IN THE CASE OF:	

		BOARD DATE:	1 September 2009  

		DOCKET NUMBER:  AR20090005412 


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 narrative reason for discharge be changed from personality disorder to a medical discharge with entitlement to benefits  

2.  The applicant states he was chaptered out under paragraph 5-13 for a personality disorder while he was suffering from Post Traumatic Stress Disorder (PTSD) from service in Iraq.  Although he was rated 80 percent disabled from the Veterans Affairs (VA), 70 percent of that rating was for PTSD.  The applicant alleges that there is absolutely no history of any personality disorder.  He was a second term noncommissioned officer (NCO) with no negative actions against him, and he received numerous awards for service, including one for valor, a Purple Heart, two Good Conduct Medals, and several other awards.  

3.  The applicant provides the following documents in support of his application: a personal statement; a letter from Department of Veteran Affairs (DVA), a DA Form 4187 (Personnel Action), dated 6 May 2004; his promotion order to the rank of sergeant, dated 3 June 2002; his Good Conduct Medal (First Award) orders, dated 6 February 2003; his DA Form 1059 (Service School Academic Evaluation), dated 8 March 2002; his DA Form 638 (Recommendation for Award),dated 2004; and his DD Form 214 (Certificate of Release or Discharge from Active Duty).  

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 enlisted in the Regular Army on 29 September 1999.  He completed infantry training and was awarded military occupational specialty 11B (infantryman).  His highest grade attained was sergeant, E-5.  

3.  He served in Iraq from 30 March 2004 to 29 March 2005.  

4.  On 23 May 2005, the applicant underwent a mental status evaluation and was diagnosed on Axis I with an adjustment disorder with mixed mood and on Axis II with a personality disorder.  

5.  On 16 August 2005, the unit commander notified the applicant of pending separation action under the provisions of chapter 5, paragraph 5-13, Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations) by reason of a personality disorder.  The applicant was advised of his rights.  The unit commander’s reason for his proposed separation action was based on the applicant’s diagnosis with adjustment disorder and personality disorder with occupational problems.  The unit commander stated the applicant represented a command liability and impaired the overall readiness of the unit.  

6.  On 16 August 2005, the applicant acknowledged notification of the proposed separation action.  He consulted with legal counsel, waived consideration of his case by an administrative separation board, and did not submit statements in his own behalf.  

7.  On an unknown date, the separation authority approved the separation action with issuance of an honorable discharge.

8.  The applicant was discharged on 30 September 2005 under the provisions of Army Regulation 635-200, paragraph 5-13, for personality disorder with an honorable discharge.  He completed a total of 6 years and 2 days of active military service with no days of lost time.  

9.  His DD Form 214 shows he was awarded the Purple Heart, the Army Commendation Medal with "V" Device, the Army Commendation Medal (Second Award), the Army Achievement Medal (Second Award), the Army Good Conduct Medal, the Noncommissioned Officer Professional Development Ribbon, the Combat Infantryman Badge, the Global War on Terrorism Expeditionary Medal, and the Global War on Terrorism Service Medal.  

10.  Item 26 on his DD Form 214 shows his separation program designator (SPD) code as “JFX.”

11.  Item 28 (Narrative Reason for Separation) on his DD Form 214 shows the narrative reason as “PERSONALITY DISORDER.”

12.  The applicant provided a personal statement in support of his claim.  He stated he was an infantry team leader/humvee commander in the rank of sergeant when his unit deployed to Iraq.  While in Iraq, he studied for the promotion board and had won the noncommissioned officer (NCO) of the Month Board for his battalion.  He alleged he had a spotless record, was on a fast track with promotion, was a second term Soldier, loved his job, and wanted to do nothing else with his life.  The applicant described the incidents regarding the ambush on his unit in Iraq.  Two bullets wounded his left shoulder and arm and he continued to fight as long as he could.  He worked hard to get healed and to get integrated back into his unit.  He described the incidents regarding his panic attacks.  After his breakdown, he was sent to the combat stress team where he was supposed to have been evaluated for PTSD, but he was never evaluated.  His company commander sent him to be mentally evaluated and he was told he was suffering from PTSD.  At that time, he was given the option of getting out of the Army or accepting a job based on the needs of the Army.  He did not want to leave the Infantry, so he was put out of the Army.  The applicant alleged his family has suffered greatly trying to make ends meet while waiting on the VA.  

13.  In an undated letter from the DVA, the applicant was informed that he was granted service connection for tinnitus (10 percent) and left ear injury due to shrapnel (0 percent).  In addition, his service connection for PTSD was increased from 50 percent to 70 percent and cervical strain from 0 percent to 10 percent.  

14.  Army Regulation 635-200 (Personnel Separations) 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 Soldiers ability to perform duty.  

15.  Army Regulation 635-5-1 (SPD Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons.  The regulation shows that the SPD code “JFX” as shown on the applicant’s DD Form 214 specified the narrative reason for separation as involuntary release or transfer for “Personality Disorder” and that the authority for separation under this separation program designator was “Chapter 5-13, 
AR 635-200."

16.  Title 38, U. S. Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was chaptered out under paragraph 5-13 for a personality disorder while he was suffering from PTSD from his service in Iraq.  However, there is no evidence which substantiates that he suffered from PTSD prior to his separation.  

2.  The applicant contends that he has no history of any personality disorder.    However, in the absence of evidence to the contrary, it is presumed the applicant was examined by competent military medical personnel who made a valid determination that he had a personality disorder at the time of his separation.

3.  The applicant’s contention that the DVA granted him service connection for PTSD with a 70 percent disability rating is acknowledged.  However, the rating action by the VA does not necessarily demonstrate an error or injustice on the part of the Army.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  

4.  The applicant's administrative discharge proceedings under the provisions of Army Regulation 635-200, paragraph 5-13 were conducted in accordance with law and regulations applicable at that time.

5.  The applicant's DD Form 214 properly reflects he was separated with a separation code of "JFX" for personality disorder in accordance with the governing regulation.

6.  The applicant has failed to show through the evidence submitted or the evidence of record that the narrative reason given to him was in error or unjust.

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)                                         AR20090005412





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090005412



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1