant’s harrowing 
experiences in Vietnam.  Yet the record indicates that the applicant sought mental 
health assistance while in Panama in 1969, which predates his deployment to Vietnam.  
In Panama, the applicant states that he attempted to climb into a moving jeep and 
injured his back. Stress related to that incident was assessed by a physician as 
“transient stress reaction, manifest by depression.”  While deployed in Vietnam for 
about 7 months, the applicant performed hard and difficult duty and no doubt was 
exposed to frightening experiences.  But, in the Board’s opinion, the manifestation of 
any behavioral health problems at or near the time of his separation from the Army was 
so minimal that it cannot be reasonably argued that the applicant was, at the time of his 
separation, unfit for duty.  Dr. XXX asserts that the applicant’s visits to medical 
treatment facilities while in Vietnam should have been characterized as psychiatric 
hospitalizations and that the drugs he was prescribed are nearly always associated with 
treating severe psychiatric problems.  But the two Army medical professionals who 
reviewed the applicant’s case in 2016 correctly point out that while in Vietnam, the 
applicant was seen at the 71st Evacuation Hospital complaining of headaches, being 
short tempered, and of some difficulty interacting with his superiors and other Soldiers.  
He was diagnosed with situational anxiety, which does not strike the Board as rising to 
the level of a psychiatric hospitalization.  There is no evidence that the applicant was 
prescribed medication for any conditions other than those conditions cited in the 
records.  According to these two medical professionals, such problems “’can resolve 
themselves;’ which they obviously did, as he – the [applicant] – was able to continue 
functioning for the remainder of his tour until he was discharged” in July 1970.   The 
Board finds the November 2016 opinion of the two medical professionals more 
persuasive than Dr. XXX’s because Dr. XXX’s opinion tends to minimize the fact that 
the applicant was able to successfully complete his enlistment term; the fact that he did 
not require frequent behavioral health visits at or near the time of his separation; and 
the fact that he successfully re-entered the military in the 1980s.  The reason he 
required a waiver to re-enter service was due to four days of lost time (a short AWOL) 
during his previous period of service, and not because of any medical impairment.  
The Board notes the 17 June 2016 opinion by a Medical Corps Lieutenant Colonel and 
Chief of OTSG Behavioral Health Division.  The opinion indicated that the applicant 
should have been referred for an MEB at the time of his discharge.  This opinion likely 
persuaded a previous ABCMR Board to grant relief to the applicant in the form of due 
process to which the applicant was not entitled, namely referral of his case to the 
disability evaluation system for additional review.  But even this opinion, in the Board’s 
view, misinterprets some of the evidence.  For instance, the opinion cites to the 
applicant being “sent home from [Vietnam]” as being “evidence that he was considered 
unfit for continued combat duty.”  The Board’s interpretation of the record, however, is 
that the applicant was redeployed from Vietnam in the summer of 1970 because he was 
nearing the expiration of his term of service.  The applicant’s DA Form 20 (Enlisted 
Qualification Record) covering his service in Vietnam reflects a promotion to SGT, 
Excellent Conduct and Efficiency ratings and the reason for departure as Separation 
from service.  In the end, the Board finds the November 2016 opinion by the two Army 
medical professionals to be the most persuasive of the opinions provided in this case 
and agrees with its assessment that the applicant, at the time of his discharge, did not 
exhibit a degree of impairment that would have warranted an MEB in 1970.  The 
Board’s determination in this regard is also buttressed by its observation that the 
applicant successfully re-entered the military in the 1980s.  The earliest record of VA 
medical treatment began in 1986 after he had re-entered military service. The Board 
found no evidence of treatment for behavioral health conditions between 1970 and 
1986.  Common sense would indicate that the applicant’s PTSD at that time (in the 
1980s), had it been debilitating, probably would have dissuaded the applicant from 
volunteering for additional military duty and would likely have caused medical in-
processing personnel to reject the applicant as unfit for new military service.   As stated 
in the 2019 Medical Advisory opinion, the VA applies different standards for service-
connected disability determinations as opposed to whether a Soldier was medically unfit 
for duty at the time of separation. The Board therefore must find that the applicant has 
not demonstrated by a preponderance of evidence that his 1970 military separation 
should be changed to a medical disability retirement. 


  



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.




			  
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.  On 3 September 2014, in a memorandum (with attachment), the Secretary of 
Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for 
Correction of Military/Naval Records (BCM/NRs) to carefully consider the revised PTSD 
criteria, detailed medical considerations and mitigating factors when taking action on 
applications from former service members administratively discharged under other than 
honorable conditions (UOTHC) and who have been diagnosed with PTSD by a 
competent mental health professional representing a civilian healthcare provider in 
order to determine if it would be appropriate to upgrade the characterization of the 
applicant's service.

2.  On 24 February 2016, in a memorandum, the Principal Deputy Under Secretary of 
Defense referenced the Secretary of Defense memorandum, issued on 3 September 
2014, pertaining considering discharge upgrade requests by veterans claiming PTSD or 
related conditions, such as Traumatic Brain Injury (TBI).  He instructed BCM/NRs to 
waive, if it is applicable and bars consideration of cases, the imposition of the statute of 
limitation.  He stated that fairness and equity demand, in cases of such magnitude, that 
a veteran's petition receive full and fair review, even if brought outside of the time limit.  
Similarly, cases considered previously either by the DRBs or by the BCM/NRs, but 
without benefit of the application of the Supplemental Guidance, shall be, upon petition, 
granted de novo review utilizing the Supplemental Guidance.

3.  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.

4.  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.

5.  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.

6.  Army Regulation 40-501 (Standards of Medical Fitness), provides standards for 
induction, enlistment, appointment, retention and related policies and procedures.  
Chapter 3 (Medical Fitness Standards for Retention and Separation, Including 
Retirement) sets forth the various medical conditions and physical defects which may 
render a member unfit for further military service.

	a.  Paragraph 3-29, in effect at the time, listed psychoses, recurrent psychotic 
episodes, existing symptoms, or residuals thereof, or a recent history of psychotic 
reaction sufficient to interfere with performance of duty or with social adjustment.

	b.  Paragraph 3-30, in effect at the time, listed psychoneuroses, persistence of 
severity of symptoms sufficient to require frequent hospitalization, or the lack of 
improvement of symptoms by hospitalization, or the necessity for duty in a very 
protected environment.  Incapacity because of neurosis must be distinguished from 
weakness of motivation or underlying personality disorder.

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.

8.  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)	 AR20190007325

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