IN THE CASE OF:	  

		BOARD DATE:	  10 January 2013

		DOCKET NUMBER:  AR20120011051 


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 his general discharge be upgraded to medical.

2.  The applicant states, in effect, he should have received a medical discharge with entitlements.  It was unjust for him to receive a general discharge because he had medical issues which were documented in his military records.

3.  The applicant provides:

* A medical psychiatry evaluation, dated 26 January 2009
* Department of Veterans Affairs (VA) rating decision, dated 3 February 2011
* Various medical records from his military 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 applicant's record contains a Standard Form (SF) 88 (Report of Medical Examination), dated 29 January 1969, which shows he was qualified for military service.

3.  He was inducted into the Army of the United States on 30 January 1969 and held military occupational specialty 11B (Light Weapons Infantryman).  The highest rank/grade he attained while serving on active duty was private first class/E-3.

4.  On 18 July 1969, he accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from the overseas replacement detachment from 25 June 1969 to 17 July 1969.

5.  His DA Form 20 (Enlisted Qualification Record) shows he was assigned to Vietnam from 22 July 1969 to 21 July 1969 and served with Company C, 2nd Battalion, 8th Calvary Regiment, 1st Air Cavalry Division from 27 July 1969 to 
31 October 1969.

6.  His record contains a DA Form 268 (Report from Suspension of Favorable Action (FLAG)), dated 29 September 1969.  This form shows he received the FLAG because he was pending elimination in accordance with Army Regulation 635-212 (Discharge Unfitness and Unsuitability).

7.  His record contains a report of psychiatric evaluation, issued by the Mental Hygiene Consultation Service, 15th Medical Battalion, 1st Cavalry Division (Air Mobile), dated 30 September 1969.  The report was sent to his commanding officer and stated he had been psychiatrically examined based on a command referral because he was reported to have a bad attitude with regard to service in Vietnam.  

	a.  No thought disorder was evident, his effect was appropriate, his speech was coherent, his memory was intact, his judgment was good, and his intelligence was considered to be within normal limits.

	b.  He met psychiatric retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), knew right from wrong, could adhere to the right, and could participate in proceedings involving his person.  The division psychiatrist, a medical officer, noted that rehabilitation could be considered; however, the success of a rehabilitation attempt was doubtful.
	c.  He was diagnosed as having a passive aggressive personality, chronic, minimal stress, severe.

	d.  The division psychiatrist noted the applicant had displayed a history of aggressiveness toward figures of authority.  The applicant reported a military history which included one Article 15 for being AWOL.  His attitude toward the Army was hostile, as evidenced by his statement "the Army is stupid."  His attitude towards his unit's noncommissioned officers and officers was also hostile.  He felt that he was treated unfairly and stated he did not want to "please the Army in any way."  Additionally, he displayed a slight paranoia in that he generally felt everyone treated him unfairly.

	e.  The division psychiatrist recommended he be psychiatrically cleared for any administrative action deemed appropriate by his command including separation from the military under the provisions of Army Regulation 635-212.  It was also suggested that he be examined for any back pathology including x-ray.

8.  On 15 October 1969, his immediate commander notified him that proceedings to discharge him under the provisions of Army Regulation 635-212 for unsuitability with a general discharge had been initiated.  His commander further stated the action was based upon the report of psychiatric evaluation which psychiatrically cleared him for any administrative action deemed appropriate by his command including separation from the military under the provisions of Army Regulation 635-212.  The applicant acknowledged receipt and consulted with legal counsel.  He was advised of the basis for the contemplated separation for unsuitability, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and elected not to submit a statement on his own behalf.

9.  He further indicated he understood as a result of the issuance of a discharge under other than honorable conditions, he could be ineligible for many or all benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life.

