IN THE CASE OF: BOARD DATE: 22 March 2023 DOCKET NUMBER: AR20220008098 APPLICANT REQUESTS: Reconsideration of his prior denial for upgrade of his under honorable conditions (general) discharge. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Seaman Certification Application * Record of Induction (partial) * Record of Medical History and Examination (Partial) * Psychological Consultation letter (private medical) * Psychological Consultation Sheet (military) * Medical treatment record (2) * Request for Elimination with 3 witness statements * DD Form 214 (Report of Separation from Active Duty) * Board of Veterans Appeals (BVA) decisional document * Department of Veterans Affairs (VA) disability rating decision FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20180006604 on 14 July 2020. 2. The documents submitted by the applicant, with the exception of the BVA and VA Rating decisions, were previously submitted and considered by the Board. 3. The applicant states he was wrongfully discharged with a general discharge. He was deliberately put out as a behavior problem when he in fact was suffering from a mental health disorder crisis. His chain of command failed to follow regulations related to induction of persons with mental health issues. 4. The applicant’s complete military service record is not available for review and was possibly destroyed or lost in the National Personnel Records Center (NPRC) fire in 1973. 5. Prior to service the applicant was serving in the Merchant Marines as a Seaman. His record shows he received a psychiatric evaluation and treatment for either an Adjustment Reaction of Adult Life or Simple or Paranoid Schizophrenia. The records also indicate he was denied voluntary enlistment due to the mental health issues. 6. An Army doctor reviewed his records and examined him on 13 June 1969, determining that his psychotic reactions would preclude him from serving in the military and he said he would not recommend him for duty. 7. The applicant was inducted into the Army of the United States on 4 September 1969, for a 2-year term of service. 8. On 18 September 1969, a Mental Hygiene Consultation found that with approximately two weeks of active duty, he was referred for psychiatric evaluation with a documented history of previous psychiatric treatment. His diagnosis was adjustment reaction, but there was a serious suspicion that he might have a more serious psychiatric condition. After considering the past personal history and the current mental status, the diagnosis was Schizoid personality, chronic, severe with paranoid features; manifested by suspiciousness, aloofness, inappropriate affect, mannerisms, grimaces, and inconsistent behavior. The recommendation was that he was not mentally ill. However, he did manifest a severe borderline personality disorder. Consequently, it was the opinion of the examiner that he be separated from service as quickly as possible. 9. On 25 September 1969, the applicant's immediate commander notified him of his intent to initiate separation actions against him under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability), paragraph 6b(2), by reason of unsuitability. The applicant acknowledged receipt of the separation notification on the same date. 10. The applicant consulted with legal counsel on 25 September 1969 and was advised of the basis for the contemplated separation action, his rights, and election options. He waived his administrative rights and elected not to submit a statement in his behalf. 11. The applicant's immediate commander formally recommended the applicant's discharge, under the provisions of Army Regulation 635-212, paragraph 6b, by reason of unsuitability. As the specific reason, the commander noted the applicant displayed a complete inability to adjust to military life. With his severe borderline personality disorder, he can't respond to the simplest order and becomes highly confused and upset. It was the unanimous conclusion of training Cadre that he would remain unproductive. 12. The separation authority approved the recommended discharge on 28 October 1969, under the provisions of Army Regulation 635-212, and directed the issuance of a DD Form 257A (General Discharge Certificate). 13. The applicant was discharged on 10 November 1969. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-212 with Separation Program Number 264 (Unsuitability, Character and Behavioral Disorders). His service was characterized as under honorable conditions (general). He was credited with 2 months and 7 days of net active service and was not awarded a military occupational specialty. 14. The applicant petitioned the ABCMR on 23 January 2018 for upgrade of his discharge to honorable, due to physical disability. In the processing of the case, the Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military records, stating: The applicant's hard copy military medical records were not available for review. His separation records indicate he was evaluated on 18 September 1969 (two weeks into basic training) due to difficulty in training. He was diagnosed with Schizoid Personality Disorder with paranoid features. There is also documentation prior to his enlistment recommending against enlistment due to his psychological issues. A review of the VA’s Joint Legacy Viewer indicates he does not have a service-connected disability rating. In accordance with the 3 September 2014, Secretary of Defense Liberal Guidance Memorandum and the 25 August 2017, Clarifying Guidance there is documentation to support a behavioral health condition at the time of the applicant's discharge. His condition was not a medically boardable condition and preexisted his military service. Administrative separation was appropriate and medical disability/retirement is not warranted. 