RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 August 2007
      DOCKET NUMBER:  AR20070002622


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Ms. Ernestine I. Fields           |     |Member               |
|     |Mr. Randolph J. Fleming           |     |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 that the narrative reason for her separation be
changed, in effect, to a medical separation.

2.  The applicant states that the reason for her discharge should read Post
Traumatic Stress Disorder (PTSD) due to Sexual Assault/Harassment.  She was
discharged under an erroneous diagnosis to conceal the events that led to
her disability.

3.  The applicant provides a Department of Veterans Affairs (VA) Rating
Decision, dated 8 August 2006; and a PTSD initial evaluation, dated 19 July
2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 3 January 1991.  The application submitted in this case
is dated     10 February 2007.

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 enlisted in the Regular Army on 23 May 1989.  She
completed basic training and advanced individual training and was awarded
military occupational specialty 71L (Administrative Specialist).  She was
assigned to Korea on or about 6 July 1990.

4.  The applicant’s discharge packet is not available.  She was honorably
discharged on 3 January 1991 with a narrative reason for separation of
Personality Disorder.

5.  The applicant provided a VA Rating Decision, dated 8 August 2006, that
shows she was granted a 100 percent service-connection disability rating
for PTSD, also claimed as sexual trauma and sexual harassment.  She was
also diagnosed with migraine headaches and bipolar disorder with borderline
personality traits (not service connected).
6.  The VA Rating Decision noted that during a hearing held on 2 May 2006,
the applicant indicated she had been sexually assaulted and harassed by a
noncommissioned officer (NCO) in Korea after she filed a complaint.  The
NCO returned two weeks later with some of his friends who all sexually
assaulted her. The NCO then continued to harass her with threatening phone
calls.  She stated there had initially been witnesses to those incidents;
however, they eventually all declined to provide any testimony on her
behalf.  She became very stressed and depressed and was prescribed an
antidepressant.  She began drinking quite heavily.  She spoke with her
father in the Fall of 1990, and he suggested she report the incidents to
the Inspector General (IG).  She indicated she had reported the incidents
to the IG.

7.  The VA Rating Decision noted that the applicant requested the findings
of the IG investigation but was told the IG is not required to maintain
records of cases beyond 6 years, and the applicant’s case was 16 years old.
 The Rating Decision noted that her records showed a Request for Mental
Health Consultation, dated 25 October 1990.  The request was made for
several reasons including:  she had stated she was under medication for
depression; she had requested an annulment due to financial problems; she
had accused an NCO of attempting to make a pass at her; and she had
verbally expressed contemplation of suicide.  The Mental Status Evaluation
was conducted on 29 November 1990 and diagnosed her with a Borderline
Personality Disorder.

8.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  At the time, paragraph 5-13 set the
policy and prescribed procedures for separating members with a personality
disorder (not amounting to a disability) that interfered with assignment to
or performance of duty when so diagnosed by a physician trained in
psychiatry and psychiatric diagnosis.  Separation because of personality
disorder was authorized only if the diagnosis concluded the disorder is so
severe that the Soldier's ability to function effectively in the military
environment was significantly impaired.

9.  Army Regulation 635-40 governs the evaluation of physical fitness of
Soldiers who may be unfit to perform their military duties because of
physical disability.  In pertinent part, it states 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 Soldier reasonably may be expected to perform because of his or
her office, grade, rank, or rating.

10.  Title 38, U. S. Code, sections 1110 and 1131, 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.

11.  Until certain provisions of the law were changed in fiscal year 2004,
a common misconception was that veterans could receive both a military
retirement for physical unfitness and a VA disability pension.  Under the
law prior to 2004, a veteran could only be compensated once for a
disability.  If a veteran was receiving a VA disability pension and the
Board corrected the records to show the veteran was retired for physical
unfitness, the veteran would have had to have chosen between the VA pension
and military retirement.  The new law does not apply to disability retirees
with less than 20 years of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s discharge packet and service medical records are not
available.  They might be in the VA’s possession, as the VA Rating Decision
noted that her records showed a Request for Mental Health Consultation,
which was conducted on 29 November 1990.  The request was made for several
reasons including:  she had stated she was under medication for depression;
she had requested an annulment due to financial problems; she had accused
an NCO of attempting to make a pass at her; and she had verbally expressed
contemplation of suicide.  The Mental Status Evaluation diagnosed her with
a Borderline Personality Disorder.

2.  Unfortunately, it appears the applicant did not inform the Army’s
mental health evaluator that she had been sexually assaulted or that she
had complained or was going to complain to the IG that the NCO had sexually
assaulted her.

3.  It is presumed that the applicant was diagnosed with a personality
disorder by competent military medical personnel.  It is noted that the VA
also diagnosed the applicant with borderline personality traits, so the
Army’s diagnosis of personality disorder does not appear to be out of line
with her current diagnoses (given the information it appears the applicant
gave to the mental health evaluator at the time).  In the absence of
evidence to the contrary, it is presumed that the discharge proceedings
were conducted in accordance with law and regulations applicable at the
time.  Without the discharge packet, it cannot be determined if the
applicant raised the issue of the sexual assault at any time during the
discharge proceedings.

4.  “PTSD due to Sexual Assault/Harassment” is not an authorized reason for
separation.  Had the applicant been identified as having PTSD at the time,
and had it been determined that her PTSD made her unfit to perform her
military duties, she might have been eligible for processing through the
physical disability system and a possible physical disability separation.
However, 16 years have now passed and it cannot be determined if she would
have been eligible for a physical disability separation.

5.  Neither does the rating action by the VA necessarily demonstrate an
error or injustice on the part of the Army.  The VA, operating under its
own policies and regulations, assigns disability ratings as it sees fit.
The VA is not required by law to determine medical unfitness for further
military service in awarding a disability rating, only that a medical
condition reduces or impairs the social or industrial adaptability of the
individual concerned.  Again, 16 years have passed and it cannot be
determined if the applicant would have been eligible for a physical
disability separation in 1991.

6.  Regrettably, there is insufficient evidence that would warrant changing
the applicant’s narrative reason for separation.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 3 January 1991; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on           2 January 1994.  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

__lds___  __eif___  __rjf___  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.




                                  __Linda D. Simmons____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070002622                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070807                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |108.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]