IN THE CASE OF:	  

		BOARD DATE:	        02 December 2008

		DOCKET NUMBER:  AR20080013425 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his honorable discharge of 12 January 1970 be changed to a medical discharge.

2.  The applicant also requests that the Vietnam Campaign Medal with Device (1960) and the Vietnam Service Medal be added to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), and that his date of rank (DOR) to private first class/E-3 be entered in item 6 (DOR).  The applicant submitted a second DA Form 149 (Application for Correction of Military Record) to the Board requesting that these awards be added to his DD Form 214 and that his DOR be changed.  That application was accepted under ABCMR Docket Number AR20080008948 and will he handled by a separate Record of Proceedings.  Therefore, these issues will not be addressed further in these proceedings.

3.  The applicant states, in effect, that he was taking medications for his condition which included Donnatal, Darvon and Librium.  He also had foot and back injuries.  His judgment was clouded at the time, resulting in the incident which led to his discharge.

4.  The applicant provides a letter from a retired major who indicates he treated the applicant in October 1969; a statement from the Department of Veterans Affairs (DVA) Medical Center, Washington, D.C., dated 19 April 1991, stating that the applicant sustained injuries to both feet in the Republic of Vietnam (RVN); and copies of various service medical treatment records.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The evidence of record shows that the applicant was inducted into the Army of the United States on 16 September 1964.  After serving only 1 month and 7 days, he was discharged under the provisions of Army Regulation 635-209 (Unsuitability) by reason of unsuitability – character and behavior disorder.  He was diagnosed with an inadequate personality, chronic, severe, manifested by inability to adapt to military training, substandard intelligence, and moderately impaired insight and judgment.  His initial DD Form 214 showed his service was characterized as general, under honorable conditions.  He was assigned a reentry eligibility (RE) code of RE-3.

3.  In April 1967, the applicant attempted to enlist and his request for waiver for enlistment was processed through The Surgeon General who determined that he was physically disqualified for enlistment in the Regular Army.  His request for a waiver was disapproved.

4.  On 11 August 1967, the Army Discharge Review Board (ADRB) responded to the applicant's request for an upgrade of his discharge.  He was tendered an offer of an honorable discharge under the provisions of Army Regulation 
635-212 (Unfitness and Unsuitability), by reason of unsuitability due to a character and behavior disorder.  The applicant accepted the offer, and he was issued a new DD Form 214 showing he was honorably discharged under the provisions of Army Regulation 635-212 on 22 October 1964.

5.  The applicant was again inducted into the Army of the United States on 25 September 1968.  He was trained in, awarded, and served in military occupational specialty 12A (Pioneer).  On 27 January 1969, the applicant's unit commander requested that the applicant be separated from the Army as expeditiously as possible because it was reported that the applicant was discharged in 1964 as unsuitable for military service, although there was no evidence that the applicant concealed his previous service when he was inducted.

6.  On 25 March 1969, the applicant's separation was disapproved and his induction was determined not to be erroneous because the Selective Service System had all the pertinent facts regarding the applicant's prior service.  The disapproval for discharge for other reasons could be considered if appropriate.

7.  On 9 July 1969, the applicant was reassigned to the RVN.  He was assigned to Company B, 20th Engineer Battalion (Combat).

8.  On 26 July 1969, the applicant underwent a mental health examination.  The examiner found that he was inept, overly anxious, a problem to his unit, and was diagnosed with an emotionally unstable personality.  He recommended the applicant be separated under the provisions of Army Regulation 635-212 by reason of unsuitability due to a character and behavior disorder (now referred to as personality disorder).

9.  On 30 September 1969, the applicant’s unit commander initiated action to separate the applicant under the provisions of Army Regulation 635-212 due to unsuitability.  He indicated that he was recommending separation because the applicant was incapable of adjusting to or coping with a military environment in the RVN.  He was overly anxious and inept.  During the 2 months he was in the unit he got in bed with a sleeping man, he locked and loaded his M-14 rifle in the barracks in violation of standing orders and then became so emotional it was necessary to physically disarm him and give him a sedative, and he continually prowled the company area late at night in a highly agitated and disoriented state. He was incapable of performing the most menial tasks without constant personal supervision.  He was assigned to quarters at the Engineer Hill dispensary where his actions could be more closely monitored and because his actions continually rendered him subject to criticism from his peers and corrective action from his superiors.  He was recommended for a general under honorable conditions discharge although there was no record of misconduct or evidence of any punitive action taken against him for misconduct. 

10.  On 22 October 1969, the applicant acknowledged notification of his impending discharge.  He consulted with legal counsel and did not submit a statement in his own behalf.

11.  On 12 January 1970, the applicant was discharged under the provisions of Army Regulation 635-212 by reason of unsuitability.  His service was characterized as honorable and he was credited with 1 year, 3 months, and 18 days of military service.