15. On 14 July 2020, the Board agreed with the medical advisory opinion and denied the applicant's request for relief. 16. The applicant provides: a. A BVA decisional document, dated 20 December 2021, that shows he was granted service connection for an acquired psychiatric disorder, to include schizophrenia and post-traumatic stress disorder (PTSD). b. A VA rating decision, date 23 December 2021, which shows a 70 percent disability rating for unspecified schizophrenia spectrum and other psychotic disorder (previously rated as PTSD). 17. In reaching its determination, the Board can consider the applicant’s petition, his arguments and assertions, and his service record in accordance with the published equity, injustice, or clemency guidance. 18. MEDICAL REVIEW: The Army Review Boards Agency (ARBA) Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and the Interactive Personnel Electronic Records Management System (iPERMS). The ARBA Medical Advisor made the following findings and recommendations: a. The applicant is again applying to the ABCMR requesting a change in the reason for his discharge and a discharge upgrade. He states: “The injustice in my service record is the company commander and medical/mental health personnel at the Ft. Polk Academy wrongfully separated me by determining the character of my discharge as “Under Honorable Conditions.” They deliberately chose to put me out as a behavior problem. In actuality, I was having a crisis from a mental health disorder.” b. The Record of Proceedings and prior denial detail the applicant’s military service and the circumstances of the case. The applicant’s DD 214 shows he entered the regular Army on 4 September 1969 and received an under honorable conditions discharge on 19 November 1969 under the provisions provided in AR 635-212, Discharge – Unfitness and Unsuitability (8 November 1966). The separation program number 264 denotes the reason for separation as “Unsuitability, character and behavioral disorders.” c. This request was previously denied in full on 14 July 2020 (AR20180006604). Rather than repeat their findings here, the board is referred to the record of proceedings and medical advisory opinion for that case. d. Because of the period of service under consideration, there are no encounters in AHLTA or documents in iPERMS. e. A 5 May 1969 psychiatric memorandum from a former treating psychiatrist to the Examining Psychiatrist of the Selective Service System in New Orleans, LA: “The above-named requested that I write to you concerning his psychiatric evaluation here. I saw him twice, on July 31, 1968, and on August 23, 1968. He was referred from our General Clinic for fear of “cracking up” during a voyage as a seaman. On interview, he seemed schizoid and paranoid. My impression was “He may be experiencing an Adjustment Reaction to Adult Life,” as he is having new experiences. On the other hand, a Simple or Paranoid Schizophrenia may be arising. As my last contact was almost a year ago, I would suggest that he be re- examined by your staff to ascertain if he is over a transient situational reaction or if he is indeed chronically ill.” f. He was so reexamined when evaluated by another psychiatrist on 13 June 1969 in preparation for possible induction into the Army. The physician stated the applicant was a longshoreman on a ship to Viet Nam when he had the concerns that he was “cracking up”. This psychiatrist opined on a Consultation Sheet (Standard Form 513): “In December 1968, under the stress of shipping out as a seaman, he developed acute and moderately sever anxiety symptoms with some suggestions that he was possible having some psychotic symptoms at the time. He has been symptom free for several months. Although he is well motivated for duty, I feel that the recent severe attack of what was possible a borderline psychotic reaction would preclude his serving in the military at this time. I would not recommend him for duty. However, if he remains symptom free for the next six months, I would reconsider.” g. The applicant was inducted into the Army on 4 September 1969. h. He was evaluated on 18 September 1969 by a psychiatrist at Ft. Polk, LA. The provider noted the applicant’s history of treatment in 1968 and an evaluation in June 1969 at which time the psychiatrist recommended “that he not be accepted into military service until a six-month waiting period had elapsed.” The Ft. Polk psychiatrist noted that he was inducted anyway, and opined the applicant had a chronic, severe, schizoid personality with paranoid features which was not compatible with military service. i. From a counseling session on 23 September 1969: “I have talked to Private {Applicant} and he claims that he has been under doctor’s care before coming into the Army. He does not want to be a solider because he will not follow orders without getting nervous.” j. On 25 September 1969, the applicant’s company commander informed the applicant of his recommendation he be discharged under provisions in paragraph 6b(2) of AR 635-212. Paragraph 6b(2) of AR 635-212: “Character and behavior disorders. As determined by medical authority, character and behavior disorders and disorders of intelligence listed in TB MED 15, except for combat exhaustion (3264) and other acute situational maladjustments (6263).” k. In his 25 September 1969 recommendation for this action to the Commandant of the Fort Polk Academy, the company commander notes no issues of misconduct, stating that while the applicant’s efficiency was “Unsatisfactory”, his conduct was “Satisfactory” with nothing listed under bullet 11 – “Record of other disciplinary action.” l. The 26 September 1969 statement