IN THE CASE OF:	  

	BOARD DATE:	  11 June 2008

	DOCKET NUMBER:  AR20080003880 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that the reason for his discharge be changed from personality disorder to medical.  

2.  The applicant states, in effect, that he suffered from a traumatic brain injury (TBI) in December 1985, and is currently an 80 percent (%) disabled veteran as a result of this injury.  He claims he was misdiagnosed by the Psychiatrist at Womack Army Hospital following a suicide attempt.  He claims this is the same hospital that kicked him out after he was assaulted and suffered the TBI because they thought he was drunk.  He states that after spending about a month in the hospital, he was sent home for rest and then returned to active duty with limited responsibilities.  He states that he became depressed and disoriented as a result of the TBI and tried to kill himself in April 1986.  He indicates that it is now very clear in the medical world that a TBI injury causes depression and episodes like he had.  He states that he is also submitting evidence that clarifies that when a member suffers a TBI, he/she can not be classified as having a personality disorder.  He further states that he has suffered with the personality disorder discharge for over 20 years and would like his record changed to reflect this.  He claims he was not aware of the error until December 2007, at which time he was informed of this fact by a Nurse/Psychologist counselor at a Department of Veterans Affairs (VA) clinic.  

3.  The applicant provides a self-authored statement, a 1987 preliminary neurological screening test report, and Diagnostic and Statistical Manual (DSM) diagnosis guidance related to a personality disorder in support of his 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 record shows that he enlisted in the Regular Army and entered active duty on 14 October 1982, and that he was trained in and awarded military occupational specialty (MOS) 31J (Teletypewriter Repairer).  

3.  The applicant's record shows that he was last promoted to specialist (SPC) on 25 June 1985, and that this is the highest rank he attained while serving on active duty.  It also shows that during his active duty tenure, he earned the Army Service Ribbon, Parachutist Badge, and Expert Marksmanship Qualification Badge with Rifle Bar.  His record documents no acts of valor, significant achievement, or service warranting special recognition.  

4.  The applicant's record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following three separate occasions for the offenses indicated:  5 November 1984, for dereliction of duty; 
2 January 1985, for attempting to sign another Soldier out on leave; and 18 June 1985, for the wrongful use of marijuana.  

5.  On 10 July 1985, a bar to reenlistment on the applicant, which was based on his disciplinary history, and his displayed lack of judgment and irresponsible conduct, was approved by the proper authority.  

6.  On 21 May 1986, the applicant underwent a mental status evaluation.  The evaluating physician determined the applicant had the mental capacity to understand and participate in separation proceedings, and that he was mentally responsible.  He further found the applicant met regulatory retention requirements.  


7.  A Report of Medical Examination (SF 88) on file shows that the applicant underwent a separation medical examination on 21 May 1986.  This document although listing the skull fracture/brain damage experienced by the applicant, also confirms the diagnosed personality disorder, and confirms that the examining physician determined the applicant was medically fit for retention/separation.  This examination report gives no indication that the applicant suffered from a mentally or physically disabling condition that would have warranted his separation processing through medical channels.  

8.  On 6 June 1986, the unit commander notified the applicant of his intent to recommend his separation under the provisions of Paragraph 5-13, Army Regulation 635-200, by reason of personality disorder.  The unit commander cited the applicant's immature personality disorder diagnosis as the basis for taking the action.  

9.  The applicant consulted with legal counsel on 6 June 1986, and was advised of the basis of the contemplated separation action and its effects.  He was also advised of the rights available to him and of the effects of a waiver of those rights.  Subsequent to this counseling, the applicant elected not to submit statements in his own behalf.  

10.  A Report of Mental Status Evaluation on file, dated 17 June 1986, shows the Chief, Psychiatry Services, completed a second mental status evaluation of the applicant, and confirmed the diagnosis of immature personality disorder.  He indicated that the applicant's maladjustment to military service reflected a lifelong pattern of recurrent and immature behavior, as well as his inability to relate effectively to others.  He finally recommended that the preferred course of action was that appropriate command administrative corrective measures be taken, rather than treatment through medical channels.

