RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          22 March 2005
      DOCKET NUMBER:  AR20040004366


      I certify that hereinafter is recorded the true and complete record
of the proceedings 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 L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Thomas D. Howard              |     |Chairperson          |
|     |Mr. Robert J. Osborn              |     |Member               |
|     |Mr. James B. Gunlicks             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his records be corrected to show that his
disability did not exist prior to service (EPTS), that it was service
aggravated, and, in effect, that he be granted a medical retirement with a
100 percent disability rating.

2.  The applicant defers to counsel.

3.  The applicant provides his induction physical; copies of his service
medical records; his Medical Evaluation Board (MEB) and Physical Evaluation
Board (PEB) proceedings; his separation orders; a letter from Doctor C___
dated        10 June 2003; a letter from the Department of Veterans Affairs
(VA) dated 8 May 2003; a declaration from the applicant dated 24 June 2004;
a letter from the applicant's brother dated 5 January 2004; and a court
order dated 8 October 1998 changing the applicant's name.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in addition, that the applicant's records be
corrected to show he was placed on the Temporary Disability Retired List
(TDRL).

2.  Counsel states that the applicant was inducted into the Army in the
summer of 1967.  At that time, he had no psychiatric diagnoses although he
had been treated for antisocial behavior in 1965.  After reviewing his
medical records, the Army accepted him for induction.  He completed
training without any psychiatric incidents.

3.  Counsel also states that, while standing guard duty on 24 April 1968,
the applicant was confronted by a group of black soldiers.  One of them
accused him of being a racist.  A fight broke out and the applicant had to
be treated for several injuries including a broken nose and a dislocated
left ring finger.  He was very upset about the fight.  He became
increasingly anxious and had difficulty completing some mental tasks.  On
29 April 1968, he was diagnosed as slightly paranoid.  On 4 May 1968, he
was hospitalized for an acute schizophrenic episode.  On 11 July 1968, a
military psychiatrist determined that he had no psychiatric diagnoses or
psychotic episodes before entering the service but had an acute
schizophrenic reaction after entering the service.

4.  Counsel also states that an MEB found he was unfit by reason of a
schizophrenic reaction that originated in April 1968.  However, the PEB
found that he entered the service with a long history of hospitalizations
for psychiatric disturbances and schizoid traits and found his condition to
be EPTS, not service aggravated.  He has been hospitalized since 1968.  In
2003, two psychiatrists determined that the applicant was not psychotic or
schizophrenic prior to service and that the antisocial personality disorder
noted prior to his enlistment is not the same as a diagnosis of
schizophrenia.

5.  Counsel further states that the PEB's finding that the applicant had a
long history of hospitalizations for psychiatric disturbances and schizoid
traits is not supported by the applicant's records.  While he had symptoms
of depression, he needed only occasional medication to sleep.  He did not
display schizoid traits.  He was diagnosed with an antisocial personality
disorder after he ran away from a foster home, not a psychosis.  The PEB's
action was arbitrary, capricious, contrary to law, and is not supported by
substantial evidence and did not resolve the conflict with the MEB's
finding that his schizophrenia originated in April 1968 and was not EPTS.
The applicant has continued to require psychiatric care almost continuously
since his discharge from the Army.  It is clear that he was    100 percent
disabled before he was discharged from the Army.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 27 November 1968.  The application submitted in this case is
dated 12 July 2004.

2.  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.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant was born on 2 May 1948.  He had been admitted to
Metropolitan State Hospital, Norwalk, CA on 17 March 1967 and discharged on
11 April 1967.  The discharge document indicated he had three previous
admissions since 1965.  It indicated he had a long juvenile delinquency
record, emotional instability, restlessness, acting out and manipulations.
No evidence of mental illness was seen.  He came back to the hospital
because he had no place to stay.  He was diagnosed with personality trait
disturbance, emotionally unstable personality (with schizoid traits).  His
present condition was described as improved.  He had no psychosis or
neurosis.  He was unreliable, immature, very impulsive, conniving and
manipulating everybody.  He was possibly a sociopath – lazy and disliked
work.  He was discharged as not psychotic.
4.  The applicant was a volunteer for induction.  His pre-induction
physical examination indicated a neuro-psychiatric consultation was
obtained.  He was cleared for induction and was inducted into the Army on
20 September 1967.

