DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL. RECORDS

2 NAVY ANNEX

WASHINGTON DC 20370-5100

ELPDocket No. 8720-97
3 November 1999

This is in reference to your application for correction of your
naval record pursuant to the provisions of Title 10, United
States Code, Section 1552.

Your allegations of error and

A three—member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 14 October 1999.
injustice were reviewed in accordance with administrative
regulations and procedures applicable to the proceedings of this
Board.
Documentary material considered by the Board consisted of
your application, together with all material submitted in support
thereof, your naval record and applicable statutes, regulations
and policies.
opinion provided by the Department of Psychiatry, National Naval
Medical Center, Bethesda, MD, dated 19 January 1999, a copy of
which is attached.

Additionally, the Board considered an advisory

After careful and conscientious consideration of the entire
record, the Board found that the evidence submitted was
insufficient to establish the existence of probable material
error or injustice.

On 22 November 1972, about five months after your enlistment in
the Navy, you suffered serious injuries when the car you were
driving was hit by a truck.
killed in that accident.
admission to a naval hospital on 24 November 1972, stated that
after the accident you were taken to Norfolk General Hospital
with a serious head injury.
a bilaterally contused lung, a fracture of the left humerus, and
a fracture of the scapula.
made gradual improvement and were discharged to full duty on
29 January 1973.

Your uncle, who was a passenger, was
A narrative summary, prepared upon your

You were initially unresponsive with

During the course of treatment you

The record reflects that you reported for duty on board the USS
JOHN F. KENNEDY on 17 February 1973.
that you were examined on 2 March 1973 and were found physically
fit for mess cooking.
ship’s medical department on five occasions for minor ailments

Through May 1973, you were seen by the

The medical record reflects

which included a headache, chest cold, constipation, and an
injury to your left forearm.

During the eight month period from April to November 1973, you
received six nonjudicial punishments (NJP) for possession of
marijuana, three instances of absence from your appointed place
of duty, failure to obey a lawful order, sleeping in the crew’s
lounge, assault, and communicating a threat.
After your fourth
NJP, you were counseled regarding your unsatisfactory behavior
and warned that failure to take corrective action could result in
discharge under other than honorable conditions.

A 25 February 1974 medical record entry indicated you were seen
in sick bay for a headache.
the head with a “blackjack” in a police station about a week
before and, as a result, you had headaches and recurring episodes
of blurred vision.
concussion about a year ago before this incident.

You also reported you had suffered a

You reported that you were hit on

You received an adverse performance evaluation for the period
1 October 1973 to 1 March 1974.
The reporting senior stated that
you were an “infamous combination of inability, poor attitude and
an overall dislike of authority.”
adequate, when supervised, to non—existent when left alone.
had no initiative, other than to avoid work, and worked only
under a threat of the brig.
you were the worst Sailor in the entire department.
that you had quick fists and had been in several fights.
On one
occasion you attacked a shipmate in the berthing compartment and
on another, you allegedly attacked a petty officer and two police
officers at a Navy exchange gas station.

The reporting senior asserted that

Your work varied from

You

He stated

On 12 June 1974, prior to trial by court-martial, your defense
counsel referred you for evaluation of your mental competence.
The examining psychiatrist described you as a rational, coherent,
alert, oriented, cooperative, and polite young man who was fully
aware of the nature of the charges.
confidence in your attorney and showed no evidence of
disassociation, delusions, hallucinations, affective symptoms, or
organic brain dysfunction.
stand trial.

You were considered competent to

You expressed trust and

You received two more NJPs on 13 and 21 June 1974 for a one hour
period of unauthorized absence, absence from your appointed place
of duty, two instances of failure to obey a lawful order, breach
of the peace, and five instances of failure to muster.

On 2 July 1974 you were convicted by special court-martial of
10 specifications of absence from your appointed place of duty,
four instances of assault, and disobedience of a lawful order.
You were sentenced to confinement at hard labor for five months,

2

forfeitures of $217 per month for five months and a bad conduct
discharge.

