RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  12 June 2007
	DOCKET NUMBER:  AR20060017548 


	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.


Ms. Catherine C. Mitrano

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, the reason for his discharge be changed to post-traumatic stress disorder (PTSD) instead of personality disorder.

2.  The applicant states, in effect, the Department of Veterans Affairs (DVA) recently diagnosed him with PTSD and he feels the reason for discharge on his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 19 October 1995 should be changed to PTSD.

3.  The applicant provides a copy of a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), his DD Form 214 with an effective date of 19 October 1995, and his DVA Rating Decision, dated 
27 September 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 19 October 1995, the date of his discharge.  The application submitted in this case is dated 29 November 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 he served in the U.S. Marine Corps during the period from 26 February 1990 to 25 February 1994.  He had served 4 years of active service that was characterized as honorable.

4.  On 13 April 1994, the applicant enlisted in the U.S. Army for a period of 
3 years.  He was awarded the military occupational specialty 11B (infantryman).  The applicant was assigned to the 4th Battalion, 27th Infantry at Ft. Shafter, Hawaii. 

5.  On 2 June 1995, the applicant was evaluated the Division psychiatrist.  The examiner stated the applicant had been followed by the Division Mental Health Service since October 1994.  The examiner diagnosed the applicant with Borderline Personality Disorder (Provisional).  The Evaluation Section of the report shows that the applicant's behavior was normal, he was fully alert, fully oriented, and that his mood was labile (readily or frequently changing).  This Section further indicates that the applicant's thinking process was clear, his thought content showed paranoid ideation, and his memory was good.

6.  On 20 July 1995, the applicant's commander notified him that he was initiating action to discharge him under the provisions of Chapter 5, paragraph 
5-13 of Army Regulation 635-200 (Personnel Separations) based on the applicant having been diagnosed with a personality disorder by the division psychiatrist.  The commander further recommended that the applicant’s period of service be characterized as honorable.  

7.  The commander advised the applicant of his right to submit statements in his own behalf; to be represented by counsel; to waive any of these rights; to obtain copies of documents that will be sent to the separation authority supporting the proposed separation; and to withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge.  The commander also advised the applicant he may waive any or all of these rights in writing and that failure to respond to within 7 days will constitute a waiver of his rights.

8.  On 20 July 1995, the applicant acknowledged receipt of notification of the proposed separation against him.

9.  On 21 July 1995, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action to discharge him under the provisions of Chapter 5, paragraph 5-13 of Army Regulation 635-200 for a personality disorder.  The applicant stated that he was not submitting statements in his own behalf.  He acknowledged that he would be ineligible to apply for enlistment in the Army for 2 years after discharge.

10.  On 24 July 1995, the applicant's commander recommended him for discharge due to personality disorder and that his service be characterized as honorable. 

11.  On 28 July 1995, the appropriate authority approved the recommendation for discharge due to personality disorder and directed the applicant's service be characterized as honorable.

12.  On 19 October 1995, the applicant was discharged under the provisions of Chapter 5, paragraph 5-13 of Army Regulation 635-200 due to a personality disorder and assigned a RE code of RE-3.  He had completed 1 year, 6 months, and 7 days active service that was characterized as honorable.  
13.  The DVA Rating Decision, dated 27 September 2005, granted the applicant service connection for PTSD effective September 26, 2005.

14.  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 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.  The regulation also directs that commanders will not take action prescribed in this chapter in lieu of disciplinary action and requires that the diagnosis concludes the disorder is so severe that the soldier’s ability to function in the military environment is significantly impaired.

DISCUSSION AND CONCLUSIONS:

1.  In 1995 the applicant was diagnosed with Borderline Personality Disorder (Provisional) and subsequently discharged.  The fact that the DVA diagnosed the applicant with PTSD 10 years after his discharge does not indicate that the reason for his discharge was in error.

2.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

3.  In order to justify correction of a military record the applicant must, 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.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 19 October 1995, the date of his discharge; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 18 October 1998.  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.




____________x___
          CHAIRPERSON




INDEX

CASE ID
AR20060017548
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070612
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.

2.

3.

4.

5.

6.