IN THE CASE OF:	  

		BOARD DATE:	       12 February 2009

		DOCKET NUMBER:  AR20090000742 


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 correction of his records to show he was medically discharged instead of honorably discharged for personality disorder. 

2.  The applicant states, in effect, that he should have been medically discharged.

3.  The applicant provides the following additional documentary evidence in support of his request:

	a.  A statement, dated 9 April 2008, from his father, a Regular Army command sergeant major (CSM). 

	b.  A copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 10 September 2005.

	c.  DD Form 4 (Enlistment/Reenlistment Document), dated 18 September 2002.

	d.  DA Form 2808 (Report of Medical Examination), dated 6 June 2002.

	e.  Standard Form (SF) 86 (Security Clearance Application), dated 5 September 2002.

	f.  Various medical reports, consults, and records, dated on miscellaneous dates throughout his military service. 
	g.  Separation Orders 224-01 issued by Headquarters, U.S. Army Japan, on 12 August 2005.

	h.  DA Form 2697 (Report of Medical Assessment), dated 25 August 2005.

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 initially enlisted in the U.S. Army Reserve (USAR) under the delayed entry program (DEP) at the San Antonio, Texas Military Entrance Processing Station (MEPS), on an unknown date; however, he tested positive for marijuana on 12 June 2002, and was separated from the DEP on 13 June 2002.  Accordingly and prior to the applicant's second attempt for enlistment at the Richmond, VA, MEPS, his recruiter requested and received a waiver on 17 September 2002 of pre-accession drug and alcohol disqualification for RA enlistment.  

3.  The applicant’s records also show he enlisted in the USAR under the DEP on 18 September 2002 for a period of 8 years.  Item 26 (Drug Use and Abuse) of the applicant’s DD Form 1966/2 (Record of Military Processing) shows the applicant indicated he had previously tried, used, sold, supplied, or possessed narcotics to include heroin, cocaine, depressants, stimulants, mind-altering substances, or anabolic steroids, and he also indicated in Section VI (Remarks) of this form that he experimented with and/or used marijuana on two occasions in June 2002.

4.  The applicant’s records further show he enlisted in the RA for a period of 6 years on 17 January 2003.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 25B (Information Systems Operator/Analyst).  The highest rank/grade he attained during his military service was specialist/E-4.  He was assigned to the 287th Signal Company, 78th Signal Battalion, Camp Zama, Japan.  
5.  On 12 March 2005, the applicant was hospitalized at a local Japanese hospital for a possible suicide attempt involving an overdose of over-the-counter pain medication (acetaminophen).  After the investigation, doctors and military police determined that the incident was an attempted suicide.

6.  On 21 March 2005, the applicant was referred by his commander to the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) (now known as the Army Substance Abuse Program (ASAP)) for improper use of drugs.  The immediate commander indicated the applicant was undergoing financial, marriage/family, and other problems at the time and recommended that he be treated for attempted suicide.

7.  On 30 March 2005, the applicant underwent a command-directed psychiatric evaluation due to behavioral concerns and was diagnosed as having a "PD (personality disorder) – NOS (Not otherwise specified):  Condition was that of a deeply ingrained maladaptive pattern of behavior of long duration that interfered with his ability to perform his duty."  The evaluation process included a personal interview with a clinical psychologist, a mental status examination, psychological testing, and personality assessment.  The results of the interview and assessment tools suggested that the applicant was not fit for duty.

8.  On 29 April 2005, the applicant underwent professional growth counseling by his immediate commander regarding his medical care, career goals, and future plans for his personal life.  The immediate commander recommended he continue to see his medical provider.  

9.  On 25 June 2005, the applicant underwent a follow-up mental status evaluation.  The clinical psychologist indicated that while the applicant was at home on leave from 23 May to 16 June 2005 he experienced another depressive episode which required additional assessment and medication near his home of record.  He added that since his initial visit following his most recent suicide attempt, the applicant exhibited limited to no sustained improvement with medication and psychotherapy.  He further added that it appeared that prolonged exposure to a military environment might not be conducive to his wellbeing.  Consequently, for the safety of the applicant, the chain of command was encouraged to expedite separation proceedings.  Again, the applicant was diagnosed with "PD NOS:  Condition was that of a deeply ingrained maladaptive pattern of behavior of long duration that interfered with his ability to perform his duty."



10.  On 1 July 2005, the applicant’s immediate commander conducted a separation counseling session with the applicant.  The immediate commander indicated that his potential for becoming a fully mission capable Soldier was questionable because his behavior pattern with his disorder was unpredictable.  He was also notified that his security clearance had been suspended and that he was not permitted to handle ammunition or weapon systems for his and the safety of other Soldiers.   

11.  On 21 July 2005, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him under the provision of chapter 5-13 of Army Regulation (AR) 635-200 (Personnel Separations) by reason of personality disorder.  

