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Discharge Review


john999

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  • HadIt.com Elder

I am asking the Discharge Review board to grant that I was discharged because of medical reasons. I have the SMR's that show diagnosis and treatment for a emotional disorder including a hosptialization. I also have a psychiatrist's report that reviewed my SMR's and says that the military misdiagnosed me with a personality disorder and not the panic and dissocosiative disorder that started in Vietnam. The lawyer I talked to told me not to get my hopes up but that I should try and send the board something to beef up my appeal. The board has my medical records now. Any ideas on what would be good to beef up my evidence to change the nature of the reasons for discharge. I was given a discharge due to unsuitability which is bogus because I had already been in the service for 28 months. The concept that I was having a relapse back to the condition that got me in the hospital never entered the Army's mind.

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John you should get your congressman involved with this process. I think you have a good basis to get the discharge changed because the original discharge was based on wrong diagnosis. The board should change the discharge.

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  • HadIt.com Elder
I am asking the Discharge Review board to grant that I was discharged because of medical reasons. I have the SMR's that show diagnosis and treatment for a emotional disorder including a hosptialization. I also have a psychiatrist's report that reviewed my SMR's and says that the military misdiagnosed me with a personality disorder and not the panic and dissocosiative disorder that started in Vietnam. The lawyer I talked to told me not to get my hopes up but that I should try and send the board something to beef up my appeal. The board has my medical records now. Any ideas on what would be good to beef up my evidence to change the nature of the reasons for discharge. I was given a discharge due to unsuitability which is bogus because I had already been in the service for 28 months. The concept that I was having a relapse back to the condition that got me in the hospital never entered the Army's mind.

John, It would help my research (into the Board decisions) to know: Are you currently service-connected for Panic Disorder? PTSD? Disassociative Disorder?

As you know, mis-diagnosis was the norm for many combat traumatized vets. ~Wings

Edited by Wings (see edit history)
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  • HadIt.com Elder

Please remember, that even if you do manage to change the reason for discharge to medical, and the military awards medical disability - they would first have to apply a % rating and the back pay would be "offset" from your VA Comp.!

When I went up against the AFBCMR and AFDRB for my Character of Discharge, I weighed the financial benefits of military "disability retirement" and my current VA Disability Comp. won out on every count! The only thing it served me, was to save my good name.

Afterwards, just like Terry said, there was no external reward for the good fight.

Battling these military boards is majorly stressful on the brain. ~Wings

Edited by Wings (see edit history)
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  • HadIt.com Elder

Wings and Others

I only got 10% from VA for about 20 years. If I got pension from military might I not be ahead of the game even if their is an offset? I started with a 28$ a month compensation from the VA. I did not get 30% until the mid ninties. I don't care about my good name. I just want the money. That is why I filed CUE back to discharge. I thought I might have a chance with the board or the VA. They are all a bunch of lying jerks so the only way to get justice is to get paid. I have an honorable discharge. I am also at the board to get a combat award I did not get even though I was assigned an 11B1Y MOS for a period in RVN.

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  • HadIt.com Elder

Yes, Wings I am service connected for those conditions and more. My last rating listed five conditions including PTSD, panic and dissociative disorder. So the VA slapped a main diagnosis of schizophrenia on me.

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I have been studying a case of a Lexington Ky Vet who served 2 tours in Iraq and was being sent for a third. The guy developed PTSD and boogied to Canada and was declared a deserter. He finally came back to Ft Knox and his attorneys worked out a deal with the DOA. He was discharged with a BCD ( not a Big Chicken Dinner) which is a OTH and is in process in applying for a General under honorable conditions while undergoing treatment at an undisclosed facility for PTSD.

Had that been the case for a RVN Vet they would have probally charged with desertion, Spent time in Levanworth and dishonorable Discharge.

My, how things have changed over the years.

Hang in there John and keep on chopping. Worry is a disability in itself for it eats at a person, causes Hypertension, aggrevates PTSD and can be serious. Nothing calmes the nerves like a posative decision an large retro check. Peace of mind is the best cure for anyone.

For me, as I wait by the mailbox, The Worry eats at me like a parasite. I try to do other things but the lure is too strong. I worry if I have missed anything and average being awake for 20 hours per day and spend more than 15 hous per day reviewing the files and med information. I have not been diagnossed with PTSD but it cant be too far away. Mi wife thinks I am obsessed with this stuff and I believe her.

