IN THE CASE OF:	  

		BOARD DATE:	  8 December 2009

		DOCKET NUMBER:  AR20090012542 


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 an upgrade of his general, under honorable conditions discharge to a fully honorable discharge.  He also requests a medical discharge and a mental illness discharge.

2.  The applicant states that he became mentally ill while in the Army.  He became ill after he was given a vaccine inoculation injection and the psychiatrist had him discharged.  He became schizophrenic and depressed and he suffered epileptic fits (seizures and severe headaches).  He adds that while stationed at Fort Leonard Wood, MO, he became ill and they discarded him like one would discard a bag of trash.  This occurred 34 years ago.  The Army needs to do the right thing and give him an honorable discharge.  He also states:

	a.  after he was given the vaccine, he became severely depressed and became schizophrenic.  It was like he was strapped in a fog.  He could not disassemble his rifle, clean it, and reassemble it.  He was caught in a state of intense confusion.   He saw a psychiatrist who told him he was having audio and visual hallucinations but he was told it was best to discharge him.  He developed problems and started having epileptic fits called grand seizures where he lost consciousness and suffered convulsions.  He had loss of memory and severe headaches.

	b.  at the present time, he had been in and out of touch with reality for years at a time.  He has been in and out of psychiatric clinics and/or centers and he was forced to have a payee because he is not competent enough to handle money.  He is still mentally ill and suffers epilepsy.  He had just turned 17 when he enlisted and he was healthy.  He was also patriotic and loved his country.  However, after the vaccine, he became physically and mentally sick.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty), for the period ending 7 April 1975; a copy of his immunization record, dated on miscellaneous dates throughout his service; and a copy of his Standard Form (SF) 93 (Report of Medical History), dated 28 August 1974.

4.  On 2 September 2009, the applicant submitted a letter in which he inquired about the whereabouts of his case.  He also requested someone contact him by phone and that someone explain to him the Board’s procedures.  He restated his contention that he was messed up since the Army put the vaccine injections into his arms.  He adds that he needs some representation before the Board and inquired about the appeal process.

5.  On 7 September 2009, the applicant submitted another letter in which he inquired about the status of his case.  He also requested explanation of the different entries on his DD Form 214 and requested a copy of the manual that pertains to his discharge.  He adds the following:

	a.  He is and has been mentally ill since 1974 when he was subjected to a vaccine injection at Fort Leonard Wood.  He questions the way he was discharged and he believes there should have been more to it than being seen by a doctor.  He adds that he tried to kill himself by cutting up his arms and swallowing a bottle of tranquilizer at his parents' home at the time.  He was then taken to a hospital where his stomach was pumped and his arms were sewn.  The doctor's only concern at the time was the Army and they did not do much to help him.

	b.  The technology in medicine exists today for the examination of DNA.  His 29-year old daughter has been mentally ill since birth.  Her sister was fathered by another man and her sister is mentally fine.  The viruses and drugs injected into him at the time nearly destroyed him.  They crippled his mind.  He was getting paid by the Social Security Administration and the money was sent to a payee to handle since he (the applicant) was incompetent and he did not pay his rent and bills most of the time.  So he became homeless and starved.  He was fed by a soup and kitchen when they were open.  He lived in a burned-out house and the Veterans Administration (VA) medical center turned him away.

	c.  When the Army discharged him he had to walk off post because he had no money.  They took him to a hospital and then on to psychiatrists where they beat him up and strapped him down to a bed for days and stuck needles into the side of his hip.  He then moved to Ohio where he stayed in a garage until the owner shot him in the leg.  His leg continues to be messed up.

	d.  He has been on the criminal path, but not by choice.  The doctors at Fort Leonard Wood did not send him to a medical center for treatment.  They tossed him to the side like one would the weekly trash.  There must have been a procedure in place back then to protect him.  The Board should investigate this matter.  An injustice still exists even 34 years later.

6.  On 21 September 2009, the applicant submitted another letter in which he inquired about the meaning of various codes on his DD Form 214.  He also requested assistance with representation in a hearing before the Board.

7.  On 26 October 2009, the applicant submitted another letter in which he stated that he is displeased with the fact that no one is responding to his letters and questions the Board's indifference.

8.  On 15 on 17 November 2009, the applicant submitted two more letters in which he stated that he never used any drugs and that his emotional problems, mental daze, and emotional breakdown with loss of reality are true.  There was never any urine test to detect drug use nor was he caught with drugs.  He was mentally ill and he should have received a medical discharge. 