5.  On 16 November 1967, the applicant accepted nonjudicial punishment
(NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for leaving
the company area to which all trainees were restricted and proceeding to
the post exchange without permission.

6.  On 7 February 1968, the applicant accepted NJP under Article 15, UCMJ
for failing to obey a lawful order of a nocommissioned officer.

7.  On 17 February 1968, the applicant accepted NJP under Article 15, UCMJ
for assaulting a squad leader.

8.  On 19 February 1968, the applicant's commander referred him to Mental
Hygiene Consultation Service at the applicant's request for psychiatric
assistance to resolve emotional problems.  On 27 February 1968, the
applicant was psychiatrically evaluated.  The evaluating psychiatrist
commented that the applicant had a strong proclivity for impulsive
aggressive behavior.  If channeled into the proper situation, the applicant
could no doubt be an asset to the Army.  It was just as probable, however,
to expect that his behavior would explode in a situation where it was not
appropriate.  He was given a psychiatric diagnosis of anti-social
personality.

9.  On 8 March 1968, the applicant accepted NJP under Article 15, UCMJ for
wrongfully misappropriating a can of peaches from the unit mess hall.

10.  On 24 April 1968, the applicant was treated for injuries incurred in a
fight.  On 29 April 1968, he was treated for an acute anxiety reaction and
slight paranoia.  On 5 July 1968, he was admitted to the neuropsychiatric
section of Letterman General Hospital.

11.  The MEB Narrative Summary related the applicant's military history as
volunteering "to beat the draft" and going to Airborne training but
quitting after one week, saying he "was afraid of heights" and he "could
not take the harassment of other Soldiers."  It related his past history as
being the third oldest of nine siblings and the "black sheep" of the
family.  His mother was described as a very abrupt person who became very
cruel when angry.  At one time she pushed him out of a car when he was 16
merely because she became angry at him.  He was never able to get along
with others and always got involved in other activities than school.  He
denied a history of homicidal acts and stated the knife cutting incident in
the present illness was only an accident.  At only one time did he make a
suicide attempt, when he cut his wrist superficially, mainly "to get
attention because he was told he was getting out of the service."  After
three days in the hospital he was relatively stable.  He continued to have
difficulty keeping ward rules and several times was found sniffing glue or
attempting to sniff glue.

12.  The MEB Narrative Summary listed the applicant's diagnosis as
schizophrenic reaction, undifferentiated type, acute, severe, unchanged;
severe predisposition, previous history of hospitalizations for antisocial
behavior; and marked impairment.  It commented that he had had previous
hospitalizations in civilian life for antisocial behavior but no
psychiatric diagnoses.  On August 1968, the MEB determined the condition's
approximate date of origin to be April 1968, to be incident to service, not
to be EPTS, and not to have been aggravated by active duty.  It found the
applicant to be mentally competent for pay purposes and to have the
capacity to understand the nature of and cooperate in board proceedings.
He was referred to a PEB.

13.  On 23 August 1968, an informal PEB found the applicant to be unfit due
to schizophrenic reaction, chronic undifferentiated type.  The PEB noted
that the applicant entered the Army with a long documented history of
hospitalizations for psychiatric disturbances and schizoid traits.  In the
absence of abnormal stress, the PEB found his condition to be not in line
of duty, EPTS, and not service aggravated.  The PEB recommended he be
separated without entitlement to disability benefits.  On 28 August 1968,
the applicant concurred with the findings of the PEB and waived a formal
hearing of his case.

14.  On 27 November 1968, the applicant was discharged due to physical
disability without severance pay.

15.  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 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 purpose of his employment on active duty.
According to accepted medical principles, certain abnormalities and
residual conditions exist that, when discovered, lead to the conclusion
that they must have existed or have started before the individual entered
the military service.  Likewise, manifestation of lesions or symptoms of
chronic disease from date of entry on active military service (or so close
to that date of entry that the disease could not have started in so short a
period) will be accepted as proof that the disease existed prior to
entrance into active military service.