John

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  • HadIt.com Elder
For me, as I wait by the mailbox, The Worry eats at me like a parasite. I try to do other things but the lure is too strong. I worry if I have missed anything and average being awake for 20 hours per day and spend more than 15 hous per day reviewing the files and med information. I have not been diagnossed with PTSD but it cant be too far away. Mi wife thinks I am obsessed with this stuff and I believe her.

I am sitting here laughing with you and not at you. I needed that one!!

You made my day! I will quit filling sorry for myself for a few minutes and go make me some coffee.

Always,

Josephine

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  • HadIt.com Elder

x

x

x

Boards of Review Reading Rooms

http://boards.law.af.mil/

Army Boards

http://boards.law.af.mil/ARMYboards.htm

*Army BCMR or Army DRB (search options)

Search Term: PTSD and disability retirement

First Example found:

[1999030139.rtf] ... for correction of military records Exhibit B - Military Personnel Records (including advisory opinion, if any) APPLICANT REQUESTS: Physical disability retirement. He also requests that the two awards of the Distinguished Flying Cross (DFC) that he received, be upgraded to either a Silver Star or a Distinguished ... http://boards.law.af.mil/ARMY/BCMR/CY1999/30000-30999/1999030139.rtf ://http://boards.law.af.mil/ARMY/BCMR/...999030139.rtf ://http://boards.law.af.mil/ARMY/BCMR/...999030139.rtf

09/12/00, 65062 bytes

See Attached MEMORANDUM OF CONSIDERATION

1999030139.rtf

Edited by Wings (see edit history)
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  • HadIt.com Elder

Looks to me like Bush and Cheney have a better chance of getting into Heaven than a Veteran has of getting his Military Discharge changed?

John I wish you the best as you know I think I should of gotten a Medical Discharge also

Pete

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  • HadIt.com Elder

Pete

About the same chance of me getting my CUE and retro ,but what the heck I have nothing but time.

I went for my ultrasound of the leg veins today. I won't know anything until I talk to the vascular surgeon.

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  • HadIt.com Elder

x

x

x

John,

It may not be impossible!

Research the Military's PRESUMPTION OF FITNESS RULE !

Army Regulation 40-501 provides that for an individual to be found unfit by reason of physical disability, he must be unable to perform the duties of his office, grade, rank or rating.

I posted the case below to show the basic difference between the military's "presumption of fitnesss" - and the VA's "presumption of soundness" under 38 U.S.C. § 1111 (2000).

If you can show that you were unable to "perform" - prior to discharge, then you have cracked their first line of defense ! What did your Discharge Examination show? It would help if your psychaitrist would evaluate service medical records (and all related evidence) and comment on your "fitness for duty" prior to discharge.

Overcoming the presumption of Fitness - - Application of the Presumption of Fitness Rule does not mandate a finding of fit ! It is a rebuttal presumption that is overcome if the preponderance of evidence establishes the circumstances described below per DOD Instruction 1332.38.

Acute, grave illness or injury: Within the presumptive period an acute, grave illness or injury occurs that would prevent the member from performing further duty if he or she were not retiring; or

Deterioration of a chronic condition: Within the presumptive period a serious deterioration of a previously diagnosed condition, to include a chronic condition, occurs and the deterioration would preclude further duty if the member were not retiring; or

Inadequate duty performance: The condition for which the member is referred is a chronic condition, and a preponderance of evidence establishes that the member was not performing duties befitting his or her experience in the office, grade, rank, or rating before entering the presumptive period.

see http://www.west-point.org/users/usma1991/48648/peblegal.htm

see also http://www.hood-meddac.army.mil/default.as...;vi=n&mnu=2

see Attached "Information Paper"

Presumption of Sound Condition:

Aggravation of a Disability by Active Service

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

SUMMARY: This document amends the

Department of Veterans Affairs (VA)

adjudication regulations regarding the

presumption of soundness of a veteran

by adding a requirement that, in order

to rebut the presumption of soundness

of a veteran on entrance into active

service, VA must prove not only that the

condition existed prior to entrance into

active service, but also that it was not

aggravated by the veteran’s active

service. This amendment reflects a

change in VA’s interpretation of the

statute governing the presumption of

sound condition, and is based on a

recent opinion of VA’s General Counsel

as well as a recent decision of the

United States Court of Appeals for the

Federal Circuit. The intended effect of

this amendment is to require that VA,

not the claimant, prove that the

disability preexisted entrance into

military service and that the disability

was not aggravated by such service

before the presumption of soundness on

entrance onto active duty is overcome.

