BOARD DATE:	  27 January 2015

		DOCKET NUMBER:  AR20140006730 


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 a change of his discharge to a medical disability retirement.

2.  The applicant states:

   a.  He was hospitalized at the 71st Evacuation Hospital in Vietnam on 20 May 1970 and he was diagnosed with "Acute and chronic anxiety."  He had served as a Special Forces Officer in numerous combat and administrative positions since his arrival in June 1968.  Additionally, he had contracted Falciparum Malaria twice during his tour.  Prior to his hospitalization he was having severe insomnia and hadn't slept in many days.  He discussed this with a friend and his friend took him to the 71st Evacuation Hospital.  On 25 May 1970, he was transferred to the 93rd Evaluation Hospital in Long Binh, Vietnam, and was diagnosed with Schizophrenic reaction, paranoid type.  

   b.  On 28 May 1970, he was transferred to the U.S. Army Hospital in Camp Zama, Japan and was diagnosed with "Acute schizophrenic reaction, manifested by disturbance of affect and association, perplexity, delusions of persecution, depression, and fear; treated and improved, manifested by paranoid delusions, looseness of associations, ideas of reference, autistic, concrete thinking, and constructed effect."  He was treated at Letterman and referred to a Physical Evaluation Board (PEB) with the Narrative Summary (NARSUM), dated 10 June 1970.  

   c.  On 13 August 1970, a Medical Evaluation Board (MEB) found him medically unfit for further military service in accordance with current medical fitness standards.  On 27 August 1970, a PEB placed him on the Temporary Disability Retirement List (TDRL) with a rating of 30 percent (%) and a reexamination in 12 months.  On 19 October 1971, the reexamination was held and the NARSUM noted, "…marked impairment for further military duty, line of duty (LOD): Yes (definite impairment for social and industrial adaptability).  The patient does not meet retention standards…recommended that the patient be presented to the PEB for consideration of continuing subject on the TDRL."  

   d.  On 19 October 1971, an MEB found him medically unfit and referred him to a PEB.  On 11 November 1971, the PEB, with no indication of reference to either the NARSUM or the MEB changed his diagnosis to "slight," reduced his rating to 10%, found him unfit and recommended separation with severance pay. Both the NARSUM and the MEB used identical wording:  2955 – Schizophrenic reaction, paranoid type, improved; history of paranoid delusions, loosing of associations, ideas of reference, autistic and concrete thinking and constricted affect; mild stress – Vietnam duty; predisposition – unknown; marked impairment for further military duty, LOD: Yes (definite impairment for social and industrial adaptability).  In the interest of justice he should be medically retired with a minimum rating of 30% effective 16 December 1971, the effective date of his medical severance.

   e.  He believes the PEB reduced his rating on 11 November 1971 from 30% to 10% in order to avoid obligating the Department of Defense to pay retirement for a mental illness.  He feels they were missing key information concerning his Vietnam service, including several awards to include the Combat Infantryman Badge (CIB) and Bronze Star Medal with "V" Device and 2nd Oak Leaf Cluster that were not listed on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) until 14 March 2013.

   f.  The PEB included a Medical Corps colonel, an Infantry colonel, and an Infantry lieutenant colonel.  He feels the lack of the Combat Infantryman Badge would have lessened his value in the infantry officers' eyes.  Also, the stress level that precipitated his illness lessened in direct relation to where the NARSUM was prepared.  In Vietnam, it was, "Stress:  Maximal, duties in combat zone."  In Japan it was: "Stress" Moderate – extended tour in combat zone."  In San Francisco it was: "Mild stress of Vietnam duty."  Both PEBs evaluated him based on the NARSUM containing "mild stress – Vietnam duty."  How or why would the stress level he experienced as a Special Forces Officer in Vietnam with numerous combat experiences change from Maximal to Mild?


