IN THE CASE OF:	  

		BOARD DATE:	  26 February 2009

		DOCKET NUMBER:  AR20080017931 


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, amendment to the narrative reason for his separation in Item 28 (Narrative Reason for Separation) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) from "Personality Disorder" to "Post Traumatic Stress Disorder (PTSD)."

2.  The applicant states, in effect, that he believes he should have been discharged due to PTSD which is more in order as his record indicates.  He was discharged for "Personality Disorder."  He had no issues prior to deployment and his issues began in Kuwait.  He further states, in effect, that he believes the issues leading to his discharge should be reviewed per the 28 January 2008 Defense Authorization Bill.  

3.  The applicant provides no additional documentation 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 military records show he enlisted in the Regular Army, in pay grade E-1, on 5 July 2000, for 4 years.  He completed training and was awarded military occupational specialty (MOS) 19K (M1 Armor Crewman). 

3.  On 23 August 2002, the applicant accepted punishment under Article 15, Uniform Code of Military Justice, for failing to go to his appointed place of duty.  His punishment included a reduction to pay grade E-1, a forfeiture of $552.00 pay per month for two months, and 30 days extra duty (both suspended, to be automatically remitted if not vacated before 22 January 2002), 60 days restriction, and an oral reprimand.  He was reduced to pay grade E-1 on 23 August 2002.

4.  On 27 August 2002, the applicant received counseling for consideration of his separation from the Army due to attitude and patterns of misconduct.  The applicant was advised that according to his doctor, he met the criteria for separation in accordance with Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), Chapter 5-13, by reason of personality disorder.  On the same date, he agreed with the counseling.

5.  On 30 September 2002, the applicant received counseling for separation from the Army under Army Regulation 635-200, Chapter 5-13.  The applicant was advised that he had been given many opportunities to change his unacceptable behavior, but he continued to choose not to correct himself.  On the same date, he agreed with the counseling.

6.  On 11 October 2002, the applicant's unit commander notified the applicant that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, Chapter 5-13, with an honorable discharge.  

7.  On 16 October 2002, after consulting with counsel, the applicant acknowledged the proposed action for his separation for personality disorder under Army Regulation 635-200, Chapter 5-13, its effects, and the rights available to him.  The applicant acknowledged that he understood that since he had less than 6 years of total active service he was not entitled to have his case 



heard before a board of officers.  The applicant waived his rights to consideration 
of his case by an administrative separation board as long as he would receive an 
honorable discharge.  He elected not to submit statements in his own behalf.  

8.  On 22 October 2002, the applicant's battalion commander recommended the applicant be separated from the Army under the provisions of Army Regulation 635-200, Chapter 5-13, for personality disorder, and issued an honorable discharge.

9.  On 25 October 2002, the separation authority approved the recommendation for the applicant's discharge, directed that the characterization of his service be honorable, and that he be issued an Honorable Discharge Certificate.

10.  The applicant was honorably discharged, in pay grade E-1, on 20 November 2002, under the provisions of Army Regulation 635-200, Chapter 5, paragraph 5-13, for personality disorder.  He was credited with 2 years, 4 months, and 16 days of total active service.  

11.  The applicant's records contain no evidence that he was diagnosed or treated for PTSD during his service in Kuwait or while he was on active duty.

12.  The applicant was issued a DD Form 215, dated 25 August 2008, adding his foreign service credit of 4 months and 21 days; adding the Army Achievement Medal, the Global War on Terrorism Service Medal, and the Global War on Terrorism Expeditionary Medal to his list of awards; and showing his service and dates in Kuwait.

13.  Army Regulation 635-200, Chapter 5, paragraph 5-13, specifies that a Soldier may be separated for personality disorders (not amounting to disability) that interferes 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.  When it has been determined that separation under this paragraph is appropriate, the unit commander will take the actions specified in the notification procedure.  The service of a Soldier separated per this paragraph will be characterized as honorable.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) according to the provisions of Title 10, U.S. Code, Chapter 61, and Department 
of Defense Directive (DoDD) 1332.18.  It 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.  If a Soldier is found unfit because of physical disability, this 
regulation provides for disposition of the Soldier according to applicable laws and regulations.  Soldiers are referred into the PDES system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), Chapter 3. 

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an amendment to Item 28 of his DD Form 214.  He has not shown error, injustice, or inequity for the relief he now requests.  

2.  The applicant contends that his discharge is incorrect.  However, the evidence shows the applicant was punished under Article 15 and counseled on his separation from the Army due to his attitude and misconduct.  He was advised that he had been given many opportunities to change his unacceptable behavior and had continued to choose not to correct himself.  He was also advised that his doctor stated that he met the criteria for separation under the provisions of Army Regulation 635-200, Chapter 5-13, for Personality Disorder.  There is no evidence he was diagnosed with or received treatment for PTSD during his Army service.

3.  The applicant has failed to present evidence that he experienced or was diagnosed with PTSD while serving in Kuwait or during his period of active duty.  He has also failed to show that the Narrative Reason for Separation issued to him was incorrect.  When presented with notification by his unit commander that he intended to recommend his separation under Chapter 5-13, he acknowledged the proposed separation action and waived his rights as long as he would receive an honorable discharge.  Therefore, the evidence clearly shows the applicant understood the reason for his discharge and the type of discharge that he would be receiving.

4.  The applicant's separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons for that separation were appropriate considering all of the facts of the case.

5.  In view of the foregoing, there is no basis for granting the applicant's request.


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)                                         AR20080017931



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ABCMR Record of Proceedings (cont)                                         AR20080017931



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