Apparently, there

Upon arrival in the

On 29 July 1974 you were taken to the emergency room after you
said that you were thrown against your rack.
were no witnesses to this incident.
emergency room, you would not respond to questions and during the
general examination, you were in a supine position, grunting,
groaning and biting your lip.
you refused to stand saying “Can’t.. .can’t. . .can’t.. .put pressure
on my leg.”
in 90 degree knee flexion after sitting down and feigns absence
of strength in leg but when transferred to supine position had no
difficulty in doing so.”
normal limits.
spine was normal and you were malingering.
the brig.

The doctor’s concluded that your lower lumbar

Hip and sacral X-rays were within

The examining doctor stated that

You were returned to

He noted “no involuntary spasms.

Legs held rigidly

A medical record entry of 4 September 1974 indicates you
continued to complain of pain in your back which radiated down
the whole leg to your instep.
shown up for your medication and had been observed walking
normally.
left leg held out.
regions and were negative.
discussed with a doctor at a naval regional medical center, and
no physical reason could be found for your pain, abnormal gait,
or chronic headaches.
on whether you were malingering.

However, when seen in sickbay you hobbled with your

Therefore, no determination could be made

On 9 October 1974 your condition was

X—rays were repeated in the sacral and coccyx

It was noted that you had not

At that time, you denied

The examining psychiatrist noted that you were

On 15 October 1974, the local clemency and parole board requested
a psychiatric evaluation.
You repeatedly refused to be seen and
stated that you did not want clemency or parole, but on
16 October 1974 you were evaluated.
malingering and stated that you had not received the kind of help
you needed.
unwilling to accept the opinion of the medical officer or
consultants that there was no organic basis for your complaints.
When asked whether there might be a psychophysiologic component,
you stated that confinement may have contributed to the problem.
The examining psychiatrist noted that when you spoke of the 1972
accident, you claimed that you fractured your pelvis, received a
brain concussion, and broke seven ribs.
An evaluation of your
mental status revealed that you blamed your problems on racial
prejudice, but stated that this was secondary to your feGlings
that you had been deprived of your freedom by being sent to sea
and being confined.
The examining psychiatrist opined that there
was no evidence to support a diagnosis of neurosis, psychosis, or
organicity, but there was a strong psychological component to
your orthopedic problem.
clemency but believed that you could finish the remaining nine

You stated that you did not want

3

months of your enlistment.
requested that the bad conduct discharge be suspended and you be
restored to duty.

However, on 17 October 1974 you

Your received your ninth NJP for failure to obey a lawful order
on 16 December 1974.
denied on 22 January 1975.

Clemency and restoration to duty were

X—rays were taken and an orthopedic consultation
This evaluation suggested that you either

On 12 February 1975, you were admitted to the hospital
complaining of severe back pain and an inability to move your
arms and legs.
was requested.
suffered a conversion reaction or were malingering.
laboratory data were within normal limits.
treated with individual and group therapy, without any
medication, the staff was convinced that your behavior was
consciously manipulative and you were diagnosed as having .a
passive—aggressive personality disorder with overt manipulation.
It was concluded that your long-standing personality disorder
rendered you unsuitable for useful service, repeated episodes of
passive—aggressive behavior could be expected, and neither
psychiatric hospitalization nor outpatient psychotherapy was
warranted.

You were recommended for return to duty.

All

After you were

On 16 June 1975, the Navy-Marine Corps Court of Military Review
(NMC~MR) affirmed the findings and sentence of your 2 July 1974
special court-martial.
One judge dissented from that decision.
The Court of Military Appeals denied a request for review on
5 September 1975 and you received the adjudged bad conduct
discharge on 10 October 1975.

Your medical record reflects that on 8 September 1977, nearly two
years after your discharge, you went to the Portsmouth Naval
Hospital emergency room complaining of back pain.
At the time,
your status was unknown to the hospital staff and you were told
to return the following morning for evaluation.
You left only to
return a short while later where you collapsed after firing a .22
caliber pistol into your shoulder.
minutes and complained of severe headaches, longstanding
backaches, and an inability to move your right arm.
treating your wounds, records were reviewed and it was noted that
you had made similar complaints in the past and been diagnosed
with a passive—aggressive personality with overt manipulation.
The medical record indicates that you were to be transferred to a
civilian hospital for follow-up general surgery and psychiatric
evaluation.

