MEMORANDUM OF CONSIDERATION


IN THE CASE OF:
        

BOARD DATE: 18 September 2001
DOCKET NUMBER: AR2001055248

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Gerald E. Vandenberg		Analyst

The following members, a quorum, were present:

Ms. JoAnn H. Langston		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Karen A. Heinz		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

APPLICANT REQUESTS: Reconsideration of his application to correct his records by changing the narrative reason for his discharge to medical.

APPLICANT STATES: In effect, the military’s diagnosis of a personality disorder is incorrect. He states that the symptoms he was exhibiting on active duty that lead to his discharge were due to an acquired psychological or psychiatric condition or manifestations of his Tourette’s Syndrome. He states that the Department of Veterans Affairs (VA) has granted him service connection for these conditions thereby showing he had them on active duty.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum of consideration (MOC) prepared to reflect the Board's previous consideration of the case (AR2000046105) on 1 February 2001.

The applicant submits extensive records that include parts of his military personnel records, his service medical records and his post-service VA records. Additionally, he submits copies of actions taken by the Court of Veterans Appeals (COVA), the VA‘s Board of Veterans Appeals (BVA) decisions and three Social Security Administration (SSA) letters.

These documents were received after the Board’s prior review without a written request for additional review. The staff of the Board has determined that these records constitute a submission of substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision therefore, they require referral to the Board for review.

The SSA letters, dated April 13, 15 and 18, 1986, show that the applicant was found to be disabled and entitled to benefits under their regulations as of 15 January 1986.

The COVA decision remanded the applicant’s case to the BVA for additional development on the issue of the service connection for an acquired psychiatric condition. This remand was further remanded to the VA regional office for the required development. The VA’s 12 January 1994 decision to grant service connection for schizophrenia was available for this Board’s original consideration of the case.

As noted in the prior review, the applicant’s records show that he entered active duty on 21 April 1976. He received nonjudicial punishment on two occasions, first for possession of marijuana and then two months later for operating a privately owned vehicle (POV), overseas, without a valid military driver’s license, operating a POV without a valid vehicle registration and theft of a government


license plate for a privately owned vehicle. Copies of two enlisted evaluations were submitted, both covering periods in 1978. These describe the applicant as a good or outstanding soldier with high potential.

The applicant’s military medical records show that he was seen on several occasions for respiratory complaints, lower extremity pain and similar conditions. He was first seen for a complaint of a “nervous“ or mental condition on 29 October 1979. He was referred to outpatient psychiatry for evaluation of his complaints of being nervous and “hyper”. A 5 November 1979 Report of Mental Status Evaluation (Statement) states that the applicant was seen by the Chief of Psychiatry and was diagnosed as having an inadequate personality disorder with manifestations of suicidal and homicidal ideations, very poor stress tolerance and a poor general adjustment to the military. The doctor found that the applicant was psychiatrically cleared for any administrative actions and he recommended an expeditious discharge. Follow-up treatment records indicate that the applicant was given Haldol for this condition.

On 26 November 1979 the applicant’s commander initiated separation action for unsuitability due to personality disorder. After consultation with counsel the applicant waived his administrative rights to submit a statement on his own behalf, to have a hearing before a board of officers, and to be represented by counsel.

As a part of his discharge processing the applicant was given a mental status evaluation on 4 December 1979. The medical officer conducting the evaluation described him as having a depressed mood but found that he was mentally responsible, that he was able to distinguish between right and wrong and to adhere to the right and that he had the mental capacity to understand and participate in any administrative proceeding.

The separation authority accepted the recommendation for discharge and the applicant was discharged on 8 January 1980. He received an honorable discharge with a narrative reason of unsuitability due to personality disorder.

Although the applicant’s VA records report the diagnoses and treatment for drug and alcohol abuse and Tourette’s syndrome commencing in 1980 or 1981, there is currently no available evidence of any treatment prior to 1984.

During a March 1984 hospitalization the applicant was treated for multiple medical conditions and afforded a provisional diagnosis of schizophrenia. He was again hospitalized in August 1984 with the diagnoses of and treatment for episodic Tourette’s syndrome, alcohol abuse, and “schizotypcal personality disorder”.


In November 1985, the applicant was hospitalized, by a court order, following his third “drunk driving” charge. The diagnoses at that time were that the applicant was suffering from alcohol abuse, Tourette’s syndrome and a schizotypal personality disorder. Later in this hospitalization he was afforded a diagnosis of possible schizophreniform disorder and was shown to have been using drugs and abusing alcohol regularly up until three weeks prior to the admission. Towards the end of this hospitalization (14 January 1986) the applicant was diagnosed as suffering from paranoid schizophrenia. The 3 December 1985 psychological consultation sheet shows that the applicant reported an 8-9 year history of schizophrenic type behavior. The psychologist evaluating him reports that he was demonstrating symptoms of an antisocial personality and schizophrenia.