DATES: Effective Date: May 4, 2005.

info_paper_PDES_overview_1_.doc

Edited by Wings (see edit history)
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  • HadIt.com Elder

Wings

I never had a discharge physical. I was just kicked out via 635-212. I was seeing a shrik at them time I was discharged but those records seem to have vanished. I had a shrink review my SMR's and I will have to re-read them to figure out what she said about my state of mind at discharge. The shrink said I was suffering from severe emotional problems starting in Vietnam and continuing until the present. Let me read the report again and I will get back to you.

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  • HadIt.com Elder

Wings, I never had a discharge physical.

That action, in itself, was arbitrary, capricious, an abuse of discretion - and not otherwise in accordance with law and regulation !

I was just kicked out via 635-212.

Search Army BCMR for "AR 635-212" http://boards.law.af.mil/ARMYboards.htm

I was seeing a shrink at them time I was discharged - but those records seem to have vanished.

Have you sent for your out-patient mental health records through NPRC ???

I had a shrink review my SMR's and I will have to re-read them to figure out what she said about my state of mind at discharge. The shrink said I was suffering from severe emotional problems starting in Vietnam and continuing until the present. Let me read the report again and I will get back to you.

S/he needs to use the DSM IV !! S/he should be able to comment on your then "presumtion of fitness" ie. unable to perform the duties of office, grade, rank or rating. The legal standard should be "as likely as not" - unfitness or unsuitability for duty was caused by [Vietnam, Combat, PTSD, Anxiety Neurosis, Schitzophrenia, Insanity, other mental or physical disability]. Can you show unfitness for regular duty by way of a transfer, change of assignment, hospitalization, performance reports, some other lawful order to resign your post, etc.?

~Wings

Army Regulation 635-212, then in effect [during the Vietnam War], set forth the policy and procedures for the administrative separation of enlisted personnel for unfitness [or] unsuitability. It provided, in pertinent part, for the discharge due to unsuitability of those individuals with character and behavior disorders and disorders of intelligence as determined by medical authority [The DSM was first published in 1952. The expanded DSM-II was released in 1968]. 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.

Army Regulation 635-200 is the current regulation governing the separation of enlisted personnel.

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 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.

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.

P.S. I searched and researched the web trying to find a copy of the now obsolete AR 635-212. No such luck. I went to Army Publishing, emailed for a copy and my email was returned as undeliverable. I suggest you get a hard copy somehow; compare the old regulations with the new. Food for thought.

Edited by Wings (see edit history)
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Wings

I was transferred from a military mental ward in Colorado to a new duty station at Hunter Army AirField in Georgia because it was closer to my home. I only lasted about eight months before I was kicked out from my new duty station. The psychiatric records from my last duty station are lost. I had excellent efficency reports until I got to HAAF and then I went downhill and got unsatisfactory evaluations prior to being tossed out. I had been in the Army for 28 months and had been seen by a shrink in Vietnam, Ft. Lenordwood and a military hospital in Colorado before going to Hunter where I also saw a shrink. I was a basket case so to speak. I was up for a special court martial so the military lawyer told me to sign for the 212 or face jail time for disobeying a direct order. It was all BS. They just wanted me out with as little fuss and cost as possible. I signed the paper and was out inside of three days, no physical, no nothing. I had the clothes on my back and a ride to the gate. I am looking into your suggestions. I got a general discharge under honorable conditions which I had upgraded to an Honorable discharge a few years later. My head had been turned completely around and I did not know which end was up for years. I did file within one year of discharge for a disability and got 10%. The VA should have considered me for IU since my doctor said I was IU but the VA did not even consider this. This is why I may have a CUE in my opinion. The VBM says that if there is anything in your record to indicate the potential for IU the VA has to consider it. I am coming at them from both ends prior to discharge and post discharge.

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  • HadIt.com Elder

I talked to a Major who was a shrink and he wrote in my SMR's that I should be sent home. Nothing ever happened.

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  • HadIt.com Elder
I talked to a Major who was a shrink and he wrote in my SMR's that I should be sent home. Nothing ever happened.

Pete, Do you mean to say that the Military took no actions per his request? So, you stayed? Adora

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  • HadIt.com Elder

Pete

I am taking a swing at it but I am not betting the farm on them making mine a medical retirement. It has been too long and my discharge has already been upgraded once. There is a 15 year limit that you have to get over if you wait. The board has to decide there was an injustice and error of law. It was just too easy to talk ill vets into taking a quick unsuitable discharge so there would be no cost to the military. I saw a shrink for ten minutes in Vietnam and he said "send him home" and they sent me right back to duty.

I think the reasoning was if they let crazy people get sent home every guy is going to try and act nuts to get sent back.

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  • HadIt.com Elder

John, You sound a lot like me, only I went out under AFR 39-10 !

