IN THE CASE OF:	  

		BOARD DATE:	  	  10 March 2009

		DOCKET NUMBER:  AR20080018080 


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, correction of the information in his records regarding three diagnosed medical conditions and removal of all statements relating to suicidality and homicidality.

2.  The applicant states, in effect, several statements on his Entrance Physical Standards Board (EPSBD) Proceedings are not true.  The applicant states:

     a.  he claimed he had suicidal and homicidal thoughts that resulted from the tension of the training environment; however, he asserts those statements were not true and that basic training never re-activated any psychological symptoms.  He also states that after experiencing a few weeks of the intense physical tasks he decided to back out of the Army.  The applicant adds that it was difficult to convince the cadre of this, so he made a lengthy argument to convince them that he was going crazy as a pretense to get out of basic training.

     b.  the Diagnosis, Axis I area, shows he had Attention Deficit Hyperactivity Disorder (ADHD) and Dysthymia; however, he was never diagnosed with either of these conditions, he never believed he had them, and he never took medication for ADHD or Dysthymia.  He also states that the information on the 17-year old psychological evaluation from Doctor C___ was unknown to him and he never struggled with any symptoms of any psychological condition after childhood.  He adds the only diagnosis made was for Tourette’s syndrome (for one month) when he was eight years old, which was actually a mild diagnosis with no electrode brainwave scan, and he never took medication for Tourette's Disorder.
     c.  he and his father mentioned the old diagnosis, along with other things (some of which were forgotten by the applicant), to portray him as mentally incompetent in order to secure his separation from the Army.

     d.  he and his parents showed his old medical documents to Martin Army Community Hospital officials as a pretense to get him out of basic training and separated from the U.S. Army.

3.  The applicant provides a notarized self-authored statement, dated 25 October 2008; his DD Form 214 (Certificate of Release or Discharge from Active Duty) with an effective date of 23 September 2008; DA Form 4707 (EPSBD Proceedings), dated 29 August 2008; The Bradley Center, Columbus, Georgia, letter, dated 22 September 2008; page 7 of 9 of SF Form 86 (Questionnaire for National Security Positions), dated 13 May 2008; Maria C. C___, Ph.D., Clinical Psychologist, Psychological Evaluation, dated 26 September 1991; Statement of Services, dated 31 May 1993; and South Texas Neurology Associates, E.E.G., E.M.G., Evoked Response, San Antonio, Texas, Statement of Services, dated 
10 June 1993.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel records show he enlisted in the U.S. Army Reserve (USAR) for a period of 8 years on 13 May 2008 in the Delayed Entry Program (DEP).  He then enlisted in the Regular Army (RA) for a period of
5 years and 16 weeks and entered active duty on 31 July 2008.

2.  The applicant’s military personnel records contain a DD Form 2807-1 (Report of Medical History), dated 31 March 2008, that was completed by the applicant at the time of his enlistment examination and shows, in pertinent part, in the Section “Have You Ever Had or Do You Have Now” (which applies to items 10 through 28) the applicant placed a checkmark in the “No” column in response to each of the specified conditions, with the exception of Item 11h (Surgery to correct vision) for which he indicated “Yes.”  Item 29 (Explanation of “Yes” Answers) shows, in pertinent part, the applicant noted, “I had PRK surgery on my right eye last year.” This document also contains the statement:  “Examinee:  I certify the information on this form is true and complete to the best of my knowledge and belief, and no person has advised me to conceal or falsify any information about my physical and mental history.  I further understand that I may be requested to provide medical documentation regarding issues within my medical history.  I authorize any of the doctors, hospitals, clinics or insurance company(ies) to furnish the Department of Defense medical authority a complete transcript of my medical record for purposes of processing my application for military service.”  The applicant placed his signature on this document on 31 March 2008.
3.  The applicant’s military personnel records contain a DD Form 2808 (Report of Medical Examination), dated 31 March 2008, that was completed by the physician conducting the applicant’s enlistment examination and, in pertinent part, makes note of the applicant’s eye condition and shows the applicant was granted a medical waiver for this condition.

