Discharge Review

[john999]

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.

[Wings]

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 October 19, 2006 by Wings

[john999]

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.

[Pete53]

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.

[Wings]

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

[john999]

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.

[Wings]

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 October 19, 2006 by Wings