RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	   13 March 2007
	DOCKET NUMBER:  AR20060007852 


	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.



Acting Director



Analyst


The following members, a quorum, were present:




Chairperson


Member


Member

	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 his DD Form 214 (Certificate of Release or Discharge From Active Duty) be corrected to show that “Personality Disorder” was not the narrative reason for his separation.

2.  The applicant essentially states that he never had a personality disorder, and that he was never tested for such a disorder.  He also states, in effect, that the United States Army is not justified for putting such an allegation on his record.

3.  The applicant provides his DD Form 214 in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 
16 May 1990, the date of his discharge from the Regular Army.  The application submitted in this case is dated 23 May 2006.

2.  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.  This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s records show that he enlisted in the Regular Army on 
22 November 1989.  He completed basic training, but was issued a permanent physical profile for a medical condition that existed prior to service (EPTS).

4.  On 26 January 1990, an Entrance Physical Standards Board (EPSB) recommended that the applicant be separated from the United States Army for failure to meet medical procurement standards because of a malunion left femoral fracture which he sustained after he fractured his left femur at 14 years of age.  However, although the applicant’s military records do not contain all of the paperwork from his EPSB, it appears that he was retained after the EPSB.  It should be noted that the EPSB specifically stated that the applicant does not meet the medical retention standards in accordance with chapter 3, Army Regulation 40-501 (Standards of Medical Fitness).

5.  On 12 April 1990, while the applicant was in advanced individual training, the applicant’s company commander submitted a request for waiver of the advanced individual training end-of-course Army Physical Fitness Test.  In his recommendation, the company commander commented on the applicant’s progress and potential by stating, “This is an overall good Soldier.  [The applicant] came to us from [basic training] with a profile.  [He] was boarded and given a permanent P3 profile for running.  [The applicant] has passed the APFT within the limits of his profile.  [The applicant] will be an asset to the Army upon approval of the waiver.”

6.  On or about 13 April 1990, the applicant’s brigade commander disapproved the request for waiver of the advanced individual training end-of-course Army Physical Fitness Test for the applicant.

7.  On 26 April 1990, the applicant’s company commander initiated action to discharge him from the United States Army under the provisions of Chapter 11 (Entry Level Performance and Conduct), Army Regulation 635-200 (Enlisted Personnel).  The specific reasons he stated for his proposed action were:

	a.  the applicant was unable to meet the medical procurement standards;

	b.  the applicant’s permanent profile prohibited him from running or marching; and

	c.  the applicant’s injury will not get better with time, putting him at a disadvantage for future service in the Army.

8.  On 9 May 1990, the proper approval authority approved the applicant’s discharge under the provisions of Chapter 11, Army Regulation 635-200.  He directed that the applicant be released from active duty and transferred to the Individual Ready Reserve to complete his military service obligation.

9.  On 16 May 1990, the applicant was not released from active duty, but instead, was discharged from the United States Army.  Item 25 (Separation Authority) of the applicant’s DD Form 214 shows that the authority for his discharge was paragraph 5-13 (Separation Because of Personality Disorder), Army Regulation 635-200.  Item 26 (Separation Code) of this same form has an entry of JFX, which is the separation code for personality disorder.  Item 28 (Narrative Reason for Separation) has an entry of “Personality Disorder.”  

10.  There is no record of the applicant ever being evaluated for a personality disorder.
11.  Chapter 11 of Army Regulation 635-200 sets policy and provides guidance for the separation of Soldiers because of unsatisfactory performance and/or conduct while in entry-level status.  Separation of a Soldier in entry level status may be warranted on the grounds of unsatisfactory performance and/or unsatisfactory conduct as evidenced by inability, lack of reasonable effort, failure to adapt to the military environment, or minor disciplinary infractions.

12.  Paragraph 5-13 of Army Regulation 635-200 provides, in pertinent part, that a Soldier may be separated for personality disorder that interferes with assignment or with performance of duty, when so disposed as follows:   

	“This condition is a deeply ingrained maladaptive pattern of behavior of long duration that interferes with the Soldier's ability to perform duty.  (Exceptions: combat exhaustion and other acute situational maladjustments.)  The diagnosis of personality disorder must have been established by a psychiatrist or doctoral-level clinical psychologist with necessary and appropriate professional credentials who is privileged to conduct mental health evaluations for the Department of Defense components.  It is described in the Diagnostic and Statistical Manual (DSM-IV) of Mental Disorders, 4th edition.”

