RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 February 2007
	DOCKET NUMBER:  AR20060006582 


	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.


x
	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that the Psychiatric Evaluation completed during his separation processing, dated 4 December 1992, be removed from his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that he did not participate in the psychiatric evaluation in question, or any other psychiatric evaluation while he was serving on active duty.

3.  The applicant provides the following documents in support of his application:  Third-Party Statement; Psychiatric Evaluation, dated 4 December 1992; and Separation Memorandum, dated 8 December 1992. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice that occurred on 9 December 1992.  The application submitted in this case is dated 28 April 2006.

2.  The applicant’s record shows he enlisted into the Regular Army and entered active duty on 13 November 1992, and that he was assigned to Fort Knox, Kentucky, to attend basic training.  

3.  On 4 December 1992, the applicant’s unit commander notified him that he was initiating action to separate him under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-13, based on his personality disorder.  He stated that the applicant was initially being investigated for possible fraud for concealing his previous hospitalization for psychiatric treatment.  He also stated that based on a survey the applicant took at the Community Mental Health (CMH) clinic upon his entry on active duty he had been identified for psychiatric evaluation.  

4.  The applicant's record contains a Mental Health Evaluation (DA Form 3822-R) and accompanying memorandum, which were prepared to document a mental health evaluation conducted on the applicant during his separation processing.  These documents show the examining Psychiatrist found the applicant possessed an antisocial passive aggressive personality disorder, which was so severe that the applicant's ability to function effectively in the military environment was significantly impaired.  The Psychiatrist also indicated the applicant was not likely to be amendable to coercion or retraining, and such additional stress could cause further deterioration and result in hospitalization, psychosis, suicide gestures or attempts, or other undesirable behaviors.  He further concluded the applicant was capable of distinguishing right from wrong and adhering to the right.  He also found the applicant was responsible for his actions and possessed the mental and emotional capacity to understand and participate in a board, or other legal proceedings.  The Psychiatrist recommended the applicant be administratively separated under the provisions of Army Regulation 635-200, paragraph 5-13, by reason of personality disorder.  

5.  On 7 December 1992, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, its effects, and of the rights available to him.  Subsequent to this counseling, he completed an election of rights statement in which he waived his right to counsel and elected not to submit statements in his own behalf.

6.  On 9 December 1992, the separation authority approved the applicant’s separation and directed the applicant be discharged under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-13, for personality disorder and that his service be described as Uncharacterized because he was in an Entry Level Status (ELS).  On 9 December 1992, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he was separated under the provisions of Army Regulation 635-200, paragraph 5-13, by reason of personality disorder, and that his service was described as Uncharacterized based on his ELS.  The separation document also confirms he completed a total of 27 days of active military service and that he received the National Defense Service Medal.    
7.  On 23 May 2003, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

8.  Army Regulation 600-8-104 (Military Personnel Information Management and Records) prescribes the policies and mandated operating tasks for the Military Personnel Management and Records program of the Military Personnel System. 
Table 2-1 contains guidance on the composition of the OMPF and on the proper filing disposition and location of specific documents.  This table indicates, in pertinent part, that case files for approved separations and all allied documents will be filed in the General Administrative (GA) section of the Service portion of a Soldier's OMPF.

9.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Chapter 3 contains policy pertaining to the characterization of service.  Paragraph 3-9 contains guidance on ELS separations.  It states, in 
pertinent part, that service will be described Uncharacterized for Soldiers in an ELS.  This status is applicable to Soldiers who have less than 181 days of continuous active military service.  

10.  Paragraph 5-13 of the separations regulation provides that a Soldier may be separated for personality disorder, not amounting to disability, which interferes with assignment to or performance of duty.  The regulation requires that the condition is a deeply ingrained maladaptive pattern of behavior of long duration that interferes with the Soldiers ability to perform duty.  It further specifies that the service of Soldiers separated under this provision will be characterized as honorable unless an ELS, in which case it will be Uncharacterized.  

11.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the
3-year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he never participated in the psychiatric evaluation dated 4 December 1992, and requests that this document be removed from his OMPF was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms that he underwent a psychiatric evaluation by a qualified Psychiatrist in conjunction with his separation processing, as evidenced by the DA Form 3822-R and Psychiatrist memorandum, dated 
4 December 1992, which are included in the separation packet on file in his OMPF.  

3.  By regulation, all separation case files and allied documents are required to be filed in the GA section of the Service portion of a member's OMPF.  In this case, the evidence of record confirms the applicant was diagnosed with an 
antisocial personality disorder by competent medical authority (Psychiatrist) and based on this diagnosis, he was processed for separation under personality disorder provisions of the regulation.  

4.  The applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Absent any independent evidence to the contrary, it is concluded that the separation case file and allied documents, to include the mental status evaluation, were properly filed in the applicant's OMPF.  Therefore, there is an insufficient evidentiary basis to remove them at this time.  

5.  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.

6.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 23 May 2003.  As a result, the applicant is within the 3-year statute of limitations.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__x__  __x__  __x__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations 
prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




_____x___
          CHAIRPERSON




INDEX

CASE ID
AR20060006582
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/02/06
TYPE OF DISCHARGE
UNCHAR
DATE OF DISCHARGE
1992/12/09
DISCHARGE AUTHORITY
AR635-200 . . . . .  
DISCHARGE REASON
Personality Disorder Chapter 5-13
BOARD DECISION
Deny
REVIEW AUTHORITY
Mr. Chun
ISSUES         1.
110
2.

3.

4.

5.

6.