IN THE CASE OF:	  

		BOARD DATE:	  16 March 2010

		DOCKET NUMBER:  AR20090014599 


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 item 25 (separation authority), item 26 (separation code), item 27 (reenlistment (RE) code) and item 28 (narrative reason for separation) on his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed.

2.  The applicant states, in effect, that item 28 of his DD Form 214 indicates he had a personality disorder at the time of discharge; however, a doctor advised him that such a diagnosis does not exist at this time.  Therefore, his discharge should be changed.  

3.  The applicant provides a copy of DD Form 214, a detailed self-authored statement, and an intake evaluation report dated 2 September 2008 in support of his application.  

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 record includes a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) which shows that item 27 was changed to show an RE code of RE 3 and RE 3C.  A copy of this DD Form 215 will be provided to him.

3.  The applicant enlisted in the Regular Army (RA) on 29 December 1986.  

4.  On 18 December 1987, the applicant underwent a psychiatric evaluation at the Fort Sill Community Mental Health Services clinic.  He was diagnosed in accordance with the Diagnostic and Statistical Manual of Mental Disorders III (DSM III).  He was diagnosed with Axis II: Schizotypal Personality Disorder, moderate to severe.  His behavior was not to the extreme to warrant immediate administrative discharge and he desired to remain in the service.  The mental evaluation stated that if the applicant's behavior continued he should be recommended for chapter action.  He was scheduled for follow up appointments in order to aid his desire to remain in the service.  

5.  On 11 January 1998, the applicant underwent a second psychiatric evaluation at the Fort Sill Community Mental Health Services clinic.  He was further diagnosed in accordance with DSM III with an Axis II:  Mixed Personality Disorder with Schizotypal, antisocial, and passive-aggressive features – severe.  The examining psychiatrist stated that this condition represented a deeply ingrained pattern of behavior that was so severe that it would interfere significantly with his ability to function effectively in the military environment.  This condition was unlikely to respond to psychiatric intervention or punitive measures.  The applicant appeared to be involved in a possible illegal mail order scheme and his poor judgment may endanger the being of other Soldiers.    He was cleared for discharge in accordance with Army Regulation 600-200, chapter 5-13, and psychiatrically cleared for this and any other administrative action deemed appropriate by the command. 

6.  On 8 January 1988, the unit's commander recommended that the applicant be discharged for unsuitability under the provisions of Army Regulation 635-200.  The commander’s recommendation was based on the applicant’s personality disorder.  

7.  On 28 January 1988, the unit commander notified the applicant of the pending separation action under the provisions of chapter 5-13, Army Regulation 635-200 by reason of a personality disorder.  
8.  On the same date the applicant acknowledged receipt of the commander’s recommendation and proposed action to separate him under the provisions of Army Regulation 635-200.  The applicant waived consideration of his case by a board of officers and elected not to provide a statement in his own behalf.  

9.  On 19 February 1988, the appropriate authority approved the recommendation to administratively separate the applicant and directed that he receive an honorable discharge under the provisions of chapter 5-13, Army Regulation 635-200.  On 26 February 1988, the applicant was issued an honorable discharge.  The DD Form 214 he was issued at the time confirms he completed a total of 1 year, 1 month, and 28 days of creditable active service, and shows in item 25 Army Regulation 635-200, chapter 5-13; Item 26 "JFX"; Item 27 RE 4; and Item 28 Personality Disorder.

10. The applicant submitted an Intake Evaluation Report dated 3 April 2009 from the Professional Corporation of Psychiatry which shows that he was reevaluated due to his military diagnosis of Axis II pathology.  The intake form states, in effect, that the applicant is unhappy with 1988 diagnosis of passive-aggressive personality disorder.  There were no medical records available for review, just the applicant's presentation and based on this evaluation, no Axis I diagnosis was found.  It was concluded that historically the applicant was diagnosed with having a passive-aggressive personality disorder but according to the current 
DSM-IV-TR, currently in effect, no such diagnosis exists at the present time.

11.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribed 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 in effect at the time showed the SPD code of “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 “Army Regulation 635-200, paragraph 5-13."

12.  By regulation, RE codes of RE 3 and RE 3C are the proper codes assigned to members who were separated under the provisions of Army Regulation 635-200, by reason of a personality disorder with an SPD code of JFX.  The applicant's codes are still valid.

13.  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 when the disorder interferes with assignment 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.  

14.  Army Regulation 635-5 (Separation Documents) establishes the policies and procedures for completion and distribution of the DD Form 214.  In pertinent part, it states that item 28 will list the narrative reason for separation based on regulatory or other authority and can be checked against the cross-reference table in Army Regulation 635-5-1.

15.  The DSM-III, in effect at the time, sets the diagnostic criteria, description, and other information to guide the classification of mental disorders and states, in pertinent part that Axis II is used for reporting personality disorders and mental retardation.  Passive-aggressive (negativistic) personality disorder is a personality disorder wherein a person tends to display a pattern of negative attitudes and passive resistance in interpersonal or occupation situations.  It was listed as an Axis II personality disorder in the DSM-III but was moved in the DSM-IV to Appendix B (Criteria Sets and Axes Provided for Further Study).  

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant was diagnosed in accordance with the DSM-III with an Axis II personality disorder.  Although he contends a doctor told him his diagnosis did not exist and therefore, he believes it should be removed from his records, the DSM-IV shows that passive-aggressive personality disorders were moved to the appendix of the DSM-IV because they required further study, not because they did not exist.  Therefore, in the absence of compelling evidence to the contrary, there is a reluctance to change what is presumed to be a valid medical diagnosis made by competent military medical authorities.  

2.  The applicant has failed to show through the evidence submitted or the evidence of record that the separation authority, the separation code, RE codes and the narrative reason assigned to him were 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)                                         AR20090002364



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ABCMR Record of Proceedings (cont)                                         AR20090014599



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