13.  Paragraph 5-11 of Army Regulation 635-200 provides, in pertinent part, that Soldiers who were not medically qualified under procurement medical fitness standards when accepted for enlistment or who became medically disqualified under these standards prior to entry on active duty (AD) or active duty training (ADT) for initial entry training, may be separated.  Such conditions must be discovered during the first 6 months of AD.  Such findings will result in an EPSB. This board, which must be convened within the Soldier's first 6 months of AD, takes the place of the notification procedure required for separation under this chapter.  Medical proceedings, regardless of the date completed, must establish that a medical condition was identified by an appropriate military medical authority within 6 months of the Soldier's initial entrance on AD for Regular Army or during ADT for initial entry training for Army National Guard of the United States (ARNGUS) and United States Army Reserve (USAR) that:

a.  would have permanently or temporarily disqualified the Soldier for entry into the military service or entry on AD or ADT for initial entry training had it been detected at that time; and

b.  does not disqualify the Soldier for retention in the military service per Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

14.  Paragraph 5-11 of Army Regulation 635-200 also provides, in pertinent part, that a Soldier who is found after entry on active duty not to have been qualified under procurement medical fitness standards at the time of enlistment may request to be retained on active duty subject to the conditions listed below. Approval or disapproval of requests for retention under this paragraph is delegated to the separation authority cited in paragraph 1-19d of this regulation.  No Soldier has a right to be retained under this paragraph.  Soldiers not retained will be processed for separation.  Soldiers will not be retained under this paragraph unless both conditions below are met:

	a.  The separation authority cited in paragraph 1-19d determines, after considering the proceedings of an EPSB, that the Soldier's disqualifying condition will not prevent the Soldier from performing satisfactorily throughout his/her period of enlistment in the military occupational specialty (MOS) for which he/she is being trained or in another MOS based on the Soldier's medical condition; and

	b.  The Soldier, after being counseled and given the opportunity to obtain legal advice, signs a statement requesting to complete the period of service for which enlisted. 

15.  Paragraph 5-11 of Army Regulation 635-200 also states, in pertinent part, that Soldiers who do not meet the medical fitness standards for retention will be processed per Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  

16.  Army Regulation 635-5-1 (Separation Program Designator [SPD] Codes) provides, in pertinent part, that the correct SPD for failure to meet medical or physical procurement standards is “JFW.”

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show that “Personality Disorder” was not the narrative reason for his separation. 

2.  It is clear that the applicant was improperly discharged due to personality disorder instead of for failure to meet medical and physical procurement standards.  As a result, his current DD Form 214 has inaccurate information in Items 25, 26, and 28.  



3.  It is also clear that as it was determined by competent medical authority that the applicant did not meet medical retention standards of chapter 3, Army Regulation 40-501, he should have been discharged from the United States Army under paragraph 5-11 of Army Regulation 635-200.  

4.  In view of the foregoing, the applicant is entitled to correction of his military records to show that his:

a.  Separation Authority in Item 25 was “AR 635-200, PARA 5-11”;

	b.  Separation Code in Item 26 was “JFW”; and

	c.  Narrative Reason for Separation in Item 28 was “FAILED MEDICAL/PHYSICAL PROCUREMENT STANDARDS.”

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 16 May 1990; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
15 May 1993.  Although the applicant did not file within the ABCMR's statute of limitations, it is appropriate to waive failure to timely file based on the relief being granted in this case.

BOARD VOTE:

___WP__  ___PS __  ___JP___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected to remove the erroneous information from his DD Form 214.




2.  Although correction of a DD Form 214 is normally provided by the issuance of a DD Form 215 (Correction to DD Form 214), the Board believes that the issuance of a completely new DD Form 214 is more appropriate in this case to remove any possible stigma from the applicant’s military record.  Therefore, the applicant is entitled to correction of his military records by the revoking the applicant’s current DD Form 214 and issuing him a completely new DD Form 214 which shows that his:

	a.  Separation Authority in Item 25 was “AR 635-200, PARA 5-11”;

	b.  Separation Code in Item 26 was “JFW”; and

	c.  Narrative Reason for Separation in Item 28 was “FAILED MEDICAL/PHYSICAL PROCUREMENT STANDARDS.”




_____William Powers________
          CHAIRPERSON




INDEX

CASE ID
AR20060007852
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070313
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
144.9321.0000
2.

3.

4.

5.

6.