4.  The applicant’s military personnel records contain a DA Form 4707, dated
29 August 2008, that shows, in pertinent part, the evaluating physicians found that the applicant was a 26 year-old Basic Trainee on his initial enlistment when an existed prior to service (EPTS) condition was identified on 21 August 2008 after he was admitted to inpatient psychiatry at The Bradley Center for self-reported suicidality and homicidality in the context of not being able to tolerate the stress of the training environment.  Their findings also show the applicant reported a past psychiatric history significant for being diagnosed with ADHD, Tourette’s Disorder, and Dysthymia; he described struggling with symptoms of these mental illnesses up until shortly before coming in the Army; and that the stress of training re-activated his symptoms.  Their findings further show that written records were obtained that confirmed the applicant had been diagnosed with the above disorders.  The DA Form 4707 also shows:

   a.  the applicant did not meet medical fitness standards for enlistment under the provisions of Army Regulation 40-501 (Standards of Medical Fitness), Chapter 2 (Physical Standards for Enlistment, Appointment, and Induction), paragraph 2-27 (learning, psychiatric, and behavioral disorders); the medical condition EPTS; the applicant did not meet the retention standards of Army Regulation 40-501, Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement); and it was recommended the applicant be separated from the military service under the provisions of Army Regulation 
635-200 (Personnel Separations - Enlisted Personnel),  paragraph 5-11 (Separation of personnel who did not meet procurement medical fitness standards).

     b.  in the “Action By Service Member” section the applicant concurred with the medical board proceedings and requested to be discharged from the U.S. Army without delay.

     c.  in the “Action By Discharge Authority” section that the discharge authority approved the applicant’s discharge on 17 September 2008.

5.  The applicant’s separation packet contains a DA Form 2823 (Sworn Statement), dated 16 September 2008, that, in pertinent part, shows the applicant acknowledged he understood he was being discharged based on an EPTS medical condition and he confirmed that no one asked him to conceal any information about his medical history.  This document also shows the applicant initialed and signed the statement on 16 September 2008 and that the statement was also signed by both the applicant and his company commander.

6.  The applicant’s military personnel records contain his DD Form 214 that confirms he entered active duty on 31 July 2008 and was separated from the Army on 23 September 2008 with an uncharacterized discharge under the provisions of Army Regulation 635-200, paragraph 5-11 (failed medical/physical procurement standards).  At the time he had completed 1 month and 23 days of net active service during this period.

7.  In support of his application, the applicant provides, in pertinent part, the following documents:

     a.  the Bradley Center, Columbus, Georgia, letter, dated 22 September 2008, that shows the applicant was admitted to The Bradley Center Hospital from
21 August to 23 September 2008; was not given any psychiatric medications during the hospitalization; had done fairly well without any psychiatric medications; and that all current treatment will continue.

     b.  page 7 of 9 of an SF Form 86, dated 13 May 2008, that shows, in pertinent part, the applicant indicated he was charged with assault with intent to commit bodily injury on 17 July 2006 and that the charge was reduced to assault (with no fine) by the Bexar County Court, San Antonio, Texas.

     c.  Maria C. C___, Ph.D., Clinical Psychologist, Psychological Evaluation, dated 26 September 1991 and Statement of Services, dated 31 May 1993.  The Psychological Evaluation shows, in pertinent part, the applicant’s parents sought to obtain a baseline assessment of the applicant and that he was diagnosed the previous year with Tourette’s Syndrome.  This evaluation also shows that the doctor’s diagnostic impression of the applicant was, in pertinent part, (Axis I) Tourette’s Disorder; Undifferentiated Attention Deficit Disorder per history as well as present indicators; and Dysthymia, primary, early onset.  The Statement of Services shows the applicant received individual psychotherapy treatment on 
13 May and 20 May 1993, but was a “no show” on 27 May 1993.

     d.  South Texas Neurology Associates, E.E.G., E.M.G., Evoked Response, San Antonio, Texas, Statement of Services, dated 10 June 1993, that shows the applicant received follow-up treatment on 10 June 1993 with a diagnosis of Tourette's Syndrome.


