IN THE CASE OF:	  

	BOARD DATE:	  8 July 2008

	DOCKET NUMBER:  AR20080005345 


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 a letter written by her husband through two United States Senators that her two DD Forms 214 (Certificate of Release or Discharge from Active Duty) be changed as to the narrative reasons for discharge and that the US Army compensate her for the anguish she and her husband have experienced as a result of the two fraudulent discharges perpetrated against her.

2.  The applicant states in a letter written by her husband to a United States Senator that she was discharged in 1997 with the narrative reason for separation listed as "personality disorder."  She states civilian doctors have examined her and she has no personality disorder.  She was again discharged in 2001, this time with the narrative reason for separation listed as "failure to meet procurement medical fitness standards."  She states civilian doctors have examined her and she has no knee problems.  In both cases, she was discharged for specific reasons without ever conducting the necessary examinations to validate the diagnoses.

3.  The applicant states in the letter written by her husband that the fraudulent discharges "maliciously slandered and defamed" her.  Because of this, she has been unable to find work in her chosen career field even though she has an Associates Degree in Medical Assisting.

4.  The applicant provides:

	a.  a 9-page letter written by her husband to a United States Senator, dated 16 February 2008;

	b.  a 19 March 2008 letter from a United States Senator to the Chief of Army Legislative Liaison, The Pentagon, Washington, D.C.;

	c.  a 2 April 2008 letter from a United States Senator to the Chief of Army Legislative Liaison, The Pentagon, Washington, D.C.;

	d.  a copy of a United States Senate Consent for Release of Information signed by the applicant dated 31 March 2008; and

	e.  a photocopy of a photograph of a woman showing her wrists.

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 had two short, failed enlistments in the Regular Army (RA).  On 6 January 1997, she enlisted in the RA and served 2 months and 26 days before she was discharged by reason of a "personality disorder."  On 12 July 2001, she enlisted in the RA and served 2 months and 10 days before she was discharged by reason of "failure to meet procurement medical fitness standards."

3.  During her initial enlistment, the applicant's records show she was treated for severe pelvic pain, right knee pain, headaches of several years' duration, and bilateral ankle pain.  On 28 February 1997, she was counseled by training cadre when it came to their attention she had told a fellow trainee she was going to kill herself.  On 19 March 1997, a mental status evaluation was conducted by the Chief, Inpatient Psychiatry, a medical doctor trained in psychiatry.  She was diagnosed as having a "Personality Disorder, Not Otherwise Specified."  She was found to have the mental capacity to understand and participate in administrative separation proceedings and she was cleared for any administrative or judicial action as deemed appropriate by the command.

4.  The applicant started the enlistment process again and completed her entrance physical examination on 3 December 1999.  Her Report of Medical Examination noted she had mild pes cavus, asymptomatic.  It also noted she had previously been discharged from the Army for a personality disorder and that she had a permanent 3 (P-3) profile under the psychiatric (S) portion of the PULHES (111113); however, a waiver was recommended.  The waiver was disapproved by the US Army Recruiting Command (USAREC) Command Surgeon on 7 February 2000.

5.  The applicant countered with a psychological evaluation conducted by a licensed civilian psychologist.  In this evaluation, it was revealed that she had received monthly counseling for six months because of peer problems at school. She also related numerous traumatic experiences beginning when she was raped at 15 years of age.  She was again raped at 17 years of age by an uncle.  Upon marriage, her first husband was very abusive; he threatened her with a gun and raped her.  She stated her first husband was shot and killed in front of her by an uncle.  The licensed civilian psychologist stated the applicant's previous problems did not support a diagnosis of a Personality Disorder.  

6.  Inexplicably, the applicant's recruiter requested and obtained another waiver – this time from the US Army Personnel Command (now the US Army Human Resources Command, Alexandria, VA) – which enabled her to enlist in the RA for up to 4 years, in pay grade E-3.

7.  The applicant enlisted in the Regular Army on 12 July 2001.  On this second enlistment, she was treated for bilateral knee pain and pain in the right femur.  It was noted at this time that her pes cavus was extreme.  On or about 14 August 2001, she was examined and found to have lax patellar ligament/tendons with a positive "RP" grind, positive genu recurvatum (hyperextension of the knee), and moderate/severe pes cavus.  She did meet medical retention standards and it was recommended she be separated for failure to meet medical procurement standards, not permanently service aggravated.  [NOTE:  Pes cavus is a medical term for a cavus deformity of the foot due to a fixed plantar flexion of the foot. There is a high arched foot; it is the opposite of flat feet.  It is much less common than flat feet and the cause may be neurological, orthopedic or neuromuscular.  Unlike most cases of flat feet, pes cavus can be painful because of metatarsal compression.]

8.  The applicant disagreed with the medical determination and requested her case be returned to the medical approving authority for reconsideration.  On 17 September 2001, the discharge authority declined and determined she would be separated from the Army.

9.  The applicant again tried to enlist.  On 29 April 2003, she provided a letter from a civilian orthopaedic clinic.  The letter indicated she was being treated at the clinic for bilateral anterior knee pain and that an examination on 28 April 2003 found her to have normal exams in both knees.  She had no evidence of intra-articular abnormalities.  Her cartilage appeared intact and her ligaments were stable.  The US Army Recruiting Battalion, Tampa, FL requested a medical waiver from USAREC.  On 8 December 2003, the USAREC Command Surgeon disapproved the request for waiver.  

