IN THE CASE OF:	  

	BOARD DATE:	  1 July 2008

	DOCKET NUMBER:  AR20080004291 


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, reconsideration of his earlier request to change his administrative separation due to Personality Disorder to a medical separation due to his having bipolar disorder.

2.  The applicant states that the Department of Veterans Affairs (VA) has classified him as bipolar, and he is currently drawing disability.

3.  The applicant provides three pages (two pages of one section and one page of another section) of a VA Rating Decision, dated 23 July 2007.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070011190 on 18 December 2007.

2.  The undated VA Rating Decision that was provided with the applicant’s original case appears to be the third page (i.e., the “one page of another section”) of his currently-submitted evidence.  The first two pages of the Rating Decision are new evidence that will be considered by the ABCMR.

3.  The applicant enlisted in the Regular Army on 13 November 2001.  

4.  On 15 June 2006, the applicant underwent a mental status evaluation.  The military psychiatrist remarked that the applicant was evaluated for symptoms of mood lability, affective instability, rage fits, and feelings of worthlessness and suicidal ideation.  His symptoms peaked due to domestic problems while he was deployed.  The military psychiatrist also stated that the applicant relayed that his pattern of behavior had been volitional and pervasive, albeit less severe, for most of his adult life.  Occurring prior to his military service, the mild mood symptoms and three prior suicide attempts indicated that the most disabling pathology in the applicant's situation at the time of his mental evaluation was due to his personality disorder.

5.  On 21 June 2006, the immediate commander notified the applicant of his intent to initiate separation action against him in accordance with paragraph 5-13 of Army Regulation 635-200 by reason of Borderline, Narcissistic Personality Disorder.  

6.  On 22 June 2006, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation for personality disorder and its effects.  He was advised of the rights available to him and of the effect of any action taken by him in waiving his rights.  He declined to submit a statement and waived his right to counsel representation.

7.  On 22 June 2006, the applicant’s Trial Defense Counsel requested the applicant's separation action be delayed pending the applicant obtaining a second mental evaluation.

8.  On 22 June 2006, the applicant underwent a second mental status evaluation. The military psychologist remarked that the applicant was evaluated for follow-up care and that he had homicidal ideation and plan, but denied intent at that time.  

9.  On 26 June 2006, the Chief, Inpatient Psychiatry Service, stated the applicant was medically evacuated from Iraq, and he was seen by mental health providers six times prior to his evacuation.  The apparent stressor at the time leading to his symptoms was finding out his spouse was having an affair.  The Chief, Inpatient Psychiatry Service added that her observation of the applicant led her to determine that the most impairing aspects of the applicant's illness were those symptoms caused by the deficiencies in his characterologic structure.  She concluded that the applicant suffered from a personality disorder. 

10.  On 28 June 2006, the separation authority disapproved the request to delay the separation action and approved the applicant's discharge under the provisions of paragraph 5-13 of Army Regulation 635-200 by reason of Personality Disorder.  The applicant was separated on 6 July 2006 with an honorable discharge by reason of Personality Disorder after completing a total of 4 years, 7 months, and 24 days of creditable active service.

11.  The applicant submitted three pages of a VA Rating Decision, dated 23 July 2007, showing that the VA granted him service connection for Type II, Bipolar Disorder with a 100 percent disability rating effective 7 July 2006.  He was also granted service connection for sleep apnea with a zero percent disability rating.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-13, specifies that a Soldier may be separated for personality disorders (not amounting to disability) that interfere with assignment or with performance of duty, when so disposed as indicated in the Soldier's ability to perform duty.  The diagnosis of personality disorder must have been established by a psychiatrist or doctoral-level clinical psychologist with necessary and appropriate professional credentials who is privileged to conduct mental health evaluations for the Department of Defense components.  

13.  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.  It states medical evaluation boards are convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the Soldier’s status.  A decision is made as to the Soldier’s medical qualification for retention based on the criteria in Army Regulation 40-501, chapter 3.  

14.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-35, states personality disorders are considered to render an individual administratively unfit rather than unfit because of physical illness or medical disability.  These conditions will be dealt with through appropriate administrative channels.  

15.  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 and retirees who have combined their military time and civil service time to qualify for a civil service retirement.  It does apply to those retired under TERA [Temporary Early Retirement Authority].

16.  Army Regulation 600-8-14 (Identification Cards, Tags, and Badges) states that honorably discharged veterans who are rated as 100 percent disabled from a service-connected injury or disease are entitled to a military identification card and commissary, exchange, and MWR (morale, welfare, and recreation) benefits. Medical benefits are received through the VA.

DISCUSSION AND CONCLUSIONS:

1.  It is acknowledged that the VA has diagnosed the applicant with bipolar disorder, rather than personality disorder, and has granted him a 100 percent disability rating due to this condition.  

2.  However, the Army has an interest in promoting the reliability of its medical records.  Alteration of a diagnosis in those records after the fact may lead to fundamental questions about the veracity of the records in this case and in general.  For these reasons, it would not be proper to change the reason for the applicant’s separation which would, in effect, alter a diagnosis in the applicant’s medical records.  

3.  The Secretary’s interest is in ensuring an orderly system in which a physician makes certain observations and diagnoses and recording them faithfully in the medical records at the time.  It would take an extraordinary showing to alter a diagnosis.  In the applicant’s case, a military psychiatrist and a military psychologist diagnosed him with a personality disorder.  That diagnosis was duly recorded in his medical records and, notwithstanding the VA’s diagnosis, he has not presented sufficient reason to alter the Army’s diagnosis upon which his administrative separation was based.  In the absence of evidence to the contrary it is presumed that the applicant was diagnosed by competent military medical authorities as having a personality disorder.  

4.  As far as military benefits are concerned, the applicant will not be harmed by the failure to change the reason for his diagnosis or the failure to grant him a medical separation.  Since he has an honorable discharge and since he is rated as 100 percent disabled by the VA he is entitled to a military identification card and commissary, exchange, and MWR benefits.  Medical benefits are received through the VA.  He would not be entitled to receive disability retired pay in addition to his VA disability pension since he had less than 20 years of active service.


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 to amend the decision of the ABCMR set forth in Docket Number AR20070011190 dated 18 December 2007.


							XXX
	_______________________
      	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)                                         AR20080004291



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ABCMR Record of Proceedings (cont)                                         AR20080004291



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