from his platoon leader, 2LT notes the applicant’s behavioral health issues but again there in no mention of misconduct: “I have overseen, supervised, and counseled PVT {Applicant} for the past three weeks. It is my opinion that during this period PVT {Applicant} has demonstrated incapability to perform and react to event the most routine commands and orders … I have personally observed him go into great stress upon receiving the most routine orders; such as, “Parade Rest.” It has been necessary for his instructors at the reading school to place him alone. They say that the presence of the other men would cause such distraction and stress to his studying that he would just not be able to continue functioning with the group. It is my opinion that PVT {Applicant} is unsuited for military service and that to let the EM {enlisted member} remain would not be in the best interests to neither the Army nor PVT Applicant.” m. The company commander’s recommendation was subsequently approved with a general discharge certificate. n. Review of his records in JLV show he has been diagnosed with PTSD and anxiety disorder and received a VA service-connected disability rating for his PTSD. o. It is unknown why the applicant was given less than an Honorable discharge: Neither his company commander nor platoon leader mention any misconduct and there is no evidence of misconduct in the record. p. The applicant was inducted into the Army with known behavioral health issues and against the recommendation of the psychiatrist who examined him less than three months prior to induction. He was then discharged for unsuitability under paragraph 6b(2) of AR 635-212 - Character and behavior disorders - for a condition he did not have adequate control over but was receiving treatment (Stelazine, an anti-psychotic medication). q. It is the opinion of the ARBA medical advisor that a discharge upgrade to Honorable is clearly warranted. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation, and published Department of Defense guidance for liberal and clemency determinations requests for upgrade of his characterization of service. Upon review of the applicant’s petition, available military records and medical review, the Board considered the advising official finding for a discharge upgrade. However, the Board determined the applicant was still in his initial entry phase and served 2 months and 7 days of net active service and was not awarded a military occupational specialty. Based upon regulatory guidance that a separation will be described as an entry-level separation, with service uncharacterized, if the separation action is initiated while a Soldier is in entry-level status. 2. Evidence shows the was inducted into the Army with known behavioral health issues and against the recommendation of the psychiatrist who examined him less than three months prior to induction. The Board agreed with the medical review there is sufficient evidence that indicates the applicant’s condition was not boardable and this it existed prior to service. The Board determined there was insufficient evidence that an administrative discharge upgrade was warranted based on regulatory guidance and the preponderance of evidence. The Board found the applicant was discharge with a general discharge and was appropriate based on the applicant’s condition. Based on preponderance of evidence, the Board found there is insufficient evidence to amend the previous Board’s decision and denied relief. 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 Board found 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 to amend the decision of the ABCMR set forth in Docket Number AR20180006604 on 14 July 2020. 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, U.S. Code, Section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by ARBA is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 2. Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), then in effect, provided the criteria governing the issuance of honorable, general, and undesirable discharge certificates. Paragraph 1-9d provided that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate. 3. Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability. It stated an individual was subject to separation for unsuitability. It stated action was to be taken to discharge an individual for unsuitability when, in the commander's opinion, it was clearly established that: the individual was unlikely to develop sufficiently to participate in further military training and/or become a satisfactory Soldier or the individual's psychiatric or physical condition was such as to not warrant discharge for disability. Unsuitability included inaptitude, character and behavior disorders, disorders of intelligence and transient personality disorders due to acute or special stress, apathy, defective attitude, and inability to expend effort constructively, enuresis, chronic alcoholism, and homosexuality. Evaluation by a medical officer was required and, when psychiatric indications are involved, the medical officer must be a psychiatrist, if one was available. A general or honorable discharge was considered appropriate. 4. Army Regulation 635-200, which superseded Army Regulation 635-212, was revised on 1 December 1976, following settlement of a civil suit. Thereafter, the type of discharge and the character of service were to be determined solely by the individual's military record during the current enlistment. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NR) on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the court-martial forum. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont.) AR20220008098 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1