12.  A review of the available service medical records show the applicant was treated in September and October 1969 for a left ankle sprain.  On 13 September 1969, a medical note indicated that he sprained his left ankle the day before when he was jumping over a ditch.  His ankle was slightly swollen and not discolored.  He was seen on follow up on 23 September 1969.  On 6 October 1969, Dr. W____ S____ saw the applicant for orthopaedic consultation for a twisting injury to his left ankle.  He noted the applicant's x-ray revealed an avulsion fracture of the medial malleolus.  He was treated with an ace bandage for support and good fitting boots, and directed to return for follow-up in 4 weeks. On 31 October 1969, it was noted that the applicant's sprained left ankle was resolving and he was returned to light duty.  A review of his separation physical, dated 6 October 1969, shows that he had varicose veins in both legs, superficial and of mild extent.  He also had swelling at the right lateral malleolus with pain on adduction and addition.  He was found medically qualified for discharge.

13.  On 21 January 1970, the applicant filed a DVA claim for disability.  The DVA granted him service connection for a left foot condition and residuals of epigastric hernia, both rated as 0 percent disabling.  Service connection for varicose veins was denied as not incurred in or aggravated by military service.  It was noted that he was denied service connection for an inadequate personality disorder by a DVA rating decision on 29 December 1965.

14.  The applicant provided a letter from the Chief, Orthopaedic Surgery, DVA Medical Center, Washington, D.C., dated 19 April 1991, who indicates that the applicant sustained injuries to both feet in the RVN in 1969.  In 1982, he underwent surgery to his right foot.  This was related to his original war injury.  He reported the applicant continued to have pain and stiffness in both feet, that no further surgery was contemplated, and that his condition would be permanent.

15.  The applicant provided a letter from a retired doctor (major), dated 28 December 1994, who states that he treated the applicant on 19 October 1969 for suicidal and homicidal ideation after taking Donnatal, Darvon, and Librium.

16.  The applicant provided a letter from Dr. W____ S____, dated 8 January 1990, who states that he saw the applicant in an orthopaedic consultation in the RVN on 7 October 1969.  The applicant reported a twisting injury which occurred in September 1969.  He also reported dropping the tongue of a trailer on his right foot.  His examination revealed a diffused right foot and ankle swelling.  X-rays revealed an avulsion on the right ankle medial malleolus.  It was the doctor's opinion that any post-traumatic changes of the right foot were related to the injuries sustained in the RVN.

17.  Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unsuitability.  A general under honorable conditions discharge was normally considered appropriate for members separating under these provisions.

18.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, U.S. Code, chapter 61, and Department of Defense Directive 1332.18.  It sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

19.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-35, stipulates, in pertinent part, that a history of, or current manifestations of, character and behavior disorders (personality disorders), render an individual administratively unfit.  This condition renders an individual administratively unfit rather than unfit because of physical illness or medical disability and will be dealt with through administrative channels.

20.  Department of Defense Instruction 1332.38 (Physical Disability Evaluation), enclosure 5, stipulates, in pertinent part, that certain conditions, circumstances and defects of a developmental nature designated by the Secretary of Defense do not constitute a physical disability and are not ratable in the absence of an underlying ratable causative disorder.  These conditions, circumstances and defects include, but are not limited to, personality disorders.

DISCUSSION AND CONCLUSIONS:

1.  The available medical evidence shows that the applicant was treated for a left sprained ankle which was resolving in October 1969.  The applicant provided a copy of a letter from the orthopaedic doctor who treated him in the RVN in October 1969.  The medical documentation from 1969 shows he was treated for a left ankle twisting injury which resulted in an avulsion fracture of the medial malleolus.  The letter from the orthopaedic doctor (dated 8 January 1990) states that he treated the applicant for a diffused right foot and ankle swelling caused by both a twisting injury and dropping a tongue of a trailer on the right foot.  Given the inconsistency between the service medical records and the doctor's later statements, this evidence fails to support the applicant's contention that he was unfit due to either a left or right foot injury.  Further, the applicant's separation physical noted swelling at the right lateral malleolus, but there was no indication of how he sustained the injury and there was no comment made about his left ankle twisting or back injury.  There is also no medical evidence that he sustained a war injury to either foot.  His separation physical found him qualified for separation.

2.  The DVA granted the applicant service connection for a left foot condition on the basis of his service medical record, but rated his disability as 0 percent disabling which indicates that he was not rendered unfit due to this condition.  He apparently did not request service connection for a right foot condition.  In order to be medically discharged, the applicant must show that he was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  He has not provided sufficient medical evidence to support his claim that he was medically unfit due to a physical condition.

3.  The applicant's discharge on 12 January 1970 was based on his diagnosis of a character and behavior disorder.  By Army regulations, character and behavior disorders render an individual administratively unfit rather than unfit because of physical illness or medical disability and are dealt with through administrative channels.  Therefore, the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would tend to jeopardize his rights.

4.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ___X_____  ____X____  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

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.



      __________XXX_______________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080013425



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ABCMR Record of Proceedings (cont)                                         AR20080013425



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