RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  06 May 2008
	DOCKET NUMBER:  AR20080000050 


	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.




Director
   

Analyst

      The following members, a quorum, were present:


M

Chairperson

M

Member

M

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 separation authority and narrative reason for separation be changed to reflect that he was retired due to permanent disability.

2.  The applicant essentially states that he was evaluated by the Department of Veterans Affairs (DVA), and received a service-connected disability for an adjustment disorder and post-traumatic stress disorder (PTSD).  He also states that his DVA disability rating has subsequently turned into a 100 percent permanent disability rating; therefore, he never had a personality disorder.  He further states that he should have been medically retired from the military.

3.  The applicant provides "Member – 1" and "Member – 4" copies of his 
DD Form 214 (Certificate of Release or Discharge from Active Duty), his DVA Rating Decision, dated 29 September 1999, showing that he was initially rated 
30 percent disabled for adjustment disorder with mixed anxiety and depressed mood with history of PTSD; his DVA Rating Decision, dated 4 March 2005, which increased his 30 percent disability rating as described above to 70 percent, effective 1 May 2004 and also renamed his evaluation as major depressive disorder, recurrent, without psychosis, PTSD, anxiety disorder, not otherwise specified; his DVA Rating Decision, dated 13 October 2005, which continued his 70 percent disability rating for the above evaluation, but also entitled him to individual unemployability effective 2 April 2005; a letter, dated 17 November 2005, from the DVA which indicated that the applicant is permanently and totally disabled due to service connected disability or disabilities; and an article from the September 2007 Veterans of Foreign Wars magazine regarding 22,000 troops discharged with "personality disorders" in support of this application.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2.  The applicant's military records show that he enlisted in the Army National Guard in March 1988.  He completed basic and advanced individual training and was awarded military occupational specialty (MOS) 13B (Cannon Crewman).  He enlisted in the Regular Army on 26 August 1992.  

3.  On 20 March 1998, the applicant was issued a permanent physical profile for schizophreniform disorder and PTSD, and was referred to a Medical Evaluation Board (MEB).

4.  On 13 April 1998, a MEB recommended that the applicant be referred to a Physical Evaluation Board (PEB), and indicated that the applicant did not desire to continue on active duty under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  On 20 April 1998, the applicant concurred with the findings and recommendations of the MEB.  It was noted that the MEB consultation indicated that the applicant served in heavy combat in Panama and in Operation Desert Storm.  However, the available records could not conclusively confirm that he ever served in Panama.  Additionally, although it could be confirmed that the applicant served in Southwest Asia based upon his award of the Southwest Asia Service Medal with One Bronze Service Star, item 9 (Awards, Decorations and Campaigns) of the applicant's DA Form 2-1 (Personnel Qualification Record – Part II) shows that he only participated in the Southwest Asia Cease-Fire Campaign or, in other words, after hostilities ended.  As a result, it could not be conclusively established that the applicant ever actually participated in combat.

5.  On 18 June 1998, a PEB convened, and determined that review of the applicant's records provided insufficient evidence that he had physical impairments that precluded the satisfactory performance of duty by a Soldier of his grade and MOS, and was found fit for duty under the provisions of paragraph 3-1, Army Regulation 635-40.  This PEB also evaluated diagnoses of chronic generalized anxiety disorder and schizotypal personality disorder which existed prior to service.  It determined that the applicant's primary impairment from continued military service was considered to be the personality disorder which, having been in existence prior to service, cannot be rated.  As a result, the applicant's case was returned with a recommendation for consideration of an administrative separation for him.  This PEB also determined that the applicant's anxiety disorder was not considered of a degree of severity to cause unfitness for duty.  

6.  On 23 June 1998, the applicant concurred with the findings and recommendations of the PEB.

7.  Although the facts and circumstances pertaining to the applicant’s discharge, i.e., his separation packet, are not contained in the available records, his military records do contain a properly constituted DD Form 214.  This DD Form 214 shows that the applicant was honorably discharged from the Regular Army on 
23 September 1998 under the provisions of Paragraph 5-13 (Separation Because of Personality Disorder), Army Regulation 635-200 (Enlisted Personnel).  Item 28 (Narrative Reason for Separation) of the applicant's 
DD Form 214 has an entry of "Personality Disorder."

