BOARD DATE:	  13 May 2014

		DOCKET NUMBER:  AR20130016778 


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 on behalf of her deceased spouse, a former service member (FSM), that his under honorable conditions discharge be changed to a medical discharge.

2.  The applicant states:

   a.  Her husband was wrongfully and unjustly admitted into military service based on evidence contained in his records.  His military records revealed he had systemic defects (diseases) he died from that warranted his disqualification for military service.

   b.  Her husband was discriminated against at his rating exam on 3 July 1972.  His disability of psychosis was diagnosed prior to his departure from the Army on    25 July 1972. 

   c.  It appears there was an intentional disregard, omission, and error in the treatment afforded her husband by denying him care in U.S. Army government facilities after his discharge.

   d.  Her family has been deprived of their rights to a pension and benefits since her husband's discharge from the Army on 25 July 1972, to present.  

3.  The applicant provides:

* self-authored statements
* an article entitled "Agent Orange Tested in Panama in the 1960s and 70s"
* a list of diseases subject to presumptive service connection
* Certificate of Death
* Marriage License
* DD Form 214 (Armed Forces of the Unites States Report of Transfer or Discharge)
* Standard Form (SF) 88 (Report of Medical Examination)
* DA Form 3822-R (Report of Mental Status Evaluation)
* Figure 1 (Individual's Statement)
* Form Social Security Administration (SSA)-827 (Authorization to Disclose Information to the SSA)
* three letters
* Ophthalmological Consultative Examination Report
* Department of Veterans Affairs (VA) Rating Decision
* DD Form 47 (Record of Induction)
* DA Form 20 (Enlisted Qualification Record)

CONSIDERATION OF EVIDENCE:

1.  The FSM was inducted into the Army of the United States on 19 June 1969.  He completed training and was awarded military occupational specialty (MOS) 94B (Cook).  On 18 June 1971, he was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Annual Training).

2.  On 15 September 1971, the FSM enlisted in the Regular Army.

3.  On 8 November 1971, the FSM was assigned to U.S. Army South (Panama Canal Zone) to Headquarters and Headquarters Company, 4th Battalion (Mechanized), 20th Infantry Regiment.

4.  The FSM's record contains several counseling and personal witness statements in support of his separation under the provisions of Army Regulation       635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unsuitability:

   a.  10 April 1972, for threatening to kill his spouse and to try to control his drinking.

   b.  18 May 1972, for physically threatening a Soldier at the Halfway House.

   c.  22 May 1972, for being discharged from the Halfway House due to his inability to cooperate.
   
   d.  25 May 1972, for swearing, not cleaning up the mess he made, throwing pot holders, and walking away.  An Article 15 was typed but not administered because he was admitted to the Halfway House.  
   
   e.  1 June 1972, for assaulting a Soldier at the movie theater.
   
   f.  5 June 1972, for being late to duty, his temper, and personal hygiene.  
   
   g.  12 June 1972, for constantly creating problems, refusing to follow instructions, threatening other cooks, substandard hygiene habits, and negative attitude.
   
   h.  19 June 1972, for being involved with the military police concerning his marital problems.
   
5.  His record contains a Psychological Statement in support of his immediate discharge from service, dated 23 May 1972, that states:

   a.  The FSM has relationship problems created by association with his wife who also has serious psychiatric problems.  The FSM used physical violence in beating his wife on numerous occasions and has tried to kill her.  He has been involved in three incidents involving a pistol being drawn on him, threatened to physically harm two staff members at the Halfway House, and physically harmed a member over a minor disagreement.

   b.  The anti-social characteristics of the FSM's spouse showed through social workers involved in the case that she earned money through prostitution and strip-tease dancing, is a pathological liar, is highly manipulative and demanding, and has a pathological dependency on her husband.
   
   c.  The FSM had been hospitalized at the Halfway House on two occasions and consistently failed to respond positively to numerous attempts at individual and family psychotherapy.  
   
   d.  He was primarily diagnosed with a personality disorder with a secondary diagnosis of an alcohol and drug abuser exhibiting poor potential for rehabilitation.
   
   e.  On 23 May 1972, the FSM reported he changed his mind and wanted to remain in the service and be transferred to Fort Sam Houston, TX.  He still did 


not want to return to duty, but wanted psychiatric treatment at Brooke General Hospital.  Due to the severity of the psychiatric disorder which existed prior to service, and the FSM's lack of positive response to 25 days of treatment, it was strongly recommended he be discharged from service.   

6.  On 21 June 1972, the FSM's unit commander advised the applicant that he was recommending him for discharge under the provisions of Army Regulation 635-212 based on his unsuitability for Army duty.

7.  The FSM consulted with legal counsel and was advised of the basis for the contemplated separation action, its effects, and of the rights available to him.  The FSM waived consideration of his case and a personal appearance before a board of officers, indicated that he would not be submitting a statement in his behalf, and waived representation by appointed counsel.  He acknowledged he understood that as the result of issuance of an undesirable discharge under conditions other than honorable, he may be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life.

8.  On 22 June 1972, the unit commander recommended the FSM's separation under the provisions of Army Regulation 635-212 for unsuitability.  The commander stated that this was based on the FSM's performance and attitude due to character and behavior disorders which make it extremely difficult for him to rehabilitate and conform to the standards of a satisfactory Soldier.