16.  Army Regulation 635-40 also prescribes the function of the TDRL.  The
TDRL is used in the nature of a “pending list.”  It provides a safeguard
for the Government against permanently retiring a Soldier who can later
fully recover, or nearly recover, from the disability causing him or her to
be unfit.  Conversely, the TDRL safeguards the Soldier from being
permanently retired with a condition that may reasonably be expected to
develop into a more serious permanent disability. A Soldier who is
determined to be physically fit will not be placed on the TDRL regardless
of the severity of the physical defects or the fact that they might become
unfitting were the Soldier to remain on active duty for a period of time.
A Soldier's name may be placed on the TDRL when it is determined that the
Soldier is qualified for disability retirement but for the fact that his or
her disability is determined not to be of a permanent nature and stable.

17.  The Diagnostic and Statistical Manual of Mental Disorders (DMSM),
fourth edition states that the onset of schizophrenia may be abrupt or
insidious.  Family members may find this behavior difficult to interpret
and assume that the person is “going through a phase.”  Characteristic
symptoms fall into two broad categories – positive and negative.  Positive
symptoms include grossly disorganized behavior that may manifest itself in
a variety of ways including unpredictable agitation.  Problems may be noted
in any form of goal-directed behavior.  The person may display
unpredictable and untriggered agitation (e.g. shouting or swearing).  A few
instances of angry or agitated behavior should not be considered to be
evidence of Schizophrenia.

18.  The DMSM goes on to state that negative symptoms are difficult to
evaluate. The negative symptom of avolition is characterized by an
inability to initiate and persist in goal-directed activities and the
showing of little interest in participating in work or social activities.
Criterion A for schizophrenia requires that at least two of the five items
(i.e., delusions, hallucinations, disorganized speech, grossly disorganized
or catatonic behavior, and negative symptoms) be present concurrently for
much of at least 1 month.  Schizophrenia also involves dysfunction in one
or more major areas of functioning (Criterion B, e.g. interpersonal
relations, work or education, or self-care).  Some signs of the disturbance
must persist for a continuous period of at least 6 months (Criterion C).
Prodomal symptoms are often present prior to the active phase.

DISCUSSION AND CONCLUSIONS:

1.  The Board acknowledges that the applicant had never been diagnosed with
schizophrenia prior to his induction despite his numerous hospitalizations
and acknowledges that the Army, after reviewing his civilian medical
history, accepted him for induction.

2.  Nevertheless, the DMSM acknowledges that schizophrenia is difficult to
diagnose.  The applicant's civilian medical history indicated the applicant
manifested at least some negative symptoms of schizophrenia prior to his
induction (dysfunctional interpersonal relations and work or education).
Very shortly after his induction he began to manifest some of the positive
symptoms of schizophrenia (grossly disorganized behavior manifested by
problems with goal-directed behavior (inability to complete Airborne
training) and displaying more than a few instances of unpredictable and
untriggered agitation (such as assaulting a squad leader and disobeying
orders).  These symptoms were displayed well before the April 1968
incident.

3.  The Board acknowledges that, in 2003, two psychiatrists determined that
the antisocial personality disorder diagnosed prior to the applicant's
induction is not the same as a diagnosis of schizophrenia.

4.  However, it appears that the PEB (notwithstanding the findings of the
MEB) evaluated the applicant's entire medical history in terms of the
criteria (Criterion  A -- positive and negative symptoms; Criterion B –
social/occupational dysfunction; and Criterion C – duration) the DMSM
requires for a diagnosis of schizophrenia, determined that his civilian
diagnoses were evidence of prodomal symptoms present prior to the active
phase of the condition, and determined that he had schizophrenia prior to
entering the service.

5.  Therefore, the applicant was not eligible for a medical retirement and
thus not eligible for placement on the TDRL.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 27 November 1968; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on    26 November 1968.  However, the applicant did not
file within the 3-year statute of limitations and has not provided a
compelling explanation or evidence to show that it would be in the interest
of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__tdh___  __rjo___  __jbg___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            __Thomas D. Howard____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040004366                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050322                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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