MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 17 December 2002
         DOCKET NUMBER: AR2002075463

         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
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Luther L. Santiful		Chairperson
Ms. Barbara J. Ellis		Member
Mr. William D. Powers		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 the nonjudicial punishment (NJP) he received be set aside, that his rank be restored, and that his records be corrected to show that he was separated by reason of physical disability.

APPLICANT STATES: In effect, that NJP was given without consideration of his medical condition and the fact that his actions were a direct result of his bi-polar disorder. He continues by stating that it has taken many years to get a proper diagnosis of his condition but he has now been diagnosed by a civilian physician as having a bi-polar disorder. He contends that had he been properly diagnosed while in the Army, he would not have been punished, but would have been separated by reason of physical disability. He also states that his record of service will bear out that his actions were out of the ordinary for him and that his command praised him for his efforts to overcome his problems. In support of his application he submits a letter from a civilian psychiatrist.

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

He was born on 6 November 1960 and enlisted on 2 June 1987, for a period of 3 years and training as an administrative specialist. He was married with two dependents at the time of his enlistment. He successfully completed his training at Fort Jackson, South Carolina, and was transferred to Fort Hood, Texas, on 27 November 1987. He was advanced to the pay grade of E-4 on 1 November 1988.

On 19 June 1989, NJP was imposed against the applicant for being absent without leave (AWOL) from 2 May to 9 May 1989. His punishment consisted of a reduction to the pay grade of E-3, a forfeiture of pay (suspended for 6 months), an oral reprimand and extra duty.

The applicant was command referred and underwent a psychiatric evaluation on 3 July 1989. He was enrolled in and completed a Combat Stress Control Component Course conducted by the Division Social Worker and was diagnosed as going through a phase of life problem. He was also deemed mentally responsible and able to distinguish right from wrong and to adhere to the right. He was recommended for restoration to full duty. His commander counseled him on 5 July 1989 and congratulated him for completing the course. He encouraged him to make his follow-up appointments with the Mental Health Service and informed the applicant that he considered him a great asset to the unit.

His second child was born on 24 September 1988. Meanwhile, the applicant received orders transferring him to Korea. On 13 December 1988, the applicant submitted a request for deletion from the assignment to Korea due to extreme family problems (health problems with his new born child). The request for deletion was approved on 7 February 1989 and he was granted stabilization at Fort Hood until February 1990.
He was again advanced to the pay grade of E-4 on 1 September 1989.

On 31 October 1989, he was granted a waiver of lost time in order to reenlist for a period of 2 years and stabilization for a period of 6 months.

The applicant again went AWOL on 4 December and on 9 December 1989, he swallowed 38 sleeping pills. He surrendered to military authorities on 10 December 1989, and while waiting to see his commander regarding his absence, he collapsed to the floor and was transported to the hospital. He was not treated for a drug overdose, but was treated for dehydration (based on lab results). A line of duty investigation was conducted and a finding of “In line of duty” was made.

On 11 December 1989, the applicant again underwent a psychiatric evaluation and was diagnosed as having a personality disorder (Occupational problem/ passive dependent avoidant features) that was not compatible with active duty service. The examining psychiatrist indicated that he had suicidal tendencies, was anxious, and passive dependent. He recommended that the applicant be administratively discharged due to a personality disorder.

On 15 December 1989, NJP was imposed against him for being AWOL from 4 December to 10 December 1989. His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay (suspended for 6 months), extra duty and restriction.

On 7 February 1990, the applicant’s commander notified him that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, paragraph 5-13, for a personality disorder.

After consulting with counsel, the applicant elected to submit a statement in his own behalf on 11 January 1990, whereas he asserted, in effect, that he had joined the Army out of an act of desperation, after 2 ½ years of great emotional, marital and financial problems. He went on to state that his going AWOL was not a discipline problem of deliberate misconduct, but was the result of a personality disorder for which he sought help with in both the civilian and military communities. He also stated that he had been a minister prior to enlisting and after several failures as a minister, he had taken flight from his family much the same as he had done in the Army. He explained that while in the Army, he sought advice from his chain of command and the chaplains, and that while he was in the Army, his wife threatened to leave him and take his children, his aunt died, his father had a heart attack and open heart surgery, his wife had a gall bladder attack and surgery, and the financial expenses involving his travel to his family caused him to feel trapped. He continued by stating that he thought he could handle everything until his wife actually left him. He went on to state that while he understood that it was in the best interest of the Army to separate him, he wanted the chain of command to understand that his problem stemmed from a deep-rooted personality disorder and not intentional misconduct. He indicated that it was his desire to return to school, study Psychology to learn more of his problem and return to the ministry to help others.

