MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:


         BOARD DATE: 15 AUGUST 2002
         DOCKET NUMBER: AR2002070599


         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. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Ms. Irene N. Wheelwright		Member
Mr. Jose A. Martinez		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 the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

         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: In effect, physical disability retirement or separation.

The applicant states that his lower back injury prior to his induction was further aggravated by a fall while on active duty. His mental problems stemmed from stress while in the Army and the use of medical and pharmaceutical procedures on his person while at Letterman Hospital.

His induction in 1966 had been postponed because of a back injury. The induction board also knew that he did not support the war. He re-injured his back at Fort Polk in a fall and underwent unsuccessful therapy. He experienced psychological problems which were exacerbated by his treatment. He went AWOL, hid out in a canyon, and took LSD, DMT, mescaline, Psilosibin, and marijuana. He was apprehended and eventually transferred to Fort MacArthur and then to the VA in Los Angeles. He was given powerful drugs to combat his near psychosis. He was flown to Travis Air Force Base in a straitjacket and then taken to Letterman General Hospital where he was admitted to a neuropsychiatric ward. While there, he was the object of experimentation by the hospital staff. He was experimented on with LSD and another powerful drug called STP, and one time received electroshock treatment. In March 1967 he was informed that he would be discharged from the Army. He was never given the opportunity to appear before a physical evaluation board, because the mechanism was not in place. The Army violated its own procedures. Subsequent to his discharge he was put on aid to the totally disabled. For only a period of a few years in the 80’s was he able to work, but his physical and mental condition would not allow him to continue to work. He is now receiving SSI and SSD. The Army may not be totally responsible for his medical problems, but did aggravate his physical and mental health problems. His mental health had been fragile, but the illegal and unethical treatment by the Army contributed to the steady decline of his condition over the ensuring years.

PURPOSE: To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

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

The applicant was inducted into the Army on 22 June 1966. His record of induction shows that he had a tendency to have a bad bloody nose, that he injured his right index finger, and that he injured his back in a car accident in September 1965.

A 16 July 1965 report of medical examination shows that the applicant was medically qualified for induction with a physical profile serial of 1 1 1 1 1 1. That report also revealed that he had a long history of fingernail biting, that he had some tension and immaturity, not clearly disqualifying.

The applicant completed basic combat training and in August 1966 was assigned to Fort Polk, Louisiana, for advanced training.

A 21 September 1966 medical record shows that the applicant wanted an appointment with the mental hygiene clinic because he could not stand the green uniform, in that he looked like a tree. He slept poorly. That report indicated that he was sent to the mental hygiene clinic. A 22 September 1966 medical report indicates that the applicant had a schizoid personality.

Medical records shows that the applicant fell in the shower on 25 September 1966 injuring his back. X-rays on his lumbar spine were negative. Medical records on 3, 4, 6, and 7 October 1966 show that he continued to complain of back pain, and that he received physical therapy for his back. Medical reports of 19 and 20 October 1966 show that he was seen for his back complaints.

On 20 October 1966 the applicant received nonjudicial punishment under Article 15, UCMJ, for failure to go to his place of duty.

A 21 October 1966 certificate shows that the applicant was psychiatrically examined on 20 October 1966. That certificate indicates that the applicant was diagnosed as having a schizoid personality, chronic, severe; manifested by unsociability, seclusiveness, serious-mindedness, nomadic, eccentricity, poor judgment, suspiciousness, and poor motivation to remain on active duty. Impairment to further military duty was marked. His condition existed prior to service (EPTS). He was mentally responsible, able to distinguish right from wrong, and to adhere to the right. He had the mental capacity to understand the nature of board proceedings and to cooperate in his own defense. The examining psychiatrist stated that the applicant was psychiatrically cleared for any action deemed appropriate. He stated that the applicant should be separated from the Army because his condition was not amenable to psychiatric treatment in the military, nor was it amenable to retraining, reclassification, reassignment, disciplinary action, or unit support.

The applicant’s DA Form 20 (Enlisted Qualification Record) shows that he was AWOL from 24 October 1966 to 21 December 1966.

A 24 January 1967 psychiatric report from Letterman General Hospital shows that the applicant was admitted to Letterman on 31 December 1966 as a direct transfer from the Army hospital at Fort MacArthur with a transfer diagnosis of acute brain syndrome, possibly secondary to LSD and 3009 – schizophrenia, secondary to diagnosis number 1. He had been admitted there on 22 December 1966 as a direct casualty from leave. From 22 December to 30 December 1966 he had been sick in Sawtell Veterans Administration Hospital and thus absent. His chief complaint on admission was that his back hurt. That report indicated that the applicant denied any recollections for events having to do with his military enlistment, basic training, or activity until he reached Fort MacArthur. Information revealed that he was picked up by civilian police from AWOL and taken to the stockade.

That report provided information concerning his past personal history to include his use of drugs approximately one year prior to his hospitalization. It indicated that the applicant described euphoria with marijuana and hallucinogenic experiences with LSD. Past medical history revealed that he was seen by a private physician for back discomfort and was advised to use a brace and to take certain oral medication.