10.  On 16 October 1969, his immediate commander initiated separation action against him in accordance with Army Regulation 635-212 by reason of unsuitability and indicated the discharge was warranted because of character and behavior disorders.  His commander recommended a general discharge and stated:

	a.  from 2 August 1969 to 16 October 1969 the applicant had been assigned to various duty assignments within the company commensurate with his training and ability and has served under different officers and noncommissioned officers. In each instance his performance of duty had been unsuitable and unsatisfactory. His military superiors and the division psychiatrist agreed that further rehabilitation efforts would be of doubtful value.

	b.  he had been repeatedly counseled by the company commander, executive officer, first sergeant, his platoon sergeant, and his squad leader.

	c.  he requested a waiver of rehabilitative transfer because in the opinion of the division psychiatrist the applicant's condition was such that "rehabilitation within the military may be considered but success is doubtful."

11.  His record contains a statement from major CEB, wherein he stated the applicant had been charged with refusal to go to the field.  On 9 October 1969, a trial was held.  The applicant was found guilty.  As of 16 October 1969, the Special Court-Martial Order had not been completed because the record of trial had not yet been approved.  Therefore, the applicant's military personnel file contained no record of previous convictions.  He also received an Article 15 for being AWOL.

12.  His record contains a statement made by his company commander wherein it was stated, while under his command, the applicant had shown a complete lack of willingness to perform his function as an infantryman.  The applicant had been permitted to return to the battalion in the rear for a physical examination of his back.  He was cleared for full field duty.  He was sent to Forward Fire Support Base Ike where he refused a direct order to return to the field.  His company commander counseled him at that time concerning the consequences of his refusal of field duty.  The applicant again refused to join the company a few days later and had subsequently refused to perform any duties associated with the military way of life.  

13.  His record contains a statement made by his executive officer (XO) wherein it was stated that since the XO had been appointed he had numerous occasions to observe the applicant.  His everyday failure to observe standard military procedures displayed his negative attitude in performing his duties.  The XO counseled him concerning his attitude and constant refusal of field duty but obtained negative results in all instances.  His actions reflected unsuitability for active military duty.


14.  On 27 October 1969, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-212 by reason of unsuitability and directed the applicant be furnished a General Discharge Certificate.  The applicant was accordingly discharged on 2 November 1969.

15.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) confirms he was discharged on 2 November 1969 with a character of service of under honorable conditions (general), and assigned a Separation Program Number (SPN) 264 (Personality Disorder).  This form further confirms he completed 8 months and 11 days of creditable active military service, of which 2 months and 19 days was credited as foreign service.  

16.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

17.  He provided a medical psychiatric evaluation, dated 26 January 2009, wherein his psychiatrist opined that he suffered from post-traumatic stress disorder (PTSD) as a direct result of his military service.

18.  He provided a VA rating decisional document, dated 3 February 2011, wherein it shows the VA had granted him entitlement to individual unemployability due to his PTSD.  However, the VA denied his claim for a service connected disability for his back.  The VA stated this portion of his claim was denied because:

* his service treatment records from 1969 revealed he complained of a back condition and the attending physician suggested he be examined for any back pathology to include x-ray
* other than the attending physician's suggestion, no additional evidence was available for a definitive diagnosis
* he denied having a back condition on his separation examination, nor was there any evidence that he was diagnosed with a back condition within one year of his discharge
* his treatment notes from the Baltimore VA Medical center were negative for any complaint, diagnosis, or treatment of a back condition

19.  He provided a Standard Form (SF) 600 (Chronological Record of Medical Care), wherein it shows, on 30 September 1969, his attending physician suggested he be examined for any back pathology to include x-ray.

