IN THE CASE OF:	

		BOARD DATE:	  11 May 2010

		DOCKET NUMBER:  AR20090017767 


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, a medical discharge.

2.  The applicant states, in effect, she should have been medically discharged since she is currently rated 70 percent disabled, and she is in the process of being rated 100 percent unemployable.  She also states that she was assaulted in the military by a commanding officer.  As a result of this, she suffered from depression.  She was advised that she should not report the incident and then was harassed for the rest of her deployment in Kosovo.  Eventually, she was discharged and advised that she would not be evaluated by a medical board.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was discharged due to personality disorder and her corresponding paperwork states that it was a disorder that was deeply ingrained.  She tried to get help, but she was denied due to the narrative reason for separation on her DD Form 214.

3.  In support of her application, the applicant provides copies of her DD Form 214, her Department of Veterans Affairs (VA) Rating Decision dated April 2009, and a letter from the VA.

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 records show she enlisted in the Army Delayed Entry Program (DEP) on 16 April 2001.  She was separated from the DEP and enlisted in the Regular Army, on 22 August 2001, for 4 years, in pay grade E-1.  She completed training and was awarded military occupational specialty 92Y, Unit Supply Specialist.  

3.  On 9 June 2003, she was given a temporary physical profile with an expiration date of 9 July 2003 with a PULHES profile of T3 for depression, not otherwise specified; personality disorder, not otherwise specified; and status post overdose of Paxil.  She was given no assignment limitations.

4.  A Report of Mental Status Evaluation, dated 9 June 2003, shows her behavior was calm and appropriate, with no further attempts at suicide since her overdose while deployed in Kosovo.  Her mood or affect was unremarkable; her thinking process was normal; her thought content, at that time she denied thoughts of suicide; and her memory was good.  Her concentration and energy levels were good.  The evaluating physician, a doctor of psychiatry, diagnosed her with a personality disorder and depression, both not otherwise specified.  The evaluating physician proposed follow-up treatment with mental health.  He recommended that as a precaution she be allowed no alcohol, weapons, or munitions.   The evaluating physician found the applicant met the retention standards prescribed in Army Regulation (AR) 40-501 (Standards of Medical Fitness), Chapter 3, and that there was no psychiatric disease/defect that warranted disposition through medical channels; however, the criteria for administrative separation was present.  

5.  The evaluating physician also stated the diagnosis of personality disorder represented a personality disorder within the meaning of ICD-9-CM (International Classification of Diseases, 9th Revision Clinical Modification), AR 40-501, AR 635-200 (Enlisted Separation), and the DSM-IV (Diagnostic and Statistical Manual of Mental Disorders, 4th Edition).  He found that the applicant was mentally responsible, able to distinguish right from wrong and to adhere to the right, and she had the mental capacity to understand and participate in board proceedings.  He opined that her condition was a deeply ingrained, maladaptive pattern of behavior of long duration.  The severity of her condition resulted in significant impairment in the ability of the applicant to function in a military environment.  The evaluating physician further stated the condition and problems presented by the applicant were not in his opinion, amenable to hospitalization, treatment, transfer, disciplinary action, training, or reclassification to another type of duty within the military.  It was unlikely that efforts to rehabilitate or develop the applicant into a satisfactory member of the military would be successful.  The evaluating physician cleared the applicant for any administrative action deemed appropriate by the command and the psychiatric factors indicated that administrative separation under AR 635-200, paragraph 5-13, would be in the best interests of the applicant and the military. 

6.  An Inpatient Psychiatry Discharge Note, dated 9 June 2003, stated her unit was willing to separate her in accordance with her wishes.  

7.  A DA Form 3982, dated 12 June [2003], shows the applicant had an appointment with a psychiatrist at the Wurzburg, Germany Outpatient Clinic on this date.  The applicant's mental status evaluation for this visit is not in the available records.

8.  On 26 June 2003, she received rehabilitative counseling to overcome behavioral deficiencies and she was afforded the opportunity to take advantage of rehabilitation efforts.  It was noted that there was no indication that her condition had changed or improved.  The recommendation was separation under the provisions of AR 635-200.  On 27 June 2003, she acknowledged receipt of counseling.

9.  On 10 July 2003, she received follow-up rehabilitative counseling to overcome behavioral deficiencies.  She was advised that there was no indication she had overcome or improved her condition.  On the same date, she acknowledged receipt of counseling.

10.  On 14 July 2003, her unit commander notified her that he was initiating action to separate her under the provisions of AR 635-200, paragraph 5-13, for a personality disorder with an honorable discharge.  The unit commander stated she had been diagnosed as having a personality disorder and depression and that her condition could potentially interfere with her assignment or performance of duty.

11.  On 11 August 2003, after consulting with counsel, she acknowledged the proposed elimination action to separate her for Personality Disorder under the provisions of AR 635-200, Chapter 5, its effects, and the rights available to her.  She elected not to submit a statement in her own behalf.  

12.  On 19 August 2003, the applicant's battalion and division commanders recommended separation from the Army under the provisions of AR 635-200, Chapter 5-13, prior to the expiration of term of service, with an honorable discharge.

13.  On 19 August 2003, the recommendation for discharge was found to be legally sufficient.

14.  On 19 September 2003, the separation authority approved the recommendation for discharge and directed that the applicant be issued an Honorable Discharge Certificate.

15.  On 19 September 2003, the applicant was honorably discharged, in pay grade E-4, under the provisions of AR 635-200, Chapter 5, paragraph 5-13, for Personality Disorder.  She was credited with 2 years and 28 days of net active service.  

16.  The applicant's VA Rating Decision, dated 13 April 2009, shows she was awarded a 70 percent service-connection for post traumatic stress and a           10 percent service-connection for a shin splint (left side) effective 17 October 2008.  In a letter, dated 17 April 2009, she was advised by the VA of her entitlement and compensation amounts.  

17.  AR 635-200, paragraph 5-13, then in effect, specified that a Soldier could be separated for personality disorders (not amounting to disability) that interfered with assignment or with performance of duty, when so disposed as indicated in the Soldier's ability to perform duty.  The diagnosis of personality disorder must have been established by a psychiatrist or doctoral-level clinical psychologist with necessary and appropriate professional credentials who was privileged to conduct mental health evaluations for the Department of Defense components.  When it had been determined that separation under that paragraph was appropriate, the unit commander would take the actions specified in the notification procedure.  The