9.  On 12 July 1972, the separation authority approved the FSM's discharge for unsuitability and directed that the applicant receive a General Discharge Certificate.  On 25 July 1972, the FSM was discharged accordingly. 

10.  The DD Form 214 issued to the FSM confirms that he was separated with a general discharge on 25 July 1972.  At the time of his discharge, he held the rank of specialist four and had completed a total of 2 years, 10 months, and 11 days of creditable active military service.  This document further shows the authority for his separation was Army Regulation 635-212 and the reason for separation was unsuitability.  Based on the authority and reason for his discharge, the applicant was assigned a Separation Program Number of 264, which reflected a character and behavior disorder separation.   
  
11.  There is no indication in his military records that shows:

* he was issued a permanent physical profile


* he suffered an illness or an injury that rendered him unable to perform the duties required of his grade or MOS

12.  There is no evidence in the FSM's personnel service record which shows he  sought assistance from his chain of command for issues involving discrimination nor does the applicant provide sufficient evidence to support her contention that the FSM was discriminated against at his rating examination.

13.  The applicant provides:

   a.  The FSM's Certificate of Death that shows he died on 17 June 2012, of coronary artery disease, endstage renal failure, hypertension, and hyperlipidemia.

   b.  A VA Rating Decision, dated 19 February 2014, that states service connection for cause of death remains denied.  No service treatment records were available for review; however, the FSM was not rated service-connected for any conditions during his lifetime.

   c.  An SF 88, dated 4 May 1971, that shows the FSM was physically qualified for separation (prior to his subsequent enlistment on 15 September 1971) and an SF 88, dated 3 July 1972, that shows he was physically qualified for discharge.

14.  His service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

15.  Army Regulation 635-212, then in effect, set forth the policy and procedures for the administrative separation of enlisted personnel for unfitness and unsuitability.  It provided for the discharge due to unsuitability of those individuals with character and behavior disorders and disorders of intelligence as determined by proper medical authority.  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.

16.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) currently sets forth the basic authority for the separation of enlisted personnel.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

17.  Army Regulation 635-200 was revised on 1 December 1976 following settlement of a civil suit.  Thereafter, the type of discharge and the character of service were to be determined solely by the individual's military record during the current enlistment.  Further, any separation for unsuitability based on a 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 upgrades of discharges based on personality disorders.

18.  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.

19.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (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, 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 prescribed in Army Regulation 40-501 (Standards of Medical Fitness).

20.  Army Regulation 40-501 states in pertinent part that personality disorders render an individual administratively unfit rather than unfit because of physical illness or medical disability and will be dealt with through administrative channels.

21.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the 


physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request on behalf of her deceased spouse that his under honorable conditions discharge be changed to a medical discharge has been carefully examined; however, it was determined that there is insufficient evidence to support this request.

2.  With respect to the medical discharge:

	a.  Prior to the FSM's discharge, he underwent a separation physical and he was found fully qualified for separation.   

	b.  While his records indicate he was primarily diagnosed with a personality disorder, presumably by competent military medical authorities, with a secondary diagnosis of an alcohol and drug abuser exhibiting poor potential for rehabilitation, there is no evidence in his records and the applicant did not provide substantiating evidence that shows he was medically disqualified for retention or separation.  Nowhere in the FSM's records does it show he:

* was issued a permanent physical profile
* suffered an illness or an injury that rendered him unable to perform the duties required of his grade or military specialty or that required him to be considered by a medical evaluation board

	c.  Furthermore, if he suffered an injury that did not manifest until years later, a key element of the Army disability system is the existence of a disabling condition at the time of separation.  Again, the Army must find a member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before that member can be medically separated or retired.

3.  The applicant's claim that her husband was defective upon enlistment and died from the disease that disqualified him from military service is without merit.  The FSM's entry and exit medical examinations clearly show the FSM was medically qualified upon his entry into and subsequent discharge from military service.

4.  Although the applicant alleges the FSM was a victim of discrimination during his military service, there is no evidence in his military records and the applicant 


has not provided sufficient evidence to support this contention.  Therefore, this argument is not sufficient to support her request for a medical discharge for the FSM.

5.  The applicant failed to show through the evidence submitted and the evidence of record that the FSM was medically/physically unfit at the time of discharge and that he should have been processed for separation due to a physical disability.  

6.  However, subsequent to the FSM's discharge the regulation was changed following settlement of a civil suit.  In view of the change, the general discharge issued to the FSM at the time of separation is inconsistent with the standards for discharge for unsuitability – character and behavior disorder (now known as personality disorder) – which subsequently became effective.  Since these new standards retroactively authorized an honorable discharge in cases where Soldiers diagnosed with a personality disorder were separated for unsuitability, the FSM should receive an honorable discharge consistent with these standards.

7.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief; however, partial relief in the form of an upgrade of the FSM's discharge to honorable is appropriate.

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 
issuing him a new DD Form 214 and an Honorable Discharge Certificate, dated 25 July 1972, in lieu of the DD Form 214 and General Discharge Certificate he was given.

2.  The Board further determined that the evidence presented was 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 FSM receiving a medical discharge.



      ___________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)                                         AR20130016778





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ABCMR Record of Proceedings (cont)                                         AR20130016778



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