BOARD DATE:	  19 November 2009

		DOCKET NUMBER:  AR20090010309 


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, disability retirement in lieu of discharge by reason of a personality disorder.

2.  The applicant states that his 2001 discharge should be changed to show that he was separated for medical reasons.  He states that he believes he was misdiagnosed when he was evaluated in 2001 because in 2007 he was diagnosed with schizoaffective disorder.

3.  The applicant provides an undated statement from his clinical psychologist and a certified listing of his prescribed medication as of 9 June 2009.

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.  Evidence of record shows the applicant enlisted in the Regular Army (RA) on 5 October 2000.  He completed training in military occupational specialty (MOS) 68F (aircraft electrician).  In April 2001, he was advanced to the rank/grade of private (PV2)/E-2.

3.  A counseling statement contained in the applicant’s file notes that on 21 and 22 August 2001 he spoke with members of his chain of command.  He initially indicated that he wanted either a compassionate reassignment or hardship discharge and he talked about family problems and the depression associated with loneliness.  He subsequently indicated that he just wanted to get out of the Army and requested information about changing to the Army National Guard.  The applicant was asked if he wanted to see a chaplain and he responded that he thought he had talked enough to chaplains.

4.  On 5 October 2001 the applicant was advanced to the rank/grade of private first class (PFC)/E-3.

5.  According to a DA Form 3822-R (Report of Mental Status Evaluation), contained in the applicant’s file, he was evaluated and treated by the Inpatient Psychiatry Service at the 121st General Hospital in Korea on 11 and 16 October 2001.  On 16 October 2001, the Chief, Inpatient Psychiatry Service concluded the applicant was suffering from major depressive disorder, mild without psychotic features; and a personality disorder not otherwise specified, with cluster C traits predominant.  The evaluating psychiatrist recommended the applicant be discharged under the provision Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 5-13 (separation because of personality disorder) or 5-17 (other designated physical or mental conditions).

6.  On 14 November 2001, the applicant’s immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of paragraph 5-13 of Army Regulation 635-200 by reason of personality disorder with a recommended honorable characterization of service.

7.  On 14 November 2001, the applicant acknowledged receipt of the notification of separation memorandum, he consulted with counsel, and he waived his attending rights.

8.  The appropriate separation authority approved the applicant’s discharge under the provisions of paragraph 5-13 of Army Regulation 635-200 with an honorable discharge.  Accordingly, the applicant was discharged on 7 December 2001.  The DD Form 214 he was issued shows he was honorably discharged in accordance with paragraph 5-13 of Army Regulation 635-200 by reason of personality disorder.  This form further shows he completed 1 year, 2 months, and 3 days of creditable military service.

9.  According to medical documents that the applicant provided in support of his appeal to the Army Discharge Review Board in 2008, he was being treated at the Serenity Behavioral Health Systems in Augusta, GA commencing in October 2006.  He was initially diagnosed with major recurrent depression with suicidal features and personality disorder, NOS [not otherwise specified].  It was not until June 2007 that he was diagnosed with schizoaffective disorder as well as alcohol abuse.

10.  The statement submitted by the applicant from his attending psychologist is undated.  However, the statement notes that the author of the statement had been treating the applicant since 23 May 2008 in Puerto Rico.  The psychologist noted the applicant’s disorder can be traced first to emotional trauma in basic training, where he was frequently harassed by drill sergeants because of his difficulties understanding English.  He continued to have problems during his advanced individual training and he asked for counseling.  This stress was further enhanced by the prolonged stay in a foreign base near hostile country as evidenced by counseling and medical records between 21 August 2001 and
16 October 2001.  The statement went on to note that it is very common to initially diagnose schizoaffective disorder as major depression.

11.  Army Regulation 635-200 provides for the separation of enlisted personnel.  Paragraph 5-13 provides the criteria for discharge because of a personality disorder.  It states, in pertinent part, 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.

12.  Army Regulation 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.  The regulation defines “physically unfit” as unfitness due to physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purpose of his employment on active duty. 


13.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for enlistment, retention and separation.  Paragraph 3-35 states that a personality disorder may render an individual administratively unfit rather than unfit because of physical disability.  Interference with performance of effective duty in association with these conditions will be dealt with through appropriate administrative channels. 

DISCUSSION AND CONCLUSIONS:

1.  The available evidence indicates the applicant was diagnosed in 2001 by the Chief, Inpatient Psychiatry Service with a personality disorder which warranted an administrative separation.  The fact the applicant was subsequently diagnosed with schizoaffective disorder nearly 6 years later is not evidence that his 2001 diagnosis was incorrect.  The applicant’s initial treatment records from the Serenity Behavioral Health Systems in Georgia support this conclusion in view of the fact that he was seen by that institution for several months prior to finally being diagnosed with schizoaffective disorder.  At no time in any of those evaluations was it determined that his original diagnosis was incorrect.

2.  There is no evidence, and the applicant has not provided any, which shows that his administrative discharge from the Army was incorrect or that disability retirement or separation would have been more appropriate.

3.  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 the aforementioned requirement.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20090010309



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ABCMR Record of Proceedings (cont)                                         AR20090010309



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