You were revived within

After

The post—service medical records which you have provided show
that you were referred for admission to a hospital on 4 February
1982 by a mental health center after you claimed to be depressed
and had attempted suicide in the past.

However, you failed to go

4

She said that you were in a coma for about

After being involuntarily committed, a psycho-

You failed to follow—up on this because you were

to the hospital, but went to the local police station instead,
where you claimed that you would commit a crime if you were not
hospitalized.
logical evaluation conducted on 20 February 1982 indicated that
your mother stated that you were well adjusted until the 1972
automobile accident.
three days and had not been “right” since then, had not done well
socially or in jobs since discharge, and had been hostile toward
your family.
You reported that you suffered from headaches since
1974 which had increased in intensity since 1980.
that you saw a neurologist in Maryland in 1980, at which time you
underwent a “brain scan” which revealed a mass in your right
brain area.
never able to obtain certain Navy medical records.
referred to the neurology clinic for evaluation, where an
electroencephalogram (EEG) and other tests were within normal
limits.
However, your scores on neuropsychological testing did not equate
with reported educational and vocational achievements.
results suggested a strong emotional component underlying your
performance.
condition related to the automobile accident, but a neurological
work—up, including a brain scan, would be necessary to make such
a determination.
You were discharged from treatment on 12 March
1982 with diagnoses of dysthymic disorder; dependent personality
traits; and possible left cerebral hemisphere disorder.
noted that several days after discharge from treatment, you
returned and requested that the hospital complete a physical
examination form for social security disability, stating that
your job was not working out.
examining psychiatrist suggested the possibility of malingering,
and that your goal during the foregoing hospitalization may have
been to avoid work and obtain disability benefits.

An extensive neurology work—up was also normal.

You claimed

You were

These

It was

It was felt there might be an organic brain

A retrospective analysis by the

Outpatient records from the District of Columbia General
Hospital, essentially a compilation of progress notes of your
treatment from 1986 through 1989, indicate that you were
diagnosed with paranoid schizophrenia in 1986.

Further, the opinion states that those records do

The advisory opinion of 19 January 1999 states that a review of
available medical records does not substantiate a diagnosis of
schizophrenia.
not suggest that your head injury and subsequent mental problems
were a contributing factor in the multiple disciplinary
infractions and subsequent court—martial conviction.
was opined that medical records from 1986 to 1987 substantiate a
personality disorder with paranoid, schizoid, antisocial,
histrionic, and narcissistic traits.

However, it

Prior to responding to the foregoing advisory opinion, counsel
referred your records to a psychiatrist, who opined that you

5

The psychiatrist noted that

experienced a profound psychological trauma in the 1972 accident,
and that the abrupt change in your behavior upon your assignment
to the JOHN F. KENNEDY suggested that you were dominated by a
wish to be punished in order to relieve the feelings of guilt
associated with your uncle’s death.
you had been diagnosed as a paranoid schizophrenic, presumably
during a course of vocational rehabilitation in the mental
hygiene system, but little descriptive evidence was found of this
disorder in the progress notes of your outpatient treatment
records.
The psychiatrist believes that you developed a major
psychiatric disorder, best described as chronic post traumatic
stress disorder (PTSD) and a paranoid personality disorder.
further opined that with the history of a head injury and
continuing symptoms pertaining to your central nervous system,
an organic brain syndrome should not be ruled out.
although repeated neurologic examinations did not conclusively
suggest a localized lesion, a current brain scan with careful
neurologic examination would clarify this possibility.

