PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 28 August 2003
         DOCKET NUMBER: AR2003085781


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

Mr. Carl W. S. Chun		Director
Ms. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Thomas Lanyi		Member
Mr. Harry B. Oberg		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

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

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, that his honorable discharge be changed to a medical discharge. He also requests that items 25 (Separation Authority),
26 (Separation Code) and 28 (Narrative Reason for Separation) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed.

3. The applicant submitted two applications. He states, in effect, that he was supposed to be discharged with a medical discharge due to a sleep disorder; instead, he was discharged with an honorable discharge due to a personality disorder. He contends that he was not diagnosed with a personality disorder. In support of his application, he submits a letter, dated 25 February 2003, from a State Office Representative for a Member of Congress; a copy of his DD Form 214; a letter, dated 17 January 2003, from the Review Boards Agency; a letter, dated 17 January 2003, from the Defense Finance and Accounting Service; a letter, dated 21 February 2003, from the Department of Treasury; a letter, dated 9 July 2002, from the applicant to a Member of Congress; two undated letters; a Statement of Military Pay Account; DD Form 3822-R (Report of Mental Status Evaluation), dated 28 February 2002; DD Form 3822-R, dated 26 February 2002; and discharge proceedings, dated 29 April 2002.

4. The applicant's military records show that he enlisted on 13 June 2000 for a period of 4 years and trained as a combat engineer.

5. Between 27 December 2000 and 2 April 2002, the applicant was counseled on numerous occasions for various infractions to include missing formations, traffic violation, breaking restriction, failure to follow orders, falling asleep on duty, and indebtedness.

6. On 14 January 2002, nonjudicial punishment was imposed against the applicant for failure to repair (three specifications). His punishment consisted of restriction and extra duty.

7. On 21 February 2002, nonjudicial punishment was imposed against the applicant for failure to repair. His punishment consisted of a reduction to E-2, a forfeiture of pay, restriction and extra duty.

8. On 28 February 2002, the applicant underwent a mental status evaluation and was diagnosed with Circadian Rhythm Sleep Disorder with Delayed Sleep Phase Syndrome and Attention Deficit/Hyperactivity Disorder. The clinical psychologist determined that, between the two disorders, the applicant's ability to effectively perform his military duties was significantly impaired. The clinical psychologist recommended that the applicant be administratively discharged under Army Regulation 635-200, chapter 5, paragraph 5-17, for other designated physical or mental conditions.

9. On 29 April 2002, the applicant was notified of his pending separation under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-13, for a personality disorder. The unit commander cited that the applicant had been diagnosed with a personality disorder and recommended that he be furnished an honorable discharge.

10. The applicant's Enlisted Record Brief, dated 29 April 2002, shows his physical profile factors as 111111.

11. On 1 May 2002, after consulting with counsel, the applicant waived consideration of his case by an administrative separation board, waived a personal appearance, and elected not to make a statement on his own behalf.

12. On 7 May 2002, the applicant's unit commander initiated action to separate him under the provisions of Army Regulation 635-200, chapter 5, paragraph
5-13, for a personality disorder.

13. On 10 May 2002, the intermediate commander recommended that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 5-13, for a personality disorder.

14. On 17 May 2002, the separation authority directed that the applicant be separated from the Army under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-13, for a personality disorder. He also directed that the applicant be furnished an honorable discharge.

15. Accordingly, the applicant was discharged with an honorable discharge under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-13, for a personality disorder. He had completed 2 years and 9 days of creditable active service.

16. Item 25 on the applicant's DD Form 214 shows the entry, "AR [Army Regulation] 635-200, PARA [Paragraph] 5-13."

17. Item 26 on the applicant's DD Form 214 shows the entry, "JFX."

18. Item 28 on the applicant's DD Form 214 shows the entry, "PERSONALITY DISORDER."

19. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. Paragraph 5-13 provides that a soldier may be separated for personality disorder, not amounting to disability under Army Regulation 635-40, that interferes with assignment or performance of duty. The regulation states that the condition is a deeply ingrained maladaptive pattern of behavior of long duration that interferes with the soldier's ability to perform duty. The regulation also directs that commanders will not take action prescribed in this chapter in lieu of disciplinary action, requires that the diagnosis conclude the disorder is so severe that the soldier’s ability to function in the military environment is
significantly impaired, and states that separation for personality disorder is not appropriate when separation is warranted under Army Regulation 604-10, chapters 4, 5, 7, 9, 10, 11, 13, 14, 15, or 18; or Army Regulation 635-40.