9.  On 22 and 27 November 2009 and on 2 December 2009, the applicant submitted yet several additional letters in which he stated that he never used drugs during his military service and restated his original contention that he had become mentally ill due to the vaccines he was given.  

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 applicant's records show he enlisted in the Regular Army (RA) for a period of 3 years on 8 August 1974.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 62B (Engineer Equipment Repairman).  The highest rank/grade he attained during his military service was private (PV2)/E-2.  He was assigned to Headquarters and Headquarters Company, 5th Engineer Battalion at Fort Leonard Wood.

3.  The applicant’s awards and decorations include the National Defense Service Medal and the Marksman Marksmanship Qualification badge with Rifle Bar.

4.  The applicant’s records show he was counseled by his immediate commander on 28 February 1975 and 11 March 1975 for his inability to adjust to a military environment.  In each case, his inability to accept reality without an emotional breakdown resulting in tears led to ineffective counseling.

5.  On 11 March 1975, the applicant’s immediate commander referred the applicant to a psychiatric evaluation for his emotional problems and apparent instability.  The immediate commander remarked that the applicant stated that he wanted a discharge out of the military because he could not take it.  He also remarked that the applicant had a severe emotional problem that appeared to be difficult for him (the applicant) to explain.  He entered the Army because he could not get along with his parents or teachers in school.  As a result, he quit school to join the Army.  His worrying family problems were compounded by his sick mother and a father who was available only on the weekend.  His emotional problems came to a head because of a recent conflict with his older girlfriend.  She was the domineering type and wanted to get married.

6.  On 19 March 1975, the applicant underwent a mental hygiene evaluation at Fort Leonard Wood.  The military doctor remarked that the applicant indicated that he wanted to be discharged because he could not tolerate military life.  He felt depressed most of the time and he spent his money on drugs like LSD and speed.  He had sleep disturbance when he was not on drugs.  His thought process was retarded and he admitted to hearing voices when he was not on drugs.  He also stated that he was worried about his mother’s health but he did not plan to go home when he gets discharged.  The military doctor indicated that the applicant was not fit for military service and recommended his discharge.

7.  On 24 March 1975, the applicant’s immediate commander notified the applicant that he intended to recommend his discharge from the Army under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-37 (Expeditious Discharge Program), by reason of immaturity and inability to adjust to a military environment.  He remarked that the 
applicant’s emotional problems were continuously interfering with his duty performance, such that his work required much more than the normal amount of supervision.  He added that the applicant was in a constant daze and that his reliance on drugs as a result of his problems was not tolerated.  His immaturity, lack of consistent motivation, and rejection of authority had rendered him useless to effective military service.  He further recommended a general, under honorable conditions discharge.

8.  On 24 March 1975, the applicant acknowledged notification of his proposed discharge from the Army.  He consulted with legal counsel and he was advised of the basis for the contemplated separation from the Army; the effect on future enlistment in the Army; the possible effects of a general, under honorable conditions discharge; and of the procedures and rights that were available to him. He voluntarily consented to this discharge.

9.  The applicant further acknowledged that he understood if he were issued a general discharge, he could expect to encounter substantial prejudice in civilian life.  He also submitted a statement in which he stated that he served his country honorably and followed orders.  His problem was not a lack of devotion to the Army, but rather his dying mother and the fact that he was far from home.  He added that his worry for his parents led him to use drugs which seriously affected his thinking.  He also stated that he chose a chapter 5 discharge because he felt it was in the best interest of himself and the Army.

10.  On 24 March 1975, the applicant’s acting immediate commander recommended approval of the applicant’s discharge with a General Discharge Certificate.

11.  On 26 March 1975, the separation authority approved the applicant's discharge under the provisions of paragraph 5-37 of Army Regulation 635-200 by reason of failure to meet acceptable standards for continued military service and directed that he receive a General Discharge Certificate.  On 7 April 1975, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he completed a total of 8 months of creditable active military service.  Item 9c (Authority and Reason) shows the entry "Para 5-37, AR 635-200, SPD (Separation Program Designator) KMN."

12.  On 11 July 1985, the Army Discharge Review Board (ADRB) denied the applicant’s petition for an upgrade of his discharge.


13.  The applicant's available medical records do not indicate he sustained an injury or an illness that would have restricted his duties, led to a physical profile, or entry into the Physical Disability Evaluation System (PDES).  

14.  The applicant submitted a copy of his immunization record that shows he received several vaccinations on various dates throughout his military service.  However, his available medical records do not indicate he had a reaction to any vaccines or medications.  Furthermore, his available medical records show his health was "pretty good" with "no ailments or injuries."