   g.  His condition did appear to improve because of heavy dosages of medication.  He went from being completely paranoid in a catatonic-like state to doing the Thorazine shuffle and having daily suicidal ideation.  He believes the NARSUM and PEB intentionally used the word improved to indicate he was no longer having daily suicidal ideation or doing the Thorazine shuffle; ergo, he had improved.  Another injustice is that the Department of Veterans Affairs (VA) rating for the identical disqualifying disability was 30% on the day of medical separation.  He has discovered that Title 10 required PEBs to rate unfitting conditions per the VA Schedule for Rating Disabilities (VASRD).  Throughout the years, the Federal courts have supported that law with several rulings that affirm that PEBs must rate unfitting conditions per the VASRD.

   h.  Title 10, U.S. Code (USC), section 1201 required that disability ratings by the Secretary of the pertinent military department be based on the VASRD schedule.  Section 1201 provides, "Determination [that a service member is unfit for duty because of a physical disability] are determined by the Secretary that…the disability is at least 30% under the standard schedule of rating disabilities in use by the VA at the time of the determination…"  In Thompson v. United States and Hordechuck v. United States the court notes that the statute required by specific reference that the rating of disability be made under the standard schedule of rating disabilities in use by the VA.

   i.  After being medically separated in 1971, he intentionally avoided all contact with the Army, friends with whom he served, and any remainders of Vietnam.  He was embarrassed because he felt he had let people down.  He was extremely successful with his avoidance and was not even aware of his eligibility for VA healthcare until 2001.  The first time he looked at any of his separation paperwork was in 2012, after suffering from severe depression.  It was then he discovered his DD Form 214 was missing awards and read the NARSUM, MEB, and PEB from 1971.  He applied to the Army Board for Correction of Military (ABCMR) for correction and he was granted full relief for the awards.  

   j.  The internet enabled him to search court cases and confirmed to him that his treatment by the Army in 1971 was as unconscionable as he can remember.  It is upsetting for him to read comments from physicians sitting safely in San Francisco that he was under, "mild stress – Vietnam duty."  He was drafted into the Army in 1966 and made a decision to give the Army his best effort.  He gave the Army 100% and was given a disability rating of 10%, severed and burdened with the diagnosis of Schizophrenia.  This label cost him in terms of employment, promotion, and health insurance costs. 

   k.  He will soon be 62 years of age and still believes he peaked at age 22.  His wife is a colon-cancer survivor and they have paid an average of $12,000 per year for her health insurance since 1996.  It seems clear to him, arguably not the most sane or most objective person involved, that the PEB got it wrong.  They changed his condition from improved to slight without utilizing the resources they had available, including the MEB and the NARSUM.

3.  The applicant provides copies of the following:

* Surgeon General (SG) Form 84 (Clinical Record Cover Sheet)
* two DA Forms 8-275-3 (Clinical Record Cover Sheet)
* Standard Form (SF) 539 (Clinical Record – Abbreviated Clinical Record)
* two SF 88 (Report of Medical Examination)
* 1970 and 1971 SF 502 (NARSUM)
* SF 507 (Clinical Record)
* 1970 and 1971 MEB Proceedings
* 1970 and 1971 DA Forms 199 (PEB Proceedings)
* VA Form 21-6796 (Rating Decision)
* two DD Forms 214 
* a letter from the VA 
* VA Form 21-6798 (Disability Award)
* DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty)

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 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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant was inducted into the Army of the United States on 14 September 1966.  He was awarded military occupational specialty 11F (infantry operations and intelligence specialist).  He was honorably discharged on
16 August 1967 for the purpose of accepting a commission.  He was credited with completing 11 months and 3 days of net active service. 

3.  He was appointed in the U.S. Army Reserve (USAR) on 17 August 1967.  He was ordered to active duty and entered active duty on the same day.  He held the specialty of 31542 (special forces infantry).  He served in Vietnam from 24 June 1968 through 10 June 1970, during seven campaigns.

