MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 23 May 2002
         DOCKET NUMBER: AR2001065973

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Mr. Mark D. Manning		Chairperson
Mr. Lester Echols		Member
Ms. Karen Y. Fletcher		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: That her administrative discharge be changed to a medical discharge and her reenlistment (RE) code be changed.

APPLICANT STATES: In effect, that post-traumatic stress disorder (PTSD) as a result of a sexual assault was the cause of her problems. She provides a 31 May 2000 letter from the Department of Veterans Affairs (VA) proposing to reduce her disability rating for PTSD from 50 percent to 30 percent as supporting evidence.

COUNSEL CONTENDS: Counsel makes no additional contention.

EVIDENCE OF RECORD: The applicant's military records show:

After having had 6 years of prior active service, she reenlisted in the Regular Army on 30 April 1986. She was promoted to Sergeant, E-5 on 11 December 1987.

On 16 August 1988, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for absenting herself from her appointed place of duty. She appealed the punishment (restriction and extra duty for 14 days each). Her appeal was denied.

On 23 November 1988, the applicant underwent a psychiatric evaluation that diagnosed her as having a personality disorder that represented a chronic, maladaptive pattern of behavior that was of sufficient severity as to result in a significant impairment in her continued ability to perform duty and function effectively in a military environment.

On 14 October 1988, the applicant’s commander initiated separation action on the applicant under the provisions of Army Regulation 635-200, paragraph 5-13, Personality Disorder.

On 17 October 1988, the applicant was advised by consulting counsel of the basis for the contemplated separation action. She requested consideration of her case by an administrative separation board, requested personal appearance before such a board, requested representation by counsel, and submitted a statement in her own behalf.

On an unknown date, the commander formally recommended the applicant’s separation for personality disorder. On 8 November 1988, the applicant was notified to appear before a board of officers.

On 16 December 1988, the applicant voluntarily waived consideration of her case by an administrative separation board but attached a statement (a full packet with tabs A – Mc) to be considered by the separation authority. She requested she be retained until her expiration term of service four months later. She stated that she had had some difficulty paying attention to detail or concentrating due to her taking pain killers to ease the pain from ovarian cysts. She had been counseled by medical personnel and taught to better improve her coping skills. She attended therapy every Tuesday at the Community Mental Health Center/Survivors Group for sexual assault and her counselor stated that she (the applicant) was now better able to cope with any problems she may encounter. One of her brothers was killed in a motorcycle accident in July 1988. She applied for a compassionate reassignment but her commander never forwarded the request. Instead, he initiated this separation action. Statements from two chaplains would attest to her state of mental and emotional well-being. She granted that her duty performance could have been better but she had performed under a great deal of stress and pressure and completed most of those task delegated to her.

A 19 December 1988 statement from the Behavioral Science Noncommissioned Officer, NCO in Charge of the Psychology Service, indicated that the applicant had been a member of the Survivors of Sexual Abuse Group Therapy Program since 25 October 1988. Initially, she was resistant to some of the information provided. However, with time she began to get the full view of what was being provided for her in those meetings. She had made progress in the therapy.

One chaplain stated that he had the occasion to observe the applicant under stress over grief for her brother’s death and the process of annulling her marriage but she appeared to be able to accept life and its troubles and to respond to necessary questions in a clear, lucid, and articulate way. The other chaplain stated that he met the applicant at the death of her brother. She coped with the denial of her request for a compassionate reassignment and was doing the best she could.

On 21 December 1988, the appropriate authority approved the recommendation and directed the applicant be discharged with an Honorable Discharge Certificate.

On 5 January 1989, the applicant was discharged, with an honorable characterization of service, in pay grade E-5, under the provisions of Army Regulation 635-200, paragraph 5-13, Personality Disorder, and was given an RE code of 3. She had completed 2 years, 9 months, and 6 days of creditable active service that period and a total of 9 years, 5 months, and 9 days of creditable active service with no lost time.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 5, paragraph 5-13, sets the policy and prescribes procedures for separating members with a personality disorder (not amounting to a disability) that interferes with assignment to or performance of duty when so diagnosed by a physician trained in psychiatry and psychiatric diagnosis.
Army Regulation 635-40 governs the evaluation of physical fitness of soldiers who may be unfit to perform their military duties because of physical disability. The regulation defines “physically unfit” as unfitness due to physical disability. The unfitness is of such a degree that a soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purpose of his employment on active duty. Paragraph 4-1 states that medical evaluation boards 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 qualification for retention based on the criteria in Army Regulation 40-501, chapter 3.

Army Regulation 40-501 governs medical fitness standards for enlistment, retention and separation. Paragraph 3-35 states that a personality disorder may render an individual administratively unfit rather than unfit because of physical disability. Interference with performance of effective duty in association with these conditions will be dealt with through appropriate administrative channels. Paragraph 3-33 states that for anxiety, somatoform, or dissociative disorders, the causes for referral to a medical evaluation board are persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization, necessity for limitations of duty or duty in protected environment, or resulting in interference with effective military performance.

The Diagnostic and Statistical Manual for Mental Disorders, 4^th edition (DSM-IV), categorizes PTSD as an anxiety disorder characterized by the reexperiencing of an extremely traumatic event accompanied by symptoms of increased arousal and by avoidance of stimuli associated with the trauma.

Title 38, U. S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service. The VA, however, is not required by law to determine medical unfitness for further military service.

Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge. Army Regulation 601-210 covers eligibility criteria, policies and procedures for enlistment and processing into the Regular Army (RA) and the U.S. Army Reserve. Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of armed forces RE codes, including RA RE codes.

RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable. This code applies to members who are separated for personality disorder and also to those separated for medical reasons (except for medical retirement, which requires an RE code of 4, a nonwaivable disqualification).
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

2. The applicant was diagnosed with a personality disorder by competent military medical authorities. By regulation, interference with performance of effective duty in association with these conditions will be dealt with through appropriate administrative channels.

3. The Board recognizes that the applicant attended therapy at the Community Mental Health Center/Survivors Group for sexual assault and recognizes that the VA has awarded her a disability rating for PTSD. However, there is no evidence of record to show she met the regulatory requirements for referral to a medical evaluation board for her PTSD, i.e., persistent or recurrent symptoms sufficient to require extended or recurrent hospitalization, necessity for limitations of duty or duty in protected environment, or interference with effective military performance. There is no evidence of record to show that it was the characterized symptoms of PTSD that interfered with her military performance. On the contrary, when the applicant provided her statement with her separation packet, she provided several statements of support that indicated she was coping fairly well with her trauma and grief.

4. The rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army. The VA, operating under its own policies and regulations, assigns disability ratings as it sees fit. The VA is not required by law to determine medical unfitness for further military service in awarding a disability rating, only that a medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the two concepts involved (i.e., the more stringent standard by which a soldier is determined not to be medically fit for duty versus the standard by which a civilian would be determined to be socially or industrially impaired), an individual’s medical condition may be rated by the VA as disabling and yet found not to be unfitting for duty by the Army.

5. Considering the reason for which the applicant was separated, the RE code of 3 given was appropriate. RE code 3 is also appropriate when a member is separated for disability, except for medical retirement, in which case RE-4 is appropriate. If the applicant wishes to consider reenlistment, recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria. They are required to process a request for waiver under the provisions of chapter 4, Army Regulation 601-210, Regular Army and Army Reserve Enlistment Program.

6. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__mdm___ __le____ __kyf___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001065973
SUFFIX
RECON
DATE BOARDED	20020523
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.