11.  On 26 June 1986, the separation authority approved the applicant's discharge under the provisions of Paragraph 5-13, Army Regulation 635-200, by reason of personality disorder, and directed the applicant receive an honorable discharge (HD).  On 10 July 1986, the applicant was discharged accordingly.  

12.  The separation document (DD Form 214) issued to the applicant on 10 July 1986, the date of his discharge, shows he held the rank of PFC at that time, and that he had completed a total of 3 years, 8 months, and 27 days of active military service.  It also identifies the authority and reason for discharge, and the applicant authenticated the separation document with his signature in Item 21 (Signature of Member Being Separated) on the date of his discharge.  

13.  The applicant provides results from a 1987 VA preliminary neurological screening that indicates the results were indicative of mild to moderate brain damage.  He also provides a DSM information paper containing the general diagnostic criteria for a personality disorder diagnosis.  The applicant highlights a portion that indicates that the enduring pattern cannot be due to the direct physiological effects of a substance or a general medical condition such as a head injury.  

14.  There is no indication that the applicant applied to the Army Discharge Review Board for a change to the reason for his discharge within its 15-year statute of limitations.  

15.  Army Regulation 635-200 (Enlisted Administrative Separations) provides the policy regarding the administrative separations of Army enlisted personnel.  Paragraph 5-13 contains guidance on separation by reason of personality disorder.  It states, in pertinent part, that a Soldier may be separated for a personality disorder (not amounting to disability) that interferes with assignment or with performance of duty.  

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and 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.  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.  Separation by reason of disability requires processing through the PDES.  

17.  Chapter 4 of the same regulation contains guidance on processing through the PDES, which includes the convening of a Medical Evaluation Board (MEB) to document a Soldier's medical status and duty limitations insofar as duty is affected by the soldier's status.  If the MEB determines a Soldier does not meet retention standards, the case will be referred to a Physical Evaluation Board (PEB).  The PEB evaluates all cases of physical disability equitably for the Soldier and the Army.  The PEB also investigates the nature, cause, degree of severity, and probable permanency of the disability of soldiers whose cases are referred to the board.  It also evaluates the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating.  Finally, it makes findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.

18.  Title 38, United States 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.  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.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards and the disability ratings assigned by proper military medical authorities during the applicant’s processing through the Army PDES. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the reason for his discharge should be changed from personality disorder to medical was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  By regulation, 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 their office, grade, rank, or rating.  It further stipulates that separation by reason of disability (medical) requires processing through the PDES.  

3.  The evidence of record in this case shows the applicant's personality disorder diagnosis and his maladjustment to military service was the result of a lifelong pattern of recurrent and immature behavior, as well as his inability to relate effectively to others, as evidenced by the Chief, Psychiatry Services’ mental status evaluation on file.  Although the applicant did in fact suffer a head injury in December 1985, his record of maladjustment to the military (personality disorder) was revealed well before he sustained this injury, as evidenced by his record of NJP for various acts of misconduct between 5 November 1984 and 18 June 1985.  As a result, it is clear the enduring personality disorder pattern was not due to the physiological effects of his head injury.  

4.  The evidence of record contains no indication that the head injury the applicant suffered disqualified him from further active duty service, or that it was sufficiently disabling to support his processing through the Army's PDES at the time of his discharge processing, as evidenced by the separation medical examination on file, which confirms he was determined to be qualified for retention/separation by competent medical authorities at the time.  

5.  The neurological screening document results provided by the applicant that indicate mild to moderate brain damage, and any possible VA disability rating he may have received subsequent to his discharge, fail to confirm he suffered from a physically or mentally disabling condition that would have warranted his separation processing through the PDES at the time of his discharge.  

6.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  

7.  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.

8.  The applicant is advised that 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.  The VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  However, these changes do not call into question the application of the fitness standards applied by military medical authorities at the time of his discharge.  As a result, the VA is the appropriate agency to provide him medical treatment and disability compensation for service connection medical conditions that were not found permanently disabling at the time of his discharge.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X____  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.



      _________X______________
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080003880



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ABCMR Record of Proceedings (cont)                                         AR20080003880


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