12.  On 21 July 2005, the applicant acknowledged receipt of the notification of separation memorandum and was advised of his right to consult with counsel prior to making any elections of rights.  He subsequently consulted with counsel and was advised of the basis of his contemplated separation because of personality disorder under chapter 5-13 of AR 635-200, and its effects; of the rights available to him, and the effects of any action taken by him in waiving his rights.  He further understood that he could encounter substantial prejudice in civilian life if a general discharge was issued to him, and elected not to submit a statement on his own behalf.

13.  On 5 August 2005, the applicant’s immediate commander initiated separation action against the applicant in accordance with chapter 5-13 of AR 635-200 by reason of personality disorder.  The immediate commander remarked that the applicant was command referred to behavioral health because of improper use of over the counter medications and was subsequently diagnosed with a personality disorder.  The clinical psychologist determined that his condition was a deeply ingrained maladaptive pattern of behavior of long duration that interfered with his ability to perform duty.  He further recommended an honorable discharge.

14.  On 8 August 2005, the applicant’s intermediate commander recommended approval of the applicant’s separation by reason of personality disorder with an honorable discharge.

15.  On 10 August 2005, the separation authority approved a waiver of the rehabilitative transfer and approved the applicant’s discharge under the provisions of chapter 5-13 of AR 635-200 with an honorable discharge.  Accordingly, the applicant was discharged on 10 September 2005.  The DD Form 214 he was issued shows he was honorably discharged in accordance with chapter 5-13 of AR 635-200 by reason of personality disorder.  This form further shows he completed 2 years, 7 months, and 24 days of creditable military service.

16.  A statement, dated 9 April 2008, written by the applicant’s father, a CSM, indicates that when his son entered the Army, he underwent a thorough physical and mental evaluation as well as a police records check and he was granted a secret security clearance.  The applicant’s father states that his son was discharged without understanding what was happening to him and he was not provided the proper guidance regarding a medical evaluation board (MEB) and subsequent physical evaluation board (PEB).  At the time of his discharge, he was assigned a permanent physical profile with a “3” in the psychiatric portion of his PULHES which is supported by the medical evidence.  By law and regulation, he should have been evaluated by an MEB and because he carried a current diagnosis of major depressive disorder he should have been retired at the rate of not less than 50 percent. 

17.  AR 635-200 provides for separation of enlisted personnel.  Paragraph 5-13 provides the criteria for discharge because of a personality disorder.  It states, in pertinent that a Soldier may be separated for personality disorders that interfere with assignment to or performance of duty.  The diagnosis of personality disorder must have been established by a physician trained in Psychiatry and psychiatric diagnosis.  Separation because of personality disorder is authorized only if the diagnosis concludes that the disorder is so severe that the Soldier’s ability to function effectively in the military environment is significantly impaired.

18.  AR 40-501 (Standards of Medical Fitness), which outlines medical conditions which may render and individual unfit, or which may preclude enlistment, note that both personality and adjustment disorders will be dealt with through administrative and not medical channels.  Paragraph 3-35 of this regulation states that a history of, or current manifestations of, personality disorders, disorders of impulse control not elsewhere classified, transvestism, voyeurism, and other paraphilias, or factitious disorders, psychosexual conditions, render an individual administratively unfit.  These conditions render an individual administratively unfit rather than unfit because of physical illness or medical disability.  These conditions will be dealt with through administrative channels, including AR 635–200.

19.  AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  It provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In pertinent part, it states that although the ability of a Soldier to reasonably perform his or her duties in all geographic locations under all conceivable circumstances is a key to maintaining an effective and fit force, this criterion will not serve as the sole basis for a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member may reasonably be expected to perform because of his or her office, rank, grade or rating.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge for personality disorder should be changed to a medical retirement.

2.  The statement submitted by the applicant’s father, a CSM, as well as the argument that he presented were considered.  However, they are not sufficiently mitigating to change the applicant’s discharge to a medical retirement.  The preponderance of evidence indicates the applicant was diagnosed as having a personality disorder by competent military medical authorities, as shown by his counseling statements, the information provided by his commanding officer, and the mental evaluations in March and June 2005.  

3.  Contrary to the CSM’s contentions that his son was not aware of what was happening to him, the evidence of record shows he was evaluated by competent military medical authority and found to have a personality disorder.  However, the applicant’s commander told him what the psychiatric evaluation indicated and both his commander and legal counsel informed him of the separation action.  He had the opportunity to express his disagreement at the time by submitting a statement; however, he elected not to do so.

4.  The applicant’s administrative discharge under the provisions of paragraph   5-13 of AR 635-200, for a personality disorder was proper and in conformance with applicable regulations with no indication of any violations of the applicant’s rights.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.  Therefore, there is no reason to correct the applicant’s DD Form 214 as he has requested.  

5.  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 did not 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.



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      _______ _   _______   ___
               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)                                         AR20090000742



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ABCMR Record of Proceedings (cont)                                         AR20090000742



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