IN THE CASE OF:	

		BOARD DATE:	  5 February 2009

		DOCKET NUMBER:  AR20080019066 


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 his honorable discharge with the narrative reason for separation by reason of personality disorder be changed to a disability discharge.  

2.  The applicant states, in effect, that based on Department of Veterans Affairs (VA) records the military misdiagnosed his condition, classifying it as a personality disorder instead of Post-Traumatic Stress Disorder (PTSD).

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) and a VA rating data sheet in support of this 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 records show he enlisted in the Regular Army on 
30 November 1984.  He completed basic combat training and was awarded military occupational specialty (MOS) 51R (interior electrician) through the Army Civilian Acquired Skills Program.  He subsequently reenlisted on 28 October 1988 and on 13 March 1992, and extended his last enlistment for an additional 12 months.  The highest rank he attained while serving on active duty was staff sergeant (SSG)/pay grade E-6.

3.  The applicant's records show he served in Southwest Asia during the period 25 September 1990 through 13 April 1991 and in Somalia during the period 
8 January through 14 April 1993.

4.  On 23 September 1994, a mental status evaluation was conducted on the applicant by the Chief, Community Mental Health Service, a Medical Corps officer, in response to an inquiry from the command regarding the applicant's ongoing treatment and its potential impact on his duty performance.  The results show in the remarks block that the applicant has "a longstanding, maladaptive pattern of behavior that manifests itself primarily in his close interpersonal relationships and persists without modification or change."  The applicant was diagnosed as having a Depressive Disorder, not otherwise specified, in remission; a Partner Relational Problem; and a Narcissistic Personality Disorder.
The applicant was determined to meet medical retention standards, but was determined to have a character and behavior disorder.  The examining official opined that the command should consider the applicant's behavior to be under his voluntary control and that he is able to distinguish right from wrong and to conform to the standards of military discipline.  He further stated that the command will need to evaluate and consider the possibility of separation under chapter 5-13 [Army Regulation 635-200] should his pattern of behavior continue.  

5.  On 17 January 1995, the applicant acknowledged that his commander had notified him that he was being recommended for administrative separation from the service for personality disorder under the provisions of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), chapter 5, paragraph
5-13.  He further acknowledged that he had been advised by his consulting counsel of the basis for the contemplated action to separate him for personality disorder and its effects; of the rights available to him; and the effect of any action 


taken by him in waiving his rights.  He acknowledged that he was entitled to have his case considered by an administrative separation board and that he was voluntarily waiving consideration of his case by an administrative separation board upon receiving a characterization of service or description of service of no less favorable than honorable and contingent upon the understanding that he 
was not waiving any authorized benefits.  He also acknowledged that he would be ineligible to apply for enlistment in the Unites States Army for a period of
2 years after discharge.

6.  On 13 February 1995, the separation authority approved the request for discharge and directed that the applicant receive an honorable discharge.  On 
9 March 1995, the applicant was discharged accordingly.  He had completed a total of 10 years, 3 months, and 10 days of creditable active military service that was characterized honorable.

7.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-13 provides that a Soldier may be separated for personality disorder, not amounting to disability under Army Regulation 635-40, that interferes with assignment to or performance of duty.  The regulation requires that the condition is a deeply ingrained maladaptive pattern of behavior of long duration that interferes with the Soldier's ability to perform assigned duties.  The regulation also directs that commanders will not take action prescribed in this chapter in lieu of disciplinary action, requires that the diagnosis concludes the disorder is so severe that the Soldier's ability to function in the military environment is significantly impaired, and states that separation for personality disorder is not appropriate when separation is warranted under chapter 4, 5, 7, 9, 10, 11, 13, 14, or 15 of Army Regulation 635-200 or Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).

9.  Army Regulation 635-40 provides that those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) to determine whether they are physically unfit to perform their duties and if found unfit, to determine the percentage of disability to be awarded.  This regulation also provides that only unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.

10.  Title 10, U.S. Code, section 1203, provides for the physical disability separation (discharge) of a member who has less than 20 years service and a disability rated at less than 30 percent.  An award of a VA rating does not 

establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his honorable discharge for personality disorder should be changed to a disability discharge due to PTSD.

2.  The applicant was diagnosed by competent medical authority as having a character and behavior disorder and recommended that the applicant be considered for separation under Army Regulation 635-200, paragraph 5-13, should his pattern of behavior continue.

3.  In order for the applicant to be considered by a Medical Evaluation Board (MEB), he would have to be diagnosed with a medically disqualifying condition.  There is no evidence that the applicant had a medically disqualifying condition.  To the contrary, he was determined to meet medical retention standards. 

4.  Without an MEB, there would be no basis for referring him to a PEB.  Without a PEB, the applicant could not be separated for physical unfitness.

5.  The actions taken by the VA, operating under their own laws and regulations, do not indicate that the actions taken by the Army were in error.

6.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

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)                                         AR20080019066



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ABCMR Record of Proceedings (cont)                                         AR20080019066



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