APPLICANT REQUESTS: That the Army void his honorable discharge of 9 June 1976 and place him on the physical disability retirement list (PDRL) as of that same date.

APPLICANT STATES : That his medical records clearly show that he was hospitalized for a “psychotic break” while on leave from Korea and this should have qualified him for a physical disability retirement.

COUNSEL CONTENDS : That because the VA gave the applicant a service-connected disability rating of 50% shortly after his separation, it is proof that he was similarly disabled while on active duty and should have been placed on the PDRL.

EVIDENCE OF RECORD : The applicant's military records show:

He was born in Tel Aviv, Israel, on 23 October 1949 and grew up in a strict Jewish family in the stressful environment of the Middle East. In 1963/64, his family departed Israel and immigrated to the United States. On 1 August 1967, when he was 17 years old, he enlisted in the United States Marine Corps (USMC). After completing Marine boot camp training, he went to Vietnam where he served approximately 5 months before receiving superficial shrapnel wounds for which he was evacuated to the United States.

While recovering from his wounds, the applicant began to exhibit bizarre behavior by refusing to wear his uniform, obey orders, or salute officers. He was placed in the Psychiatric Ward of the Philadelphia Naval Hospital for evaluation. Diagnosed with an immature personality, a medical board found that his condition existed prior to his service (EPTS) in the USMC and recommended that he be discharged for unsuitability. He was found to be competent and was honorably discharged on 7 August 1968.

As a civilian, the applicant undertook educational pursuits and also got married. However, after a few unsatisfying years of civilian life, he began a series of unsuccessful attempts to join the Army. Realizing that the circumstances of his USMC service worked against his efforts to join the Army, the applicant withheld the information on his USMC service and finally enlisted in the Regular Army for 4 years on 21 January 1974.

After completing all of his required military training, the applicant was assigned to a unit at Fort Knox, Kentucky, with duty as an infantryman. In February 1975, he applied for admission to Officer Candidate School (OCS) and was accepted and sent to Fort Benning, Georgia, for training. The applicant did not complete OCS and was relieved in his 14th week because of substandard scholastic and leadership scores. He was returned to enlisted duty in the rank of sergeant (E-5).

Reassigned to Korea, the applicant served as an infantryman in the 2nd Infantry Division from December 1975. While in Korea, he was observed by the Division psychiatrist for “progressively severe emotional problems.” In April 1976, he returned to the United States on ordinary leave. While on leave, he reported to Madigan Army Medical Center, Tacoma, Washington, complaining of psychological problems. He was admitted, given a psychological evaluation on 5 May 1976, and diagnosed with chronic, undifferentiated, schizophrenia (EPTS).

The Army terminated the applicant’s tour of duty in Korea. He was given a medical evaluation board (MEB) that found him medically disqualified for retention and recommended his separation under the provisions of Army Regulation (AR) 635-40. Following a course of treatment, he was processed for a physical disability separation and honorably discharged on 9 June 1976 under the provisions of chapter 5, AR 635-40, Personnel Separations, Physical Evaluations for Retention, Retirement, or Separation. He had 2 years, 4 months, and 19 days of creditable active Army service and was erroneously credited with 2 years and 6 days of prior service in the USMC.

On 19 September 1978, the applicant received a special psychiatric evaluation from the VA which confirmed the Army’s diagnosis of chronic, undifferentiated schizophrenia. These evaluations continued every 2 years and reconfirmed the original diagnosis, the fact that the applicant was competent, and the need for the applicant to take tranquilizers (thorazine) on a daily basis. During an evaluation on 20 April 1988, the VA, noting the presence of combat stressors and significant childhood stressors [emphasis added], included the diagnosis of Post Traumatic Stress Disorder (PTSD).

In the processing of this case, staff advisory opinions (COPIES ATTACHED) were obtained from the Office of The Surgeon General’s (OTSG) psychiatry consultant and the US Army Physical Disability Agency (USAPDA). The OTSG, while acknowledging that the applicant suffered from a psychiatric disturbance prior to his enlistment in the Army, opined that there was no proof that the disturbance was schizophrenia, and offered that it may have been PTSD from his USMC experience in Vietnam. The OTSG psychiatry consultant recommended the applicant be given a physical evaluation board.

The USAPDA advisory opinion took issue with the OTSG opinion, stating that PTSD did not even become a recognized diagnosis until 1980 and that “the ‘possibility’ of an incorrect diagnosis, opined some 20 years later, does not appear to . . . overcome the presumptions of regularity and proper administrative procedures accomplished upon the applicant’s separation in 1976.” The USAPDA stated that the essential determination to be made is not the label placed on the applicant’s illness, but whether he received due process at separation in 1976. They concluded that the recommendation for separation processing in accordance with chapter 5, AR 635-40 was appropriate.

DISCUSSION : Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinions, it is concluded:

1. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy the aforementioned requirement

2. The applicant purposely withheld from his Army recruiter certain information about a well documented, pre-existing psychiatric condition. This information, had it been known, would have effectively disqualified him from enlistment (as it did each time he previously informed Army recruiters in his failed attempts to enlist). His failure to disclose the information constituted a fraud and resulted in a fraudulent enlistment. It is a principle of equity law that a person whose petition for relief is based upon a fraud has no right in equity. But for his fraudulent act, the applicant would not have been in a position to request a physical disability retirement, thus he is not entitled to the requested relief.

3. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION : The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE :

GRANT

GRANT FORMAL HEARING

RVO EPV SAC DENY APPLICATION




                                                      Karl F. Schneider
                                                      Acting Director