IN THE CASE OF:	  

		BOARD DATE:	       23 JUNE 2009

		DOCKET NUMBER:  AR20090003097 


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 that his honorable discharge by reason of personality disorder be changed to a medical discharge.

2.  The applicant states that while he was in the Army he was diagnosed with a personality disorder and should have received a medical discharge.  He states he still has the same medical problems he had in the Army.

3.  The applicant provides, in support of his application, copies of his 
DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 28 January 1991 and a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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 personnel records show he enlisted in the Regular Army (RA) on 31 October 1989 for a period of 4 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 13B (Cannon Crewmember).

3.  The applicant's service medical records and mental evaluation was not available for review.

4.  On 2 January 1991, the applicant's commander notified him that he was initiating action to discharge him under the provisions of paragraph 5-13 (Separation because of personality disorder) of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) based on the applicant's diagnosis of a personality disorder by the Division psychiatrist.  The commander further notified the applicant that he was recommending his period of service be characterized as honorable.

5.  The commander advised the applicant of his right to submit statements in his own behalf, to be represented by counsel, to waive any of these rights, to obtain copies of documents that will be sent to the separation authority supporting the proposed separation, and to withdraw any waiver of rights at any time prior to the date the discharge authority directs or approves his discharge.  The commander also advised the applicant he may waive any or all of these rights in writing and that failure to respond to within 7 days will constitute a waiver of his rights.

6.  On 2 January 1991, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action to discharge him under the provisions of paragraph 5-13 of Army Regulation
635-200 for a personality disorder.  The applicant stated that he was not submitting statements in his own behalf.  He acknowledged that he would be ineligible to apply for enlistment in the Army for 2 years after discharge.

7.  On 2 January 1991, the applicant's commander recommended him for discharge due to a personality disorder and that his service be characterized as honorable.  The commander stated he was initiating the action due to the applicant having been diagnosed with a personality disorder which interfered with his ability to perform his duty.  The commander stated the applicant has a disorder which is so severe that his ability to function effectively in the military environment was significantly impaired.

8.  On 18 January 1991, the appropriate authority approved the recommendation for discharge due to personality disorder and directed the applicant's service be characterized as honorable.
9.  On 28 January 1991, the applicant was honorably discharged under the provisions of paragraph 5-13 of Army Regulation 635-200 by reason of personality disorder.  He had completed 1 year, 2 months, and 28 days active service.

10.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board (MEB).  Those members who do not meet medical retention standards based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness) will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.

11.  Army Regulation 40-501 (Standards of Medical Fitness) provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures.  Paragraph 3-35 (Personality, sexual and gender identity, or factitious disorders; disorders of impulse control not elsewhere classified; substance-related disorders) provides that these conditions may render an individual administratively unfit rather that unfit because of physical disability.  Interference with performance of effective duty in association with these conditions will be dealt with through administrative channels.

12.  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 duty.  The regulation also directs that commanders will not take action prescribed in this chapter in lieu of disciplinary action and requires that the diagnosis conclude the disorder is so severe that the Soldier’s ability to function in the military environment is significantly impaired.

DISCUSSION AND CONCLUSIONS:

1.  Army Regulation 40-501 specifically states that individuals who are diagnosed with a personality disorder that interferes with the performance of effective duty in association with this condition will be processed through administrative channels.

2.  The provisions of Army Regulation 635-200 provides the administrative channel through which those individuals who are diagnosed with a personality disorder are discharged from the Army.

3.  There is no evidence of record and the applicant has not submitted any evidence that he had a medical condition which would have warranted him being considered by an MEB.  Without an MEB, there would have been no basis for referring him to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge or retired for physical unfitness.

4.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

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 failed to submit evidence that would satisfy that 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.



      ___________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)                                         AR20090003097



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ABCMR Record of Proceedings (cont)                                         AR20090003097



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