He noted that

He

The Board specifically noted

In its review of your application the Board conducted a thorough
review of both service and medical records, and the post-service
medical records you provided.
counsel’s contentions to the effect that prior to the 1972
accident you were fully functional, the accident left you
psychologically traumatized due to your uncle’s death, your
performance and conduct declined to an unacceptable level as a
result of the trauma, your mental condition was never properly
diagnosed until after your discharge, and you have been mentally
disabled and marginally employable since 1972.
that your undiagnosed disabilities were at the root of your
inability to conform to the requirements of Naval discipline, and
led to your punitive discharge.
The Board noted that all of your
disciplinary problems occurred after the 1972 automobile
accident, and counsel’s argument that without proper counseling,
you dealt with your grief by inappropriately rebelling and
disregarding established rules of conduct.
that every time you were examined, your reported the automobile
accident but not the death of your uncle.
Counsel asserts that
this shows the grief you felt over his death, and further noted
that you experienced additional grief when your father died 13
months later.
presume, given the absence of the hospital medical records, that
when you reported aboard JOHN F. KENNEDY, the chain of command
and medical personnel were unaware of the injuries and
psychological trauma.
assertions
administrative discharge after your third NJP when you would have
been eligible for a general discharge and, had this occurred, you
never would have been court—martialed.
had the effects of your head injury been known at the time of
your court—martial, you might not have been convicted or, even if

Counsel also asserts that it is reasonable to

that you should have been processed for an

The Board also noted that counsel’s

Counsel asserts

Counsel points out

Counsel also claims that

6

you were, a bad conduct discharge would not have been imposed.
Counsel further asserts that the presence of a serious
undiagnosed mental disorder constitutes strong support for
disability retirement, or at the very least, a separation under
honorable conditions.

While the Board agrees that you most

Neither the evidence of record nor the evidence

After careful consideration of the foregoing, the Board concluded
that the foregoing factors and contentions, were insufficient to
warrant disability retirement or recharacterization of your
discharge given your record of nine NJPs and a special court-
martial conviction.
The Board could not agree with counsel’s
contentions that the 1972 automobile accident caused
psychological trauma which developed into a major psychiatric
disorder rendering you incapable of conforming to military
discipline and authority.
probably did suffer some degree of psychological trauma as a
result of the death of your uncle and the injuries you sustained
in the automobile accident, those factors did not excuse
subsequent misconduct or relieve you of responsibility for your
actions.
submitted in support of your application provides any indication
that you were unable to distinguish right from wrong, or suffered
from a condition which excused you of responsibility for your
actions.
martial conviction you were found competent and no evidence of
disassociation, delusions, hallucinations, affective symptoms, or
organic brain dysfunction was found.
determine with certainty whether the court was aware of your
automobile accident, but it appeared that since your defense
counsel ordered a competency evaluation, he most likely was aware
of the accident and would have offered such information as a
matter in extenuation and mitigation.

The Board noted that prior to your special court—

The Board could not

The Board noted that post-service hospital records in 1982
suggest that you may have an organic brain condition related to
the automobile accident.
However, a conclusive diagnosis cannot
be made without further neurologic examinations and a brain scan,
and you apparently have not undergone any such examination.
The
Board also noted that post—service records indicate that you were
diagnosed as a paranoid schizophrenic sometime in 1986/87.
However, this diagnosis appears to be questionable since neither
the advisory opinion nor counsel’s psychiatrist found little
descriptive evidence of this disorder in the outpatient records
provided.
in the various medical records that you were a manipulative
malinger.

The Board also could not ignore the multiple notations

With regard to your psychiatrist’s opinion that you suffered from
PTSD, a paranoid personality disorder and a possible organic
brain syndrome, the Board noted that like the other doctors who
evaluated you subsequent to your discharge, he did not observe

7

While your psychiatrist

However, personality disorders are not disabilities

It appeared to the Board that your physical problems

you during the time of your service.
believes you suffered from PTSD, such a diagnosis has not been
confirmed by psychological testing.
Even if you suffered from
PTSD, such a disorder would not normally excuse misconduct.
You
were diagnosed as having a passive aggressive personality during
service.
under the law for which an individual may be processed for
physical disability and, once again, do not excuse misconduct.
While medical records document a number of physical problems
after the accident, medical authorities believed they were
psychological in nature since no organic basis could be found for
your pain.
did not warrant referral to the physical disability processing
system.
discharge would have terminated any such processing.
was not persuaded, now 25 years later, that you suffered from any
mental condition of such severity that it excused you of
responsibility for the misconduct which led to your conviction
and discharge.
discharge were effected in accordance with applicable law and
regulations and the discharge appropriately characterizes your
service.
much misconduct to warrant recharacterization of your discharge
to under honorable conditions.
been denied.
will be furnished upon request.