4.  His records contain and he provided copies of the following:

   a.  An SG Form 84 which shows he was admitted on 26 May 1970 and he was diagnosed with an Schizophrenic reaction, paranoid type.

   b.  A DA Form 8-275-3, dated 28 May 1970, which shows he was diagnosed with a Schizophrenic reaction, paranoid type, and he was hospitalized.  His stress was maximal, duties in combat zone.  His impairment was marked for further overseas duty.  His condition on discharge was noted as improved.  

   c.  An SF 539, dated 3 June 1970, which shows he was diagnosed with an Acute schizophrenic episode, manifested by disturbance of affect and association, perplexity, delusions of persecution, depression, and fear, treated, unimproved.  His stress was noted as "Moderate – extended tour in a combat zone.  His impairment was noted a "Severe."  His disposition was evacuation to the United States.

   d.  An SF 88 which shows he underwent a TDRL medical examination on 3 August 1970.  The form noted he had been diagnosed with a Schizophrenic reaction, paranoid type, acute, severe, improved.  He was determined not qualified for further military duty.

   e.  An SF 502, dated, 11 August 1970, which stated:

		(1)  He was air-evacuated to Letterman General Hospital on 10 June 1970 from Camp Zama, Japan.  He was initially hospitalized in Vietnam on 20 May 1970.  His transfer diagnosis was Acute schizophrenic reaction.  He was placed on gradually increasing doses of Thorazine and Haldol.  

		(2)  For the first two weeks of hospitalization, he remained extremely seclusive on the ward and felt that the television and radio were spying on him.  After a month's hospitalization he began to gain some insight into his illness and began interacting minimally on the ward.  

		(3)  During his fifth week of hospitalization, he began to show depressive symptoms of anorexia, insomnia, and occasional suicidal ideation.  At that time he was placed on gradually increasing doses of Elavil.  His suicidal ideation rapidly cleared and his mood improved over the next two weeks.  

		(4)  He then went on a 12-day convalescent leave on which he had no difficulties.  During the past week his Elavil had been gradually lowered and discontinued.  At the present time he was doing well on the ward and at work therapy and he was on Tindal.

		(5)  He was diagnosed with Schizophrenic reaction, paranoid type, acute, severe, improved.  It was recommended he be presented to a PEB.

   f.  An MEB Proceedings which shows a board convened on 13 August 1970 and considered his medical condition of Schizophrenic reaction.  The board determined he was mentally competent for pay purpose and had the capacity to understand the nature of and cooperate in board proceedings.  He was not a danger to himself or others and could be discharge to his own care.  The MEB recommended his referral to a PEB and that he be stationed near a psychiatric facility and no overseas duty assignment.  On 21 August 1970, he concurred with the findings and recommendations of the MEB.

   g.  A DA Form 199 which shows an informal board convened on 27 August 1970 and considered his medical condition of Schizophrenic reaction under the VASRD code 9203.  The board determined his condition was of sufficient seriousness to preclude satisfactory performance of duty.  The PEB recommended placing him on the TDRL with a net rating of 30% and reexamination in 12 months (September 1971).

5.  He further provided a copy of a VA Form 21-6796, dated 4 September 1970, which shows he was rated at 30% or more for Schizophrenic reaction, paranoid type, competent.

6.  He was honorably retired on 29 December 1970, under the provisions of Title 10, USC, section 1202, and he was placed on the TDRL.  He was credited with completing 3 years, 4 months, and 13 days of net active service.  

7.  His records also contain and he also provided copies of the following:

   a.  An SF 88 which shows he underwent a TDRL medical examination on 19 October 1971.  The form noted he had been diagnosed with a Schizophrenic reaction, paranoid type, acute.  He was determined not qualified for retention.

   b.  An SF 502, dated, 19 October 1971, which stated:

		(1)  He had made significant strides for himself in the social sphere.  He had only minimal residuals of his gross thought disorder and the severe psychotic symptoms he experienced.
		(2)  However, his work adaptation was somewhat shaky and only recently had he started to make a significant progress in his industrial adaptability.  His potential for successful functioning in the military was doubtful for the future.