Your case is unlike the posted below http://boards.law.af.mil/ARMY/BCMR/CY1999/.../1999030139.rtf -- because your SMR's AND your Service Personnel Records show emotional and behavior problems: solid diagnostic criteria.

No matter how many issues I raised for the AFDRB (to include Attorney Incompetence, Signing under Duress, Unlawful Command Influence, etc), the main issue that decided my case was the lack of a complete psychiatric examination "despite numerous indications" that I needed one! I had been treated by both military and civilian shrink types prior to discharge. None of them were a bonafide Psychiatrist.

Hey, I found a 1973 copy of AR 635-200 (which completely revised the AR 635-212);

herein it states:

Section III. MEDICAL PROCESSING

Chapter 13-10. Medical evaluation.

When an individual

is to be processed for separation, the unit

commander must insure that an appropriate

medical evaluation and mental status evaluation

are obtained. Sufficiently detailed information

about the reasons for considering the

individual unfit or unsuitable will be furnished

to allow the medical examiners a thorough

understanding of the contemplated action.

What kind of RE Codes and SPIN numbers were typed into your DD-214? You don't have to share those here, but wanted you to know that most of the SPIN practice was declared unlawful two decades ago, and you can raise those issues as well. Raise as many issues as you can becuase the Boards are only going to hammer on one or two and you can keep appealing until they address them all.

ONE MORE THING . . . If you can, do raise the issue of INSANITY - - that really raises the bar for THEM to hurtle. Think about it!! ~Wings

Edited by Wings (see edit history)
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Wings

Is it possible that the personality disorder disorder regs are not an issue. I thought that John was re-diagnosed and later service connected. Aren't there regs that apply to a change of diagnopsis or re-diagnosis that the review boards have to consider. You know I have given this much thought over the years. It is all baried so deep in my brain it would take explosives to dig it up.

Wings, see my post on social chat

Edited by Hoppy (see edit history)
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  • HadIt.com Elder
Wings

Is it possible that the personality disorder regs are not an issue. I thought that John was re-diagnosed and later service connected. Aren't there regs that apply to a change of diagnopsis or re-diagnosis that the review boards have to consider. You know I have given this much thought over the years. It is all baried so deep in my brain it would take explosives to dig it up.

Wings, see my post on social chat

Hoppy, I don't have a lot of experience with the boards, just my case and John C's, ADAF Hadit member , BUT I have read (dare I say) hundreds Board decsions ... And that's what I reccomend to anyone before they advance their docket: read HUNDREDS of cases before your final appeal because these guys have heard it all!!

Honestly, if the newer regulation is significantly superior to the old regulations in terms of fairness and justice, "equity and propriety" (the silver bullets) - then they CAN apply the new Reg's sympathetically but they don't have to if they don't want to! Whatever the old regulation stated, they can and will apply literally and without mercy.

These Military Review Boards are NOT the same as the DVA and there is no love lost between the two: they will tell you over and over that each has their own statutes.

The Board will tell you that a VA diagnosis can change over time, for better and worse, and that "what is diagnosed 30 years later" is of no consequence to the military mission. I think you have to beat them on PROCEDURE. Did they follow their own rules? And, the procedures for dealing with injury disability (psychologically and otherwise) WHILE active duty are mapped out in their own regulations.

Depending on the years served active duty, military regulations can range from the sublime to the absurd !

I don't know what YEAR John was discharged (need to find that out), but after spending no less than 5 hours trying to track down the now obsolete AR 635-212, with NO ON-LINE references, I suspect it was an truly ABSURD regulation: one that caused untold grief and man hours !

Can you imagine the VOLUMES of Military rules and regulations that have gone down in history; what a nightmare LOL!

New Laws are supposed to be superior to the old, that way we know we're EVOLVING - right?!

The last pleading before the board is for Clemancy ... but not first ...

It's gettn' late, Good-night ;-) ~Wings

JOHN999 - - there's some good old regs from your war years here: Collections/Army Regulations

AR 40 Medical Services

AR 600 Personnel-General

AR 635 Personnel Separations

AR 635 Personnel Separations

AR 635-40 Physical Evaluation for Retention, Retirement, or Separation Feb 1975 (28.3 MB .PDF)

AR 635-100 Officer Personnel May 1989 (18.7 MB .PDF)

AR 635-200 Enlisted Personnel Oct 1982 (38.3 MB .PDF)

AR 635-200 Enlisted Personnel Jul 1966 (93.9 MB .PDF)

Pentagon Library http://www.hqda.army.mil/library/homepage.htm

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