8.  The applicant provided his DVA Rating Decision, dated 29 September 1999, showing that he was initially rated 30 percent disabled for adjustment disorder with mixed anxiety and depressed mood with history of PTSD.  He also provided his DVA Rating Decision, dated 4 March 2005, which increased his 30 percent disability rating as described above to 70 percent, effective 1 May 2004, and also renamed his evaluation as major depressive disorder, recurrent, without psychosis, PTSD, anxiety disorder, not otherwise specified.  He further provided his DVA Rating Decision, dated 13 October 2005, which continued his 70 percent disability rating for the above evaluation, but also entitled him to individual unemployability effective 2 April 2005; and a letter, dated 17 November 2005, from the DVA which indicated that the applicant is permanently and totally disabled due to service connected disability or disabilities.

9.  The applicant also provided an article from the September 2007 Veterans of Foreign Wars magazine regarding 22,000 troops discharged with "personality disorders."  This article essentially indicated that some veterans believe that separating troops because of personality disorders is a convenient method to avoid paying disability payments and providing medical care to veterans suffering from PTSD.  

10.  Paragraph 5-13 of Army Regulation 635-200 provides the criteria for discharge because of a personality disorder.  It states, in pertinent 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.

11.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES): 
P-physical capacity or stamina, U-upper extremities, L-lower extremities, 
H-hearing and ears, E-eyes, and S-psychiatric.  An individual having a numerical designation of "1" under all factors is considered to possess a high level of medical fitness.  A physical profile designator of "2" under any or all factors indicates that an individual possesses some medical condition or physical defect that may require some activity limitations.  A profile containing one or more numerical designators of "3" signifies that the individual has one or more medical conditions or physical defects that may require significant limitations. The individual should receive assignments commensurate with his or her physical capability for military duty.  A profile serial containing one or more numerical designators of "4" indicates that the individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited.  The numerical designator "4" does not necessarily mean that the individual is unfit because of physical disability as defined in Army Regulation 635-40.  Army Regulation 635-40 sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  

12.  Army Regulation 635-40 provides, in pertinent part, 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. 

13.  Title 38, United States Code, sections 310 and 331, permits the DVA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The DVA, however, is not required by law to determine medical unfitness for further military service.  The DVA, 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 DVA benefits based on an evaluation by that agency.

14.  There is a difference between the DVA 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 DVA may find a Soldier unfit by reason of service-connected disability and may even initially assign a higher rating.  The DVA’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.

15.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
       
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his separation authority and narrative reason for separation should be changed to reflect that he was retired due to permanent disability.

2.  The evidence provided by the applicant was carefully considered.  However, 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.

3.  While it is acknowledged that the applicant was diagnosed with PTSD prior to his discharge, his PEB determined that the applicant's records provided insufficient evidence that he had physical impairments that precluded the satisfactory performance of duty by a Soldier of his grade and MOS, and was found fit for duty under the provisions of paragraph 3-1, Army Regulation 635-40. This PEB also evaluated diagnoses of chronic generalized anxiety disorder and schizotypal personality disorder which existed prior to service, and determined that the applicant's primary impairment (emphasis added) from continued military service was considered to be the personality disorder which, having been in existence prior to service, could not be rated.  As a result, the applicant's case was returned with a recommendation for consideration of an administrative separation for him.  This PEB also determined that the applicant's anxiety disorder was not considered of a degree of severity to cause unfitness for duty.  

4.  Although the facts and circumstances pertaining to the applicant’s discharge, i.e., his separation packet, are not contained in the available records, it is clear that the applicant was honorably discharged from the Regular Army on 
23 September 1998 under the provisions of Paragraph 5-13, Army Regulation 635-200 due to a personality disorder.  The applicant’s administrative discharge was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant's rights.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances. 

5.  The fact that the DVA, 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.

6.  In view of the foregoing, there is insufficient basis for granting relief to the applicant in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




      ___        XXX                ___
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080000050



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508