8.  Army Regulation 40-501, Chapter 2, provides the causes for rejection for appointment, enlistment, and induction and paragraph 2-27, in pertinent part, specifies ADHD, current or history of personality disorder or other behavior disorders.

9.  Army Regulation 635-200, in effect at the time of the applicant's separation from active duty, prescribed policies and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 5 (Separation for Convenience of the Government), paragraph 5-11, in pertinent part, provides that 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 initial entrance on active duty in the RA.

10.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) provides policies, operating tasks, and steps governing the Official Military Personnel File (OMPF)).  This document states that only those documents listed in Table 2-1 (Composition of the OMPF) and Table 2-2 (Obsolete or no longer used documents) are authorized for filing in the OMPF.  Depending on the purpose, documents will be filed in the OMPF in one of three sections:  performance, service, or restricted.  Once placed in the OMPF, the document becomes a permanent part of that file.

11.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files, and ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. 

12.  Chapter 7 of Army Regulation 600-37 provides the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF. Paragraph 7-2 of this regulation states that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. 


13.  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.  The 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, in effect, the three diagnosed medical conditions and self-reported statements that are documented in his EPSBD Proceedings should be removed from his records because they are not true and were only offered as a pretense in support of his effort to obtain a discharge from the U.S. Army was carefully considered.  However, he provides insufficient evidence in support of his claim.

2.  The evidence of record shows that the applicant completed his Report of Medical History as part of his medical examination prior to his enlistment in the U.S. Army.  The evidence of record also shows that, with the exception for a medical condition that resulted in (right) eye surgery, the applicant did not document any other medical conditions that EPTS.

3.  The evidence of record shows the applicant entered active duty in the RA on 31 July 2008 and that he was admitted to inpatient psychiatry at The Bradley Center on 21 August 2008.

4.  The EPSBD Proceedings show the applicant provided the EPSBD a copy of a Psychological Evaluation, dated 26 September 1991, which documented that he was diagnosed for Axis I:  Tourette’s Disorder, Undifferentiated Attention Deficit Disorder, and Dysthymia.  The evidence of record also shows the applicant self-reported suicidality and homicidality in the context of not being able to tolerate the stress of the training environment.  The evidence of record further shows the EPSBD Proceedings documented that the applicant was diagnosed with ADHD (EPTS), Tourette’s disorder (EPTS), and Dysthymia (EPTS).  

5.  The evidence of record shows the applicant’s medical conditions EPTS and this was confirmed by medical documentation provided by the applicant at the time of his EPSBD.  In addition, the evidence of record shows the applicant’s self-reported statements were documented in the EPSBD Proceedings.  

Moreover, the evidence of record shows that the applicant concurred with, in pertinent part, the History of his EPTS Condition, Subjective Findings, and the 
Diagnosis contained in the EPSBD Proceedings.  Thus, notwithstanding the applicant’s current contentions, the evidence of record refutes the applicant’s claim that the information was offered as a pretense and is untrue.  Therefore, the applicant is not entitled to correction of his records in this case.

6.  By regulation, in order to remove a document from the OMPF, there must be clear and convincing evidence showing the document is untrue or unjust.  The applicant failed to submit evidence that the information and statements in the EPSBD Proceeding are untrue or unjust.  Thus, it is concluded that the DA Form 4707 that was approved on 17 September 2008 properly reflects the facts and circumstances at the time.  Therefore, the DA Form 4707 should not be altered or redacted to remove any entries recorded on the document, nor should the
DA Form 4707 be removed from the applicant's OMPF.

7.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  The applicant fails to provide such evidence.  Therefore, the applicant is not entitled to correction of his records concerning his medical diagnoses or removal of the information based upon his self-reported inclinations.

8.  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.

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)                                         AR20080018080



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ABCMR Record of Proceedings (cont)                                         AR20080018080



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