		(3))  He did not meet retention standards according to Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  It was recommended he be presented to a PEB for consideration of continuing him on the TDRL.

   c.  An MEB Proceedings which shows a board convened on 19 October 1971 and considered his medical condition of Schizophrenic reaction.  The board determined he was mentally competent for pay purpose and had the capacity to understand the nature of and cooperate in board proceedings.  He was not a danger to himself or others and could be discharge to his own care.  The MEB recommended review by a PEB.  

   d.  A DA Form 199 which shows an informal board convened on 11 November 1971 and considered his medical condition of Schizophrenic reaction, paranoid type, slight, under the VASRD code 9203.  The board found him to be physically unfit with a combined rating of 10%.  The board recommended his separation from the service with severance pay.  On 15 November 1971, he concurred with the findings and recommendations of the PEB and waived his right to a formal hearing.  The PEB was approved on 21 November 1971.

8.  Letter Orders Number D12-564, issued by the Office of The Adjutant General, on 15 December 1971, discharged him with a 10% rating with entitlement to severance pay effective 16 December 1971.

9.  He also provided copies of the following:

   a.  A letter, dated 21 March 1971, wherein the VA advised him that his nervous condition was service-connected and he was awarded a 30% disability rating commencing on 30 December 1970.

   b.  A VA Form 21-6798, dated 22 February 1972, which stated he was removed from the TDRL on 16 December 1971.

   c.  A DD Form 215, issued by the ABCMR, on 5 May 2013, adding the following awards to his DD Form 214 ending on 29 December 1970:

* Bronze Star Medal with "V" Device and 2nd OLC
* Special Forces Tab
* Combat Infantryman Badge
* Vietnam Service Medal with one silver service star and two bronze service stars
* Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time, Appendix B, stated that for VASRD Codes 9200-9210, ratings would be assigned as follows:

   a.  Complete.  Members determined to have this degree of severity will most often be declared incompetent and, if not transferred to a VA hospital, be discharged to the care of a relative or guardian.  

   b.  Severe.  This will rarely be used since a condition which fulfills its criteria is usually more appropriately given a rating of "complete."

   c.  Considerable and Definite.  These degrees of severity are considered appropriate when the member has some potential employability.  A member's overall life-adjustment will be considered in a choice of the degree of severity.

   d.  Slight.  The "slight" degree of severity will be appropriately applicable subsequent to psychotic episodes, with or without residuals, when none of the foregoing are applicable.

   e.  The regulation did not contain any requirement to classify a mental disorder under the DSM II (in effect at the time).

11.  Title 10, USC, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30%.

12.  Title 10, U.S. Code, section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30%.

13.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  The VA has neither the authority nor the responsibility for
determining physical fitness for the military service.  It awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.




DISCUSSION AND CONCLUSIONS:

1.  The applicant began serving in Vietnam on 24 June 1968.  On 20 May 1970, he was hospitalized and diagnosed with a Schizophrenic reaction, paranoid type. In June 1970, he was evacuated to the United States for future hospitalization and treatment.

2.  An SF 502, dated, 11 August 1970, noted that he was hospitalized and placed on medication and his suicidal ideation rapidly cleared and his mood improved.  An MEB referred him to a PEB.  

3.  On 27 August 1970, the PEB considered his medical condition of Schizophrenic reaction under the VASRD code 9203.  The PEB recommended placing him on the TDRL with a net rating of 30% and reexamination in 12 months (September 1971).  He was honorably retired on 29 December 1970, under the provisions of Title 10, USC, section 1202, and he was placed on the TDRL.  

4.  On 19 October 1971, an MEB found his severe schizophrenic reaction had improved.  Based on this diagnosis, on 11 November 1971, a PEB found his disability to be slight and assigned a corresponding disability rating of 10%.  As a result, he was separated from the service on 16 December 1971 by reason of physical disability with entitlement to disability severance pay.

5.  There is no evidence of record and he has not provided sufficient evidence showing his disability was not properly rated in accordance with the VASRD.  His separation with severance pay was in compliance with law and regulations.  Therefore, there is insufficient evidence to support granting him the requested relief.  

6.  The award of a VA rating does not establish entitlement to a medical discharge and/or medical retirement from the Army.  Operating under its own policies and regulations, the VA awards rating because a medical condition is related to service (service connected).  In this case, he was evaluated and is being compensated for his service-connected medical conditions by the VA.








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 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)                                         AR20140006730





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ABCMR Record of Proceedings (cont)                                         AR20140006730



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