20.  He provided his separation physical, dated 15 October 1969.  His physical contains no evidence of a back condition and shows he was medically qualified for military service.  
21.  Army Regulation 635-212, then in effect, set forth the policy and procedures for administrative separation of enlisted personnel for unfitness and unsuitability. When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual's entire record.  Paragraph 6b provided that an individual was subject to separation for unsuitability when one or more of the following conditions existed:

* inaptitude
* character and behavior disorders
* apathy (lack of appropriate interest, defective attitudes, and inability to expend effort constructively)
* alcoholism
* enuresis

22.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), which superseded Army Regulation 635-212, was revised on 1 December 1976, following settlement of a civil suit.  Thereafter, the type of discharge and the character of service was to be determined solely by the individual's military record during the current enlistment.  Further, any separation for unsuitability, based on personality disorder must include a diagnosis of a personality disorder made by a physician trained in psychiatry.  In connection with these changes, a Department of the Army Memorandum dated 14 January 1977, and better known as the Brotzman Memorandum, was promulgated.  It required retroactive application of revised policies, attitudes and changes in reviewing applications for upgrade of discharges based on personality disorders.

23.  A second memorandum, dated 8 February 1978, and better known as the Nelson Memorandum, expanded the review policy and specified that the presence of a personality disorder diagnosis would justify upgrade of a discharge to fully honorable except in cases where there are "clear and demonstrable reasons" why a fully honorable discharge should not be given.  Conviction by general court-martial or by more than one special court-martial was determined to be "clear and demonstrable reasons" which would justify a less than fully honorable discharge.

24.  Army Regulation 40-501 provides the medical fitness standards for retention and separation, including retirement.  Chapter 3 of this regulation lists the various medical conditions and physical defects which may render a Soldier unfit for further military service.  Paragraph 3-35 of the regulation currently in effect 


addresses personality disorders.  It states a history of, or current manifestations of, personality disorders and other disorders of impulse control not elsewhere classified, render an individual administratively unfit.  These conditions render an individual administratively unfit rather than unfit because of physical illness or medical disability.  These conditions will be dealt with through administrative channels, including Army Regulation 635-200.

25.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the 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 or her office, grade, rank, or rating.  It provides for medical evaluation boards (MEB), which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in Army Regulation
40-501, chapter 3.

26.  Army Regulation 635-40 states the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present 
with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before that service member can be medically separated or retired.

27.  Title 38, U.S. Code, sections 1110 and 1131, permits the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish an error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge should be upgraded to medical because he had documented medical conditions.  Additionally, based on the documentation he provided it appears he is claiming his medical conditions were related to his back and his diagnosis of a passive aggressive personality, chronic, minimal stress, severe.

2.  The evidence of record shows the applicant demonstrated that he could not or would not meet acceptable standards required of enlisted personnel.  

3.  His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors.  The type of discharge directed and the reason for separation were both proper and equitable at the time.  However, it now appears his overall service record and his diagnosed personality disorder warrant upgrading of his discharge to fully honorable as directed by the above-referenced Army memoranda.  Therefore, he is entitled to an upgrade in his discharge to honorable.

4.  With respect to the medical discharge, although the applicant was diagnosed with a personality or character and behavior disorder that led to his discharge, by regulation, such conditions render an individual administratively unfit rather than unfit because of physical illness or medical disability.  These conditions will be dealt with through administrative channels.  There is no evidence in the available record, and the applicant did not provide any evidence, that shows he was treated for, or diagnosed with, a medical condition while on active duty that would have rendered him unfit to perform his duties and/or result in a medical discharge.  Therefore, he is not entitled to a medical discharge.

5.  Even if he suffered an injury or an illness (such as a back injury or), the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before that service member can be medically separated or retired.

6.  Furthermore, an award of a rating by another agency – the VA in this case –does not establish an error by the Army.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service connected) that affects the individual's civilian employability.  



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  issuing the applicant an Honorable Discharge Certificate, dated 
2 November 1969, in lieu of the General Discharge Certificate of the same date now held by him; and

	b.  issuing the applicant a new DD Form 214 reflecting the above corrections.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the correction of his records to show he was medically discharged.



      _______ _   _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)                                         AR20120011051





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ABCMR Record of Proceedings (cont)                                         AR20120011051



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