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The pertinent paragraph in chapter 5 provided that members who had completed at least 6 months but less than 36 months of continuous active service on their first enlistment and who had demonstrated that they could not or would not meet acceptable standards required of enlisted personnel because of poor attitude, lack of motivation, lack of self-discipline, inability to adapt socially or emotionally, or failure to demonstrate promotion potential may be discharged under the Expeditious Discharge Program.  It provided for the expeditious elimination of substandard, nonproductive Soldiers before board or punitive action became necessary.  No member would be discharged under this program unless he/she voluntarily consented to the proposed discharge.  Issuance of an honorable discharge certificate was predicated upon proper military behavior and proficient performance of duty during the member's current enlistment with due consideration for the member's age, length of service, grade, and general aptitude.  A general discharge is a separation from the Army under honorable conditions of an individual whose military record was not sufficiently meritorious to warrant an honorable discharge.

16.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

17.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that the SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The primary 
purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of the Department of Defense and the Military Services to assist in the collection and analysis of separation data.  The "KMN" SPD code is the correct code for Soldiers separating under chapter 5-37 of Army Regulation 635-200 by reason of failure to meet acceptable standards for continued military service.

18.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  In establishes standardized policy for the preparation of the DD Form 214.  In pertinent part, it states that the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  The version in effect at the time mandated the entry of the appropriate RE code in item 10.  An RE-1 was used for members who were fully qualified for immediate reenlistment.  An RE-3 was used for members ineligible for reenlistment unless a waiver was granted.

19.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army PDES and 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/her office, grade, rank, or rating.  Under the laws governing the Army PDES, 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.

20.  Army Regulation 40-501, paragraph 3-3b(1), as amended, provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his or her office, grade, or rating and the conditions must have been incurred while entitled to base pay.

21.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general, under honorable conditions discharge should be upgraded; that he should receive a medical discharge and a mental illness discharge; and that there are many unanswered questions regarding his discharge.

2.  The evidence of record shows that the applicant demonstrated that he could not or would not meet acceptable standards required of enlisted personnel because of his inability to adapt socially or emotionally.  Accordingly, his immediate commander initiated separation action against him.  More importantly is the fact that he voluntarily consented to his discharge.  His separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reason for separation therefore were appropriate considering all the facts of the case.  Based on his overall record, the applicant's service does not meet the standards of acceptable conduct of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable discharge.

3.  With respect to a medical discharge, there is no evidence in the applicant’s records and the applicant did not provide any substantiating evidence that shows he sustained an illness or an injury that would have warranted his entry into the PDES.  Furthermore, there is no evidence in the available records and the applicant did not submit any substantiating evidence that shows he was issued a permanent profile or that he underwent an MEBD or PEB.  By his own admission, the applicant was worried about his parents, which led him to the use of drugs, including LSD, which affected his thinking.  

4.  In accordance with the laws governing the PDES, a 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.  In addition, the disability must not have resulted from the Soldier’s intentional misconduct or willful neglect.  The applicant’s use of LSD, a mind-altering drug which could have been the cause of his schizophrenia, would have been intentional misconduct, thereby disqualifying him from entering the PDES and being considered for a medical separation.

5.  With respect to the applicant's other contentions:

	a.  The applicant’s request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent 

evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, it is concluded that a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

	b.  The evidence of record confirms that the applicant’s SPD and RE codes were assigned based on the fact that he was discharged under the provisions of chapter 5-37 of Army Regulation 635-200 by reason of failure to meet acceptable standards for continued military service.  Absent his failure to meet acceptable standards for continued military service, there was no fundamental reason to process the applicant for discharge.  The underlying reason for his discharge was his failure to meet acceptable standards for continued military service.  The appropriate SPD and RE codes associated with this discharge are SPD "KMN" and the corresponding RE is RE-3.

	c.  The ABCMR is neither an investigative agency nor does it correct records solely for the purpose of establishing eligibility for other programs or benefits.  The ABCMR considers individual applications that are properly brought before it. In appropriate cases, it directs or recommends correction of military records to remove an error or injustice.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  There is no provision to provide applicants with copies of the regulation or contact the applicant telephonically.

6.  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 failed to submit evidence that would satisfy this requirement.  In view of the circumstances in this case, the applicant is not entitled to any relief.  He has not shown error, injustice, or inequity for the relief he requests.

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.



      ___________x____________
               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)                                         AR20090012542



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ABCMR Record of Proceedings (cont)                                         AR20090012542



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