RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2007
	DOCKET NUMBER:  AR20060014376 


	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.


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	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 that her honorable discharge be changed to a medical retirement by reason of physical disability. 

2.  The applicant states that she became unfit for service due to rape trauma syndrome following a sexual assault while on active duty in July 1988 and was illegally offered a chapter 13 discharge for a non-existent personality disorder.  She goes on to state that the narrative reason for her separation was subsequently changed to “Secretarial Authority”; however, she believes she should have been medically retired so that she can have access to treatment resources not provided by the Department of Veterans Affairs (VA). 

3.  The applicant provides the last page of the Army Discharge Review Board (ADRB) directive that changed her narrative reason for separation and a four page statement from the applicant regarding her discharge. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 10 March 1989.  The application submitted in this case is dated 2 October 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 was born on 23 December 1956 and enlisted in the Army National Guard (ARNG) on 1 July 1980.  She remained in the ARNG until 18 June 1981 when she was discharged and enlisted in the United States Army Reserve (USAR) on 19 June 1981, under the delayed entry program (DEP).  She enlisted in the Regular Army in Denver, Colorado on 2 July 1981 for a period of 3 years and training as an administrative specialist.

4.  She completed her training at Fort Jackson, South Carolina and was assigned to Fort Monroe, Virginia for duty as an administrative specialist.  She was advanced to the pay grade of E-4 on 1 April 1982 and remained at Fort Monroe until she was transferred to Belgium on 16 February 1983.  She remained in Belgium until 15 June 1984 and was transferred to The Netherlands on 2 July 1984.  She reenlisted for a period of 4 years on 8 May 1984 and was promoted to the pay grade of E-5 on 1 January 1985.   

5.  She departed The Netherlands on 1 July 1986 and was transferred to the Caribbean Intelligence Center, Key West, Florida.  The evidence of record shows that shortly after her arrival at Key West in 1986 she was evaluated by the Psychiatry Department at the Naval Air Station – Key West for her inability to deal with stress at work, depression, and suicidal ideation.  She was diagnosed with an adjustment disorder and was subsequently hospitalized in a civilian facility for further observation.  She was diagnosed as having an adjustment disorder with depressed mood and was recommended for transfer to a military psychiatric unit for full evaluation concerning fitness for duty.  She was subsequently deemed fit for duty.

6.  On 25 April 1988, she extended her enlistment for a period of 44 months to participate in the Bonus Enlistment and Retraining (BEAR) Program for training in military occupational specialty 98C and Russian language training.  

7.  She departed Key West on 9 July 1988 and was transferred to the Presidio of Monterrey, California for language training at the Defense Language Institute. 

8.  On 17 February 1989, the applicant underwent a mental status evaluation (MSE) and was diagnosed as having a mixed personality disorder, severe, that was a deeply ingrained, maladaptive pattern of behavior of long duration which interferes with the member’s ability to perform duty.  It was recommended that the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 5-13 for a personality disorder.  The MSE was authenticated by a Psychology Intern in the rank of captain and a clinical psychologist in the rank of lieutenant colonel. 

9.  On 23 February 1989, the applicant’s commander notified the applicant that he was initiating action to separate her from the service under the provisions of Army Regulation 635-200, paragraph 5-13, due to her being diagnosed as having a personality disorder.

10.  On 24 February 1989, after consulting with counsel, the applicant waived all of her rights and elected not to submit a statement in her own behalf.

11.  The appropriate authority approved the recommendation for discharge on 3 March 1989 and directed that she be furnished an Honorable Discharge Certificate.

12.  Accordingly, she was honorably discharged on 10 March 1989 under the provisions of Army Regulation 635-200, paragraph 5-13 due to a personality disorder.  She had served 7 years, 11 months, and 26 days of total active service.

13.  On 27 September 1991, the applicant applied to the Army Discharge Review Board for a change in the narrative reason for her discharge.  She contended at that time that she did not have a personality disorder, that she had been         misdiagnosed by a psychology intern, and that it would have been diagnosed years before if she had one.  She also contended that that her ability to serve was hindered by her post-traumatic stress disorder (PTSD) due to rape trauma that was recognized by the VA and that the Army never addressed the issue or offered her any help with that problem.

14.  On 16 August 1994, the members of the ADRB accepted the applicant’s contentions and noted that she had been seen by a civilian doctor and was diagnosed with PTSD during the same period she was diagnosed with a personality disorder.  The ADRB noted that she was still being treated by the VA and was granted a 10% disability rating for PTSD and opined that had she been properly diagnosed by the military, she would have been separated through medical channels.  The ADRB voted to change the narrative reason for her separation to reflect that she was discharged by reason of “Secretarial Authority”.

15.  A review of the VA Rating decision dated 20 November 1989 that is contained in her records and accompanied her application to the ADRB shows that the applicant claimed PTSD based primarily on a rape that occurred in June 1988.  She indicates that she had been out drinking with a group of people she had begun to associate with who were of questionable character.  The people were involved with drugs and she denied any drug use herself.  She was drunk at the time and a Cuban who supplied her friends with drugs, raped her in his trailer.  She stated that she did not report the rape due to embarrassment about the circumstances involved and concern that it might jeopardize her military assignment.  She also cites an attempted rape and physical assault in February 1986 by a Soldier/friend, spousal abuse, and sexual harassment by her officer in charge.  She was given a combined disability rating of 40%.

16.  Army Regulation 635-40, Physical Evaluation for Retention, Retirement, or Separation, provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member may reasonably be expected to perform because of his or her office, rank, grade or rating. 

17.  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 two 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.

18.  There is a difference between the Department of Veterans Affairs (VA) and the Army disability systems.  The Army’s determination of a Soldier’s physical fitness or unfitness is a factual finding based upon the individual’s ability to perform the duties of his or her grade, rank or rating.  The VA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The VA’s ratings are based upon an individual’s ability to gain employment as a civilian and may fluctuate within a period of time depending on the changes in the disability.

19.  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.
         
DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding the opinion and actions of the ADRB to change the applicant’s narrative reason for separation, the applicant’s administrative discharge was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant rights.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances. 

2.  The Board has noted the applicant's contentions; however, she has failed to show through the evidence submitted and the evidence of record that separation through medical channels was warranted at the time of separation or that she was not found fit for separation.
3.  The fact that the VA, 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.

4.  It is noted that the applicant claims that her problems began in 1988 after she experienced a rape in June 1988 that was not reported.  However, the evidence of record shows that she began to experience problems that resulted in her being treated for an adjustment disorder shortly after her arrival in Key West in 1986.  While the Board does not doubt the veracity of her claim, there simply is insufficient evidence to support her claim that she was improperly diagnosed prior to her discharge or to attempt to second guess the medical officials at the 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 should have discovered the alleged error or injustice now under consideration on 10 March 1989; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
9 March 1992.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

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.




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          CHAIRPERSON




INDEX

CASE ID
AR20060014376
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070417
TYPE OF DISCHARGE
(HD)
DATE OF DISCHARGE
1989/03/10
DISCHARGE AUTHORITY
AR635-200/CH5 . . . . .  
DISCHARGE REASON
PERSONALITY DISORDER/SEC AUTH
BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.108.0000
177/DIS RET
2.

3.

4.

5.

6.