The Board further concluded that you were guilty of too

The names and votes of the members of the panel

Accordingly, your application has

Even if they did, your court-martial conviction and

The Board

The Board concluded that your conviction and

It is regretted that the circumstances of your case are such that
favorable action cannot be taken.
Board reconsider its decision upon submission of new and material
evidence or other matternot previously considered by the Board.
In this regard, it is important to keep in mind that a
presumption of regularity attaches to all official records.
Consequently, when applying for a correction of an official naval
record, the burden is on the applicant to demonstrate the
existence of probable material error or injustice.

You are entitled to have the

Enclosure

Copy to:
Mr. Kevin J. Barry
Attorney at Law

Sincerely,

W. DEAN PFEIFFER

Executive Director

8

MEMORANDUM

19 January 1999

From: Geoffrey M. Gabriel, MD, CPT, MC, USAR, Department of Psychiatry,

National Naval Medical Center

To:

Chairman, Board for Correction of Naval Records

Via: CAPT W. P. Nash, USN, Specialty Advisor for Psychiatry, U.S. Naval

Hospital, San Diego, CA 92134-5000

Subj: REQUEST FOR COMMENTS AND RECOMMENDATION IN THE CASE

OF IN THE CASE OF~mi~1II1L ~1~JJINI~IUr

.

Ref:

(a) 10 U.S.C. 1552

End:

(1) BCNR File
(2) Service Record

1. The following medical records have been reviewed:

- Hospitalization at Dorothea Dix Hospital, 1982.
- Naval Regional Medical Center Branun Dispensary, Naval Station Correctional

-

-

-

-

Center, 1974.
Sick Call, USS John F. Kennedy, 1973-1974.
Enlistment Medical Examination 21 April 1972.
Psychiatric Evaluation, Naval Hospital Portsmouth, 12 June 1974.
Prisoner’s Progress Summary Naval Station Correctional Center, Norfolk, VA 1~
October 1974.

- Neuropsychiatric Service Discharge Summary, Naval Regional MC, Portsmouth,

VA, 14 February 1975.

- Outpatient Medical Records, District of Columbia General Hospital 1986 to 1987.

2. The following records were incomplete:

- Narrative Summary, Norfolk General Hospital, November 1972.
- Narrative Summary, Naval Hospital Portsmouth, January 1974.
- Discharge summaries or Progress notes for previous psychiatric hospitalizations

as noted in Discharge summary, Portsmouth Naval Hospital and St. Mary’s
Hospital (1977), Doreothea Dix Hospital, 12 March 1982.
Report of evaluation by civilian psychiatrist as noted in D.C. General Hospital
progress note dated 01 April 1987.
Radiological report of a “brain scan” reported by Mr. Kelly to have performed in
1980. (referred to in D.D. it discharge).

-

-

-

-

-

Summary note(s) by a neurologist who evaluated i
D.D.H discharge summary).
Summary of psychiatric follow-up at Wake County Mental Health Center in 1982.
Summary of psychiatric intake performed at Moore County Mental Health Center,
03 February 1982.

T n l980(referred to in

3. Review of the above records does not demonstrate a diagnosis of schizophrenia. In

addition, the medical records do not demonstrate evidence suggesting that the
patient’s head injury and subsequent mental problems were a contributing factor in
multiple disciplinary infractions leading to court-martial.

4. Medical records from outpatient psychiatric treatment at the District of Columbia

General Hospital from 1986 to 1987 do demonstrate evidence of a personality
disorder with paranoid, schizoid, anti-social, historic, and Narcissistic traits. (DSM-
IV).

CPT, MC, USAR
Psychiatry Resident

~—-~-

~

~

~i7

T. !~OWATT
LT, MC, USN
Staff Psychiatrist