MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 21 AUGUST 2003
         DOCKET NUMBER: AR2003086462

         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. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Roger W. Able		Member
Ms. Regan K. Smith		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: Physical disability retirement.

APPLICANT STATES: He was initially discharged because of a personality disorder. Extensive testing determined that he actually had a bipolar disorder and generalized anxiety. His treatment in the Army was brief and without extensive testing. The Veterans Affairs has awarded him a 100 percent service connected disability rating. The Army Discharge Review Board changed the reason for his discharge.

The applicant submits a copy of a 20 August 2001 psychological evaluation report, a copy of an 11 June 2002 Veterans Affairs' rating decision, and a copy of a 30 October 2002 Army Discharge Review Board decision.

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

The applicant enlisted in the Army for two years on 2 November 1988, completed training as a cook, and in May 1989 was assigned to a military intelligence battalion in Korea. During his five month tour of duty in Korea the applicant was counseled on nine occasions, for not completing his assigned duties on two occasions, unacceptable personal hygiene and unsatisfactory job performance, failing the Army physical fitness test, misplacing his weapon, failing to follow instructions, unacceptable duty performance, and failure to make progress on the weight control program.

The documents reflecting the applicant's separation processing are incomplete. There is no report of a mental status evaluation or medical examination. However, on 2 October 1989 the applicant consulted with counsel and stated that he had been advised of the basis of the contemplated action to separate him for a personality disorder, under the provisions of Army Regulation 635-200, chapter 5, its effects, the rights available to him, and the effect of any action taken by him in waiving his rights. He declined to submit a statement in his own behalf.

On 4 October 1989 the separation authority approved a recommendation that the applicant be discharged because of a personality disorder. That official recommended that the applicant be issued an Honorable Discharge Certificate. The applicant was discharged on 11 October 1989. He had 11 months and 10 days of service.

In August 2001, the applicant was evaluated by a psychologist of the Baraboo Psychological Services in Baraboo, Wisconsin. That evaluation revealed that he was referred for psychological testing by his psychiatrist because of abnormalities in his magnetic resonance imaging and two recent hospitalizations for emotional regulation and suicidal ideation. The applicant reported that his marital relationship was causing him distress, and that he believed that his emotional problems date to his military service. He stated that basic training was stressful for him because he was not fast enough or strong enough to meet expectations. He recalled being degraded and humiliated. He stated that he attempted suicide three times while in the military. He stated that he was lonely and had few friends while in the military and that he was often afraid, anxious, and homesick. He was currently under considerable stress due to marital/parenting issues, social service involvement with his family, and work pressures.

The evaluation indicated that both the applicant and his wife participated in a clinical interview, and the applicant completed four tests. The psychologist reviewed the applicant's recent medical records. The psychologist gave a review of the applicant's personal and social history, provided the results of the tests administered to the applicant, and summarized his condition. She stated that the applicant was diagnosed by his psychiatrist with bipolar disorder and was being treated with medication for that disorder and his other emotional and sleep disorders. She stated that agitated depression appeared to be part of his bipolar disorder and that he also met the criteria for a generalized anxiety disorder. He did not show evidence of a personality disorder but did have borderline traits (which were evidenced in his tendency toward boredom, unstable sense of self, suicidal ideation, impulsive behaviors and difficulty regulating his emotions), and masochistic traits which exhibited as rumination about being misunderstood and mistreated.

The psychologist stated that the applicant was vulnerable to environmental stress because he had limited ability to cope with stress. His marriage was highly stressful and appeared to be a primary contributory factor to his current mental health issues. His time in the military was extremely stressful for him and appeared to be the beginning of his suicidal ideation and anxiety. He did not show evidence of post-traumatic stress disorder from that period but did ruminate about it. She diagnosed the applicant's condition as bipolar disorder, generalized anxiety disorder, and non-verbal learning disability.

That psychologist also stated she began treating him in February 2001. She stated that the applicant was an individual with weak psychological defenses. He had several serious suicide attempts. The applicant told her that the depression and suicidal ideation and attempts first appeared during his time in the military, and prior to that he showed no evidence of mental illness. She stated that she did not know him prior to his time in the military; but given his emotional nature, the expectations, stresses, and interpersonal relationships in the military could be expected to affect him such that his mental illness could develop.

On 11 June 2002 the Department of Veterans Affairs awarded the applicant a 100 percent service connected disability rating for bipolar disorder and generalized anxiety disorder effective on 18 December 2001. That rating indicated that his first treatment related to mental health issues was shown in the military service, and that his recent history of symptoms included depression, anxiety, an unstable sense of self, suicidal ideation, impulsive behaviors and difficulty regarding his emotions.