In the subsequent years the applicant has been hospitalized on numerous occasions without a consistent diagnosis. The applicant’s condition has been reported as schizotypal personality disorder (8/84), schizoaffective disorder (8/84, 5/85,11/85,7/86, 2/87, 7/87, 10/87, 7/88, 7/89, 9/90, 7/91, 4/94, 11/95 schizophreniform disorder (6/87) and schizophrenia (3/84, 3/92, 10/92, 11/95, 12/96, 4/97, 8/2000). These variations apparently depended on the manifestations he was exhibiting and the person doing the evaluation. Further, several of the hospitalization summaries noted that the applicant also has an ongoing history of problems coping with the manifestations of and medication for his Tourette’s syndrome as well as being a drug and alcohol abuser that is interwoven with his mental condition. The August 2000 hospital summery reports that the applicant is cannabis dependent.

In a 1989 statement the applicant’s attending psychiatrist opined that the applicant’s Tourette’s syndrome had its onset in 1977. He indicated that a statement from a fellow soldier, describing the manifestations that he had personally observed, and the fact that the applicant was on Haldol, a medication commonly used for treatment of Tourette’s, supported this opinion. The psychiatrist further offered that the diagnosis of a personality disorder while on active duty was a “prodorme” (a symptom indicative of an approaching disease) of his current paranoid schizophrenia.

The applicant also had two private psychological evaluations in 1992. One rendered the diagnosis of a bipolar disorder superimposed on an avoidant-dependent personality disorder and the other that he had a schizoaffective disorder.

In 1994, the VA ultimately granted the applicant service connection for Tourette’s Syndrome and schizophrenia.

Army Regulation 40-501 provides medical fitness standards for retention and separation, including retirement. Chapter 3 provides the various medical conditions and physical defects that render individuals unfit for further service. Personality disorders may render individuals administratively unfit rather than unfit due to physical disability. Interference with effective performance of duty in association with these conditions is to be dealt with through appropriate administrative channels.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 5-13 establishes policy and prescribes procedures for separating members for personality disorder (not amounting to a disability under Army Regulation 635-40), a deeply-ingrained maladaptive pattern of behavior which interferes with the individual's ability to perform. Separation under this paragraph may not be used in lieu of disciplinary action solely to spare a soldier who has committed serious acts of misconduct. An honorable discharge is issued unless an entry-level separation is required.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR. It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration. The staff of the Board is authorized to determine whether or not such evidence had been submitted.

The regulation provides further guidance for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case. In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision. If the staff finds such evidence, the case will be resubmitted to the Board. If no such evidence is found, the application will be returned without action.

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

1. The applicant was seen and treated for manifestations that could be related of a mental condition only at the end of his period of service by the chief of psychiatry at Ft. Polk, Louisiana. He diagnosed the applicant as having a personality disorder that interfered with his ability to serve. This diagnosis was continued during the ensuing years by several VA psychiatrists who indicate that the applicant had a personality disorder as late as 1995, a year after the VA granted him service connection.

2. Further, although a VA psychiatrist indicated that the applicant had the onset of his Tourette’s syndrome in 1977 there is no indication of any symptoms of this condition in the applicant’s service personnel or medical records. The doctor’s statement that the prescription for Haldol was given to the applicant for control of Tourette’s is incorrect. This prescription was given the applicant in concert with his complaints of nervousness in 1979 not as a treatment for Tourette’s.

3. In this same statement the VA doctor opined that the diagnosis of a personality disorder by the military was a forerunner or prodrome to the subsequent development of schizophrenia. The Board concludes that to say that the original diagnosis made by the military doctor was incorrect, because it was later determined that it may have been a prodrome, does not invalidate that original diagnosis. A finding that a person exhibited a symptom that later evolved into an active condition does not invalidate the original diagnosis.

4. The VA has both the authority and the requirement to use a liberal interpretation of evidence to determine if a connection exists between a current diagnosis and a symptom that existed during the applicant’s period of service. In this case the VA’s liberal interpretation used hindsight and history to develop a connection between the applicant’s current condition and the original diagnosis. Both diagnoses are valid.

5. The applicant has submitted no evidence to show that he was manifesting symptoms of, had a diagnosis of, or was treated for any physical, mental or psychological condition that would have warranted referral for a medical evaluation.

6. The overall merits of the case, including the latest submissions and arguments, are insufficient as a basis for the Board to reverse its previous decision.

7. 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

__JHL___ __MHM__ ___KAH_ DENY APPLICATION




         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

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INDEX

CASE ID	AR2001055248
SUFFIX
RECON
DATE BOARDED	20010918
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.01
2.
3.
4.
5.
6.