IN THE CASE OF:	  

		BOARD DATE:	       14 JULY 2009

		DOCKET NUMBER:  AR20090004672 


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 blocks 26 (Separation Code) and 28 (Narrative Reason for Separation) on her DD Form 214 (Release or Discharge Certificate from Active Duty) be changed to show she was separated for a service connected disability.

2.  The applicant states the separation program designator (SPD) does not make it clear that her separation was not due to her actions but a service connected disability.  This has resulted in a financial hardship because the Army has demanded repayment of a bonus she was given.  Her attempts to rectify this error has resulted in her getting the run-a-round where and how to appeal.

3.  The applicant provides two copies of her DD Form 214, several letters related to her attempts to change the record, three Department of Veterans Affairs (VA) disability decisional documents, a statement from her VA attending physician, a 1995 Report of Medical History, and a 1995 Report of Medical Examination.

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 service medical and dental records are believed to be on permanent loan to the VA and are not available for review.  

3.  The applicant's integrated Personnel Electronic Records Management System (iPERMS) file is incomplete.  The available records do not include any information or documents related to the applicant's separation or the reasons leading to that separation.  It does not even include a copy of her DD Form 214.

4.  The available records show the applicant enlisted in the Regular Army on 19 March 1996 and reenlisted on 5 May 1999.

5.  On 10 March 2000 she was honorably discharged with 3 years, 11 months, and 22 days of creditable service.  The DD Form 214 shows she was discharged under the provisions of Army Regulation 635-200, paragraph 5-13 with the narrative reason for separation for personality disorder and an SPD of JFX.  

6.  On 28 December 2000, the VA afforded the applicant a 50 percent disability rating for bipolar disorder with borderline personality disorder.

7.  A 3 December 2008 letter from the applicant's attending physician states that the applicant is currently diagnosed as suffering from bipolar disorder with severe depression.  She is currently suffering from severe neurovegetative symptoms of fatigue, poor concentration, low motivation, and disrupted sleep.  Her condition is chronic and it is unlikely that she will improve.  He states she received the diagnoses of bipolar disorder and borderline personality disorder while on active duty and had at least one military hospitalization for suicidal ideations.  

8.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-13 establishes policy and prescribes procedures for separating members for personality disorder (not amounting to a disability under Army Regulation 635-40), a deeply-ingrained maladaptive pattern of behavior which interferes with the individual's ability to perform.  Prior counseling with a view to correcting deficiencies is mandatory.  A diagnosis by a psychiatrist is required.  Separation under this paragraph may not be used in lieu of disciplinary action solely to spare a Soldier who has committed serious acts of misconduct.  An honorable discharge is issued unless an entry-level separation is required.  

9.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory or other directives), reasons for separating Soldiers from active duty, and the SPD codes to be entered on DD Form 214.  It indicates that a separation under the provisions of Army Regulation 635-200, paragraph 5-13 for a personality disorder mandates an SPD of JFX.

10.  Title 38, U. S. Code, sections 310 and 331, permits the VA to award compensation for any physical, medical, or mental condition which it determines was incurred in or aggravated by active military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a physical or mental condition exists and that said condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, an individual's physical, medical, or mental condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

11.  Army Regulation 40-501 (Standards of Medical Fitness) provides medical fitness standards for retention and separation, including retirement.  Chapter 3 provides the various medical conditions and physical defects that render individuals unfit for further service.  Personality disorders may render individuals administratively unfit rather than unfit due to physical disability.  Interference with effective performance of duty in association with these conditions is to be dealt with through appropriate administrative channels.

12.  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.  In pertinent part, it states 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.  The ABCMR will decide cases based on the evidence of record.  It is not an investigative body.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states the SPD does not make it clear that her separation was not due to her actions but a service-connected disability.  

2.  While both the Army and the VA use the VA Schedule for Rating Disabilities (VASRD), not all of the general policy provisions set forth in the VASRD apply to the Army.  The Army considers a personality disorder to render an individual administratively unfit rather than unfit due to physical disability.  The VA, however, may rate any physical, medical, or mental condition which it determines was incurred in or aggravated by active military service, thus compensating for loss of civilian employment.  Therefore, it is not unexpected that these two different systems would produce different evaluations.  

3.  The award of a VA compensation rating does not mandate change of, nor demonstrate an inequity in a military evaluation.  The VA, operating under its own policies and regulations, may make a determination that a medical condition warrants compensation.  

4.  With the absence of evidence in the available military medical and personnel records, it is impossible to determine if the applicant was properly separated or not.  Therefore, the presumption of administrative regularity must be applied and the applicant's request must be denied. 

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 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.



      _______ _   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)                                         AR20090004672





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ABCMR Record of Proceedings (cont)                                         AR20090004672



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