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 5-13 sets the policy and prescribes procedures for separating members with a Personality Disorder (not amounting to a disability) that interferes with assignment to or performance of duty when so diagnosed by a physician trained in psychiatry and psychiatric diagnosis or a licensed clinical psychologist.

	b.  Paragraph 5-11 sets the policy and prescribes procedures for separating members who were not medically qualified under procurement medical fitness standards when accepted for enlistment or who became medically disqualified under these standards prior to entry on active duty.  Medical proceedings, regardless of the date completed, must establish that a medical condition was identified by appropriate military medical authority within 6 months of the Soldier’s entrance of active duty that would have permanently or temporarily disqualified him or her for entry into the military service or entry on active duty had it been detected at that time and does not disqualify him or her for retention.

11.  The Diagnostic and Statistical Manual of Mental Disorders, 4th edition (DSM-IV) categorizes psychiatric diagnoses.  Published by the American Psychiatric Association, it covers all mental health disorders for both children and adults.  It also lists known causes of these disorders, statistics in terms of gender, age at onset, and prognosis as well as some research concerning the optimal treatment approaches.

	a.  It lists ten specific Personality Disorders.  Personality Disorder Not Otherwise Specified is a category provided for two situations:  (1) the individual's personality pattern meets the general criteria for a Personality Disorder and traits of several different Personality Disorders are present, but the criteria for any specific Personality Disorder are not met; or (2) the individual's personality 
pattern meets the general criteria for a Personality Disorder, but the individual is considered to have a Personality Disorder that is not included in the classification.

	b.  Personality traits are enduring patterns of perceiving, relating to, and thinking about the environment and oneself that are exhibited in a wide range of social and personal contexts.  Only when personality traits are inflexible and maladaptive and cause significant functional impairment or distress do they constitute Personality Disorders.  The essential feature of a Personality Disorder is an enduring pattern of inner experience and behavior that deviates markedly from the expectations of the individual's culture and is manifested in at least two of the following areas:  cognition; affectivity; interpersonal functioning; or impulse control.  This enduring pattern is inflexible and pervasive across a broad range of personal and social situations and leads to clinically significant distress or impairment in social, occupational, or other important areas of functioning.  The pattern is stable and of long duration, and its onset can be traced back at least to adolescence or early adulthood.

12.  Army Regulation 40-501 governs medical fitness standards for enlistment, retention, and separation.  It provides, in pertinent part:

	a.  Medical fitness standards cannot be waived by medical examiners or by the examinee.  Examinees initially reported as medically unacceptable when the medical fitness standards are applied may request a waiver of the medical fitness standards in accordance with the basic administrative directive governing the personnel action.  Upon such request, the designated administrative authority or his or her designees may grant such a waiver in accordance with current directives.

	b.  Chapter 2-10 states, "Current or history of clubfoot or pes cavus that prevents the proper wearing of military footwear or impairs walking, marching, running, or jumping is disqualifying."

	c.  Chapter 2-11 states, " Current or history of chondromalacia, including, but not limited to chronic patello-femoral pain syndrome and retro-patellar pain syndrome, chronic osteoarthritis or traumatic arthritis is disqualifying."

	d.  Chapter 2-27 states, "Current or history of personality disorder is disqualifying.  History (demonstrated by repeated inability to maintain reasonable adjustment in school, with employers or fellow workers, or other social groups), interview, or psychological testing revealing that the degree of immaturity, instability, personality inadequacy, impulsiveness, or dependency will likely interfere with adjustment in the Armed Forces is disqualifying.
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.  In pertinent part, it states that according to accepted medical principles, certain abnormalities and residual conditions exist that, when discovered, lead to the conclusion they must have existed or have started before the individual entered the military service.  Manifestation of lesions or symptoms of chronic disease from date of entry on active military service (or so close to that date of entry that the disease could not have started in so short a period) will be accepted as proof that the disease existed prior to entrance into active military service.

14.  Army Regulation 15-185 prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR).  It provides the Army, by law, may pay claims for amounts due to applicants as a result of correction of military record.  The Army may not pay attorney's fees or other expenses, including compensation claims incurred by or on behalf of an applicant in connection with an application for correction of military records under 10 USC 1552.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states her two DD Forms 214 are "fraudulent" and requests the narrative reasons for discharge be changed from "personality disorder" and "failure to meet procurement medical fitness standards."  She contends these two reasons for discharge were not validated by medical examination.  She also seeks compensation for the anguish she and her husband have experienced.

2.  The applicant was evaluated by a medical doctor trained in psychiatry and was determined to have a "personality disorder not otherwise specified."  This was a "validated medical examination" by a qualified doctor.  The applicant's arguments to the contrary are not persuasive.

3.  The applicant was determined by competent medical authority to have failed to meet procurement medical fitness standards in 2001, following her second enlistment.  She was diagnosed with a variety of problems, including bilateral knee pain, positive retropatellar grind, right femur pain, positive genu recurvatum, and moderate/severe pes cavus.  Any of these conditions are disqualifying for enlistment and may be used to justify failure to meet procurement medical fitness standards.  Even if it is assumed, arguendo, that the applicant's knee condition was not disqualifying, she would have been disqualified for pes cavus.  Her argument is, therefore, not persuasive.

4.  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 her narrative reasons for discharge on her DD Forms 214 are incorrect.

5.  The ABCMR may pay claims for amounts due to applicants as a result of correction of military record, but it may not pay attorney's fees or other expenses, including compensation claims for anguish.

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
      
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)                                         AR20080005345



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ABCMR Record of Proceedings (cont)                                         AR20080005345



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