20. Paragraph 5-17 (previously paragraph 5-18) of Army Regulation 635-200 provides for separation for other designated physical or mental conditions. It states that commanders may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability and excluding conditions appropriate for separation processing under paragraph 5-11 (medical fitness standards) or paragraph 5-13 that potentially interfere with assignment to or performance of duty. Such conditions may include, but are not limited to, chronic airsickness, chronic seasickness, enuresis, sleepwalking, dyslexia, severe nightmares, claustrophobia, and other disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the soldier's ability to effectively perform military duties is significantly impaired.

21. Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted. Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric. Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.

22. Army Regulation 40-501, chapter 3 (Medical Fitness Standards for Retention and Separation Including Retirement) does not list either Sleep Disorder or Attention Deficit/Hyperactivity Disorder as conditions which could render a soldier unfit for further military service and therefore referable to an Medical Evaluation Board (MEB).

23. 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. MEBs 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.

24. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states the reason for discharge based on separation code “JFX” is “Personality Disorder” and the regulatory authority is Army Regulation 635-200, paragraph
5-13. This separation code is used for an involuntary discharge.

25. Army Regulation 635-5-1 states the reason for discharge based on separation code "JFV" is "Physical Condition, Not a Disability" and the regulatory authority is Army Regulation 635-200, paragraph 5-18. This separation code is used for an involuntary discharge.

CONCLUSIONS:

1. The evidence of record does not support the applicant's contention that he was supposed to be discharged with a medical discharge due to a sleep disorder. Evidence of record does show that he was diagnosed with Circadian Rhythm Sleep Disorder with Delayed Sleep Phase Syndrome and Attention Deficit/Hyperactivity Disorder. However, the clinical psychologist recommended that the applicant be administratively discharged, not medically discharged.

2. The applicant's Enlisted Record Brief, dated 29 April 2002, shows his physical profile factors as 111111. There is no medical evidence of record that shows the applicant incurred any medical condition while entitled to receive basic pay which was so severe as to render him medically unfit for retention on active duty. The conditions he was diagnosed with are not listed in Army Regulation 40-501, chapter 3 as conditions referable to an MEB for physical disability processing. Therefore, there is no basis for granting the applicant's request for a medical discharge.

3. The Board notes that the clinical psychologist recommended that the applicant be administratively discharged under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-17, for other designated physical or mental conditions. However, the applicant's discharge proceedings and his DD Form 214 erroneously show that he was discharged under the provisions of Army Regulation 635-200, paragraph 5-13, for a personality disorder.

4. The Board notes that Army Regulation 635-5-1 still reflects the SPD code for the old paragraph 5-18, Army Regulation 635-200. Since Army Regulation
635-5-1 fails to reflect separation for other designated physical or mental conditions, which now falls under paragraph 5-17 of Army Regulation 635-200, the Board concludes that separation under paragraph 5-18 of Army Regulation 635-200 for physical condition, not a disability, would be appropriate in this case. Therefore, it would be appropriate to correct items 25, 26 and 28 on the applicant's DD Form 214 to show that he was discharged under the provisions of Army Regulation 635-200, paragraph 5-18, for physical condition, not a disability.

5. In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records but only as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected:

         a. by deleting the entry, "AR 635-200, PARA 5-13" in item 25 on the applicant's DD Form 214;

         b. by adding the entry, "AR 635-200, PARA 5-18" in item 25 on his DD Form 214;

         c. by deleting the entry, "JFX" in item 26 on his DD Form 214;

         d. by adding the entry, "JFV" in item 26 on his DD Form 214;

         e. by deleting the entry, "PERSONALITY DISORDER" in item 28 on his DD Form 214; and

         f. by adding the entry, "PHYSICAL CONDITION, NOT A DISABILITY" in item 28 on his DD Form 214.

2. That so much of the application as pertains to a medical discharge be denied.

BOARD VOTE:

AAO___ TL_____ HBO_____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  __Arthur A. Omartian
                  CHAIRPERSON

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INDEX

CASE ID	AR2003085781
SUFFIX
RECON
DATE BOARDED	20030828
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	20020621
DISCHARGE AUTHORITY	AR 635-200 Chapter 5, Paragraph 5-13
DISCHARGE REASON	Personality Disorder
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	108.0000
2.	110.0200
3.
4.
5.
6.