He was admitted to the VA hospital from the stockade because of alleged desertion on 22 December 1966. Prior to being picked up by civilian police he was driving in the Los Angeles area in a confused state of mind. At the VA hospital he was found to be psychotic and suffering from the effects of LSD. He was discharged to the care of the Army hospital at Fort MacArthur. Mental status evaluation on 30 December 1966 revealed the applicant to be confused, dazed, detached, with a flattened affect, speaking in a barely audible voice only in response to direct questions. He appeared to hallucinate. He was unable to concentrate and was lethargic. He displayed complete amnesia for any fact relevant to his military life with the exception of his two hospitalizations. He was able to deliver a coherent history for all of the events of his life preceding his draft into the Army. The report continued by commenting on his mental status and his course in the hospital. The report stated that because of the complaint of back pain, he was examined and found to have no demonstrable pathological finding, but was treated with Robaxin and a ¾ inch plywood board was placed under his mattress. A telephone conversation with his mother revealed that the applicant had longstanding problems in adjustment stemming from early childhood and having to do somewhat with dissension with the stepfather. At the present time there was complete disharmony in the family. His mother asserted that she was quite willing to take her son back into the family circle and give him another chance to adjust. The report indicated that she was also aware of hallucinogenic drugs all those years from approximately one year prior to entering the service.
The examining psychiatrist diagnosed the applicant as having a schizophrenic reaction, undifferentiated type, chronic, moderate, improved, manifested by flatness of affect, amnesia for stretches of time and life events, looseness of

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associations, hallucinogenic experiences under LSD, ideals of reference, withdrawn and immature behavior, and autism. The examining psychiatrist stated that the applicant had a mental disturbance which apparently began early in his development and was affected by the use of marijuana and LSD for approximately one year prior to entering the service resulting in amnesic episodes for stretches of time and life experiences. His stay in the service was marked by AWOL, insubordination and immature and withdrawn behavior. He was recommended for administrative separation on the basis of schizoid features. Continued military duty would be impossible and he should be medically separated from the Army. The psychiatrist recommended that the applicant be separated under the provisions of Army Regulation 635-40 A & B, Section XII.

A 30 January 1967 report of medical examination indicated that the applicant was not qualified for further military duty with a physical profile serial of 1 1 1 1 1 4. In the report of medical history that the applicant furnished for the examination, he indicated that he had been treated for a back injury, that he received a deferment [from the draft] for a back injury in October 1965, and that he had personality conflicts with teachers. He listed other ailments which he had, or had had. He stated that his health was average.

On 30 January 1967 the applicant requested discharge for physical disability. He stated that he had been notified that, based on preliminary findings, he was considered unfit for retention in the military service because of a physical disability which was considered to have existed prior to June 1966 and which appeared to be not incident to, nor aggravated by, prior or subsequent military service. He certified that it had been fully explained to him that he was entitled to the same processing as any other member of the Army who is separated for physical disability, which includes consideration of his case by a physical evaluation board; however, he did not elect to exercise that right. He certified that it had been fully explained to him that as a result of his application and provided that the approved findings of a medical board corroborate the preliminary findings concerning his unfitness, he might be discharged for physical disability without further hearing. He stated that he understood that such separation would be without disability retirement or disability severance pay; however, it did not preclude his applying for benefits administered by the VA.

Medical Board proceedings of 30 January 1967 determined that the applicant was medically unfit for further military service because of having a schizophrenic reaction, undifferentiated type, chronic, moderate, improved, manifested by flatness of affect, amnesia for stretches of time and life events, looseness of associations, hallucinogenic experiences under LSD, ideas of reference, withdrawn and immature behavior, and autism. His condition was marked for further military duty. He was considered to be mentally competent and had the capacity to understand the nature of and cooperate in board proceedings. He was not a danger to himself or others and could be discharged to his own care. His condition was not in line of duty due to EPTS, the cause was not incident to service, but did exist prior to his entry on active duty. His condition was not aggravated by his active duty. The board recommended that he be separated under the provisions of Army Regulation 635-40 A & B, Section XII. The findings and recommendations of the board were approved on 31 January 1967. The applicant on that same date stated that he had been informed of the approved findings and recommendations of the board.

On 1 March 1967 the recommendation to discharge the applicant was approved. He was discharged on 7 March 1967 under the provisions of Army Regulation 635-40A, paragraph 33. He had 6 months and 17 days of service and 59 days of lost time.

A 3 November 1999 decision from the Social Security Administration concluded that the applicant had been disabled since 1 November 1991, and that he was entitled to a period of disability commencing on that date and to disability insurance benefits.

In a 22 February 2001 letter the Physical Disability Agency informed a Member of Congress (MC) that the applicant’s separation designator code (SPD) indicated that he was separated for physical disability that existed prior to service, that a medical board established the condition, and that the applicant applied for discharge by reason of physical disability. Consequently, the applicant was not entitled to receive disability compensation from the military. It informed the MC that Army Regulation 635-40A referred to separation for physical disability for conditions that existed prior to entry on active service, and that soldiers could request either discharge or elect appearance before a physical evaluation board. It also informed him that Army Regulation 635-40B stated the procedures for his type of disability separation, and that he was processed through what now is chapter 5 of Army Regulation 635-40.

Army Regulation 635-200, currently in effect, 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.

Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

There is no evidence, nor has the applicant provided any, to indicate that his discharge because of a physical disability that existed prior to his entry on active duty was in error or unjust, and as such, there is no basis to correct his record to show physical disability retirement or separation.

DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 7 March 1967, the date of his discharge. The time for the applicant to file a request for correction of any error or injustice expired on 7 March 1970.

The application is dated 8 March 2002 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION: The subject application was not submitted within the time required. The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law. Prior to reaching this determination the Board looked at the applicant’s entire file. It was only after all aspects of his case had been considered and it had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations. Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant’s failure to submit his application within the three-year time limit.

BOARD VOTE:

________ ________ ________ EXCUSE FAILURE TO TIMELY FILE

________ ________ ________ GRANT FORMAL HEARING

__JNS __INW_ __JAM__ CONCUR WITH DETERMINATION

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

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INDEX

CASE ID	AR2002070599
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020815
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.