On 19 July 2002 the applicant requested that the Army Discharge Review Board change the reason for his discharge from personality disorder to physical disability retirement or separation, citing the evidence contained in the above mentioned psychologist's evaluation report and the Department of Veterans Affairs disability rating. He stated that while in the Army he was sent to a psychologist a few times.

On 30 October 2002 the Army Discharge Review Board, in a majority opinion, changed the reason and authority for the applicant's discharge to Secretarial Authority under the provisions of Army Regulation 635-200, paragraph 5-3. The Board stated that the applicant had submitted probative and compelling medical evidence showing that he does not suffer from a personality disorder. Accordingly, the board voted to change the narrative reason for his discharge to Secretarial authority. The board indicated that it did not have the authority to rule on the applicant's request for disability retirement, stating that the applicant should address that issue to this Board.

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Paragraph 5-13 establishes policy and prescribes procedures for separating members for personality disorder (not
amounting to a disability under Army Regulation 635-40), a deeply-ingrained maladaptive pattern of behavior which interferes with the individual's ability to perform. Prior counseling with a view to correcting deficiencies is mandatory. The unit commander must ensure that an appropriate mental status evaluation is obtained in addition to a medical evaluation. The service of a soldier separated for a personality disorder will be characterized as honorable.

The essential feature of a personality disorder is an enduring pattern of inner experience and behavior that deviates markedly from the expectations of the individual’s culture and is manifested in at least two of the following areas: cognition, affectivity, interpersonal functions, or impulse control. This enduring pattern is inflexible and pervasive across a broad range of personal and social situations and leads to clinically significant distress or impairment in social, occupational, or other important areas of functioning. The pattern is stable and of long duration, and its onset can be traced back at least to adolescence or early adulthood. Many of the specific criteria for the personality disorders describe features (e.g., suspiciousness, dependency, or insensitivity) that are also characteristic of episodes of mental disorders. For the three personality disorders that may be related to the psychotic disorders (i.e., paranoid, schizoid, and schizotypal), there is an exclusion criterion stating that the pattern of behavior must not have occurred exclusively during the course of schizophrenia, a mood disorder with psychotic features, or another psychotic disorder.

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 office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 40-501, then in effect, 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.

Army Regulation 635-40, then in effect, provides that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

Title 38, United States Code, sections 1110 and 1131, permit the Department of Veterans Affairs (VA) to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a higher VA rating does not establish error or injustice in the Army rating. An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service. The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual’s civilian employability. Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment. Furthermore, unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency’s examinations and findings. The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability. A common misconception is that veterans can receive both a military retirement for physical unfitness and a VA disability pension. By law, a veteran can only be compensated once for a disability. If a veteran is receiving a VA disability pension and the ABCMR corrects the records to show that a veteran was retired for physical unfitness, the veteran would have to choose between the VA pension and military retirement.

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 Board recognizes that at times there will be an honest difference of opinion among physicians as to a diagnosis, and does not dispute the diagnosis given by the psychologist and as affirmed by the Department of Veterans Affairs some 12 years after his discharge. There is, however, no medical evidence to support the applicant's contention that he was physically unfit for retention in the Army in 1989 because of a bipolar disorder. Absent evidence to the contrary, he was determined to have a personality disorder and was medically qualified for separation. Consequently, and notwithstanding the post-service diagnosis provided, the applicant has not convinced the Board that his discharge for a personality disorder was improper, incorrect, or unjust.

2. The fact that the Department of Veterans Affairs, in its discretion, has awarded the applicant a disability rating is a prerogative exercised within the policies of that agency. It does not, in itself, establish physical unfitness for Department of the Army purposes.

3. The Department of Veterans Affairs is not required by law to determine medical unfitness for further military service. The Department of Veterans Affairs, 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. Furthermore, the Department of Veterans Affairs can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated. Consequently, due to the two concepts involved, the applicant'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 him for Department of Veterans Affairs' benefits based on an evaluation by that agency.

4. There is no evidence to show that the applicant had any medically unfitting disability which required physical disability processing. Therefore, there is no basis for physical disability retirement or separation.

5. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

6. 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 that requirement.

7. 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

__JNS __ __RWA__ __RKS __ DENY APPLICATION

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

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INDEX

CASE ID	AR2003086462
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030821
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	108.00
2.
3.
4.
5.
6.