On 13 February 1990, he submitted another statement in which he requested that he be allowed to remain on active duty until the end of his enlistment. He indicated that while he could not argue the findings of the psychiatrist, he believed that he had made great progress and had found strength in himself and his friends. While his divorce was in its final stages, he had resolved himself to accept it and make the best of the situation.

On 20 February 1990, the applicant’s commander submitted the recommendation for separation and recommended that the applicant receive an honorable discharge.

The appropriate authority approved the recommendation for discharge on 27 February 1990 and directed that he be furnished with an Honorable Discharge Certificate.

Accordingly, he was honorably discharged on 9 March 1990, under the provisions of Army Regulation 635-200, paragraph 5-13, for a personality disorder. He had served 2 years, 8 months and 22 days of total active service and had 17 days of lost time due to AWOL and confinement.

The statement submitted by the applicant from a civilian psychiatrist indicates that he has been treating the applicant since 29 October 1996 and that the applicant described a pattern that dated back when he was 17 years of age, in which he would experience a prominent increase in energy with considerable decrease in sleep. He would feel a rush and take off from wherever he was, regardless of the consequences. The episodes would last only a few days and led to loss of jobs and considerable stress on his marriage. Following his “Highs”, he would usually be depressed for 2 to 3 weeks with lethargy and withdrawal. The psychiatrist indicated that he diagnosed the applicant with Bipolar I Disorder and began experimental drug treatments. He hospitalized the applicant in 1999 and in 2000. In August 2001, he appeared to be euthymic and in good control. He was tolerating his medication well. The psychiatrist indicates that he cannot speak exactly what problems led to his difficulties in the Army; however, based on his observation and response to a mood stabilizing agent, he suspects that the behavioral problems he demonstrated in the Army were a manifestation of his bipolar disorder.

Army Regulation 635-200, paragraph 5-13, provides the criteria for discharge because of a personality disorder. It states, in pertinent part, that a soldier may be separated for personality disorders that interfere with assignment to or performance of duty. The diagnosis of personality disorder must have been established by a physician trained in Psychiatry and psychiatric diagnosis. Separation because of personality disorder is authorized only if the diagnosis concludes that the disorder is so severe that the soldier’s ability to function effectively in the military environment is significantly impaired.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his or her office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 40-501 provides policy and procedures on medical fitness standards for induction, enlistment, appointment and retention. Paragraph 3-35 states, in pertinent part, that personality, sexual or factitious disorders; disorders of impulse control not elsewhere classified, and psychoactive disorders, 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 administrative channels.

Title 38, United States 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. The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned. Consequently, due to the concepts involved, an individual’s medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

The Diagnostic and Statistical Manual of Mental Disorders (DSM-III-R) provides, in pertinent part, that a bi-polar disorder is classified as a borderline personality disorder.

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. The applicant was properly reduced to the pay grade of E-1 as a result of nonjudicial punishment imposed against him. Accordingly, he was properly separated in that pay grade.

2. The evidence of records shows that the applicant’s administrative separation on 9 March 1990 was accomplished in accordance with applicable regulations, with no indication of any violations of the applicant’s rights.

3. At the time of his separation, he was diagnosed with a personality disorder that in all likelihood, existed prior to his entry into the service. Although the applicant has submitted a statement from a psychiatrist some 12 years after the fact, which opines that he may be suffering from a bipolar disorder, that disorder is also considered a personality disorder.

4. The applicant’s contention that he should not have been punished and should have been discharged by reason of medical disability has been noted and found to be without merit. At the time of his discharge he was found to be medically fit for separation and he has failed to show through the evidence of record or the evidence submitted with his application that such was not the case.

5. Although the applicant may be apply for a disability rating by the Department of Veterans Affairs, that is a prerogative exercised within the policies of that agency and does not, in itself, establish any entitlement to disability compensation or medical retirement from the Department.

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:

___ls____ ___wdp _ __be____ GRANT

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

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

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INDEX

CASE ID	AR2002075463
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/12/17
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 177	108.0000/PD
2. 302	129.0000/PR
3.
4.
5.
6.