MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 28 August 2001
         DOCKET NUMBER: AR2001058341

         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
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Richard T. Dunbar		Member
Mr. Donald P. Hupman, Jr.		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)

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APPLICANT REQUESTS: That his discharge be changed to a medical discharge.

APPLICANT STATES: The applicant defers to counsel.

COUNSEL CONTENDS: That the applicant is 100 percent disabled. He is on anti-psychotic and anti-anxiety medication for his social phobia and agoraphobia. Much of this stems from service-related trauma. He went absent without leave (AWOL) because he did not want to go to Vietnam and was traumatized by the fact that he might have to go to war and be killed. He was severely handicapped even before then from years of sniffing glue. Counsel is surprised the Army even took him as an enlistee. While the applicant was AWOL, he was in a fight and was stabbed. He was then picked up by the military police and did not receive proper medical treatment. Army doctors stated he had a type of “conversion” disorder which left him paralyzed. Because of the paralysis and his emotional inability (to function in the Army), it was recommended he be separated as soon as possible. As shown in one of the enclosures, General H___ L. R___ recommended a medical discharge. He wrote it right above the typed words “a General.” She provides the recommendation for discharge; the first page of Special Court-Martial Order Number 312; his Report of Medical History, SF Form 93, dated 18 October 1971; and a seven-page neuropsychological assessment dated 16 March 2000 as supporting evidence.

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

He was inducted into the Army on 3 December 1969. His Record of Induction, DD Form 47, indicates “none claimed” in the item 16a, defects and diseases claimed by the registrant. His Statement of Personal History, DD Form 398, indicates “no” in item 19, whether there were any incidents in his life not elsewhere mentioned which could reflect upon his suitability to perform the duties which he could be called upon to take. He was found qualified for induction. He completed basic training and advanced individual training and was awarded military occupational specialty 94B (Cook).

On 11 December 1970, the applicant was convicted by a special court-martial of being AWOL from 9 May to on or about 30 November 1970. He was sentenced to confinement at hard labor for 3 months, suspended, and to forfeit $50.00 pay for 3 months.

The applicant’s service medical records are not available.

On 19 August 1971, the applicant was convicted by a special court-martial of being AWOL from 5 January to on or about 12 April 1971. He was sentenced to confinement at hard labor for 4 months and to forfeit $80.00 pay for 4 months.

Around October 1971, the applicant’s commander at the U. S. Army Correctional Training Facility recommended the applicant be discharged for unsuitability. He noted that the applicant was emotionally unable to adjust to the regimentation and authoritative structure of the Army. He was suffering from a partially paralyzed right side and arm which prevented him from doing most normal duties. All psychological and neurological tests performed on his paralysis proved negative. His condition was precipitated by being stabbed in the left side. His condition was diagnosed by Army doctors and a consultant from Menningers Clinic as a type of conversion reaction which constituted a real paralysis to the applicant. The commander, Captain H___ L. R___, recommended “a General Discharge Certificate be furnished.” It appears the commander placed his initials above the type of discharge recommended.

On 12 October 1971, a psychiatric evaluation found the applicant to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and to have the mental capacity to understand and participate in board proceedings. He was diagnosed with a severe maladjustment reaction with disabling psychophysiologic effects. No disqualifying mental or physical defects sufficient to warrant disposition through medical channels were found.

On 15 October 1971, the applicant was advised by counsel of the basis for the separation action. He waived consideration of his case by a board of officers, waived personal appearance before such a board, and waived representation by counsel. He did not submit any statements in his own behalf.

On 18 October 1971, the applicant completed a separation physical. His slight paralysis in the right arm was noted. He was found qualified for separation.

The appropriate authority approved the recommendation for separation and directed issuance of a General Discharge Certificate.

On 2 November 1971, the applicant was discharged in pay grade of E-1 under the provisions of Army Regulation 635-212 for unsuitability with a general under honorable conditions discharge. He had completed 9 months and 12 days of creditable active service and had 415 days of lost time.

Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel. The regulation provided, in pertinent part, that members were subject to separation for unsuitability for inaptitude, character and behavior disorders, apathy (lack of appropriate interest), defective attitudes,
and inability to expend effort constructively, alcoholism, and enuresis. A general under honorable conditions characterization of service was normally appropriate.

Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. The regulation defines “physically unfit” as unfitness due to physical disability. The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty. Under the laws governing the Army Physical Disability Evaluation system, soldiers who sustain or aggravate physically unfitting disabilities must meet several line of duty criteria to be eligible to receive retirement and severance pay benefits. The disability must have been incurred or aggravated while the soldier was entitled to basic pay or was the proximate cause of performing active duty or inactive duty training. The disability must not have resulted from the soldier’s intentional misconduct or willful neglect. The disability must not have been incurred during a period of unauthorized absence.

A neuropsychological assessment conducted on 16 March 2000 revealed that the applicant began sniffing glue at about age 12 and later during the 60s “did” toluene, THC, amphetamines, hallucinogens, and alcohol.

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. 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 this requirement.

2. There is no evidence to show that anyone recommended the applicant receive a medical discharge. The document purportedly recommending a medical discharge is signed by Captain R___, who recommended the applicant receive a General Discharge Certificate. It is Captain R___’s initials over the word “General,” not “med.”

3. The applicant’s drug use that may have contributed to his current medical conditions occurred prior to his entry in the service. The evidence of record shows that he did not inform the Army upon his induction that he had ever used drugs or had a drug or alcohol problem. The stabbing that led to his conversion paralysis occurred during a period of time he was AWOL. Neither of these conditions were incurred or aggravated during a time the applicant was entitled to basic pay. Therefore, he was not entitled to a medical separation.

4. 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

__jns___ __rtd___ __dph___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001058341
SUFFIX
RECON
DATE BOARDED	20010828
TYPE OF DISCHARGE	GD
DATE OF DISCHARGE	19711102
DISCHARGE AUTHORITY	AR 635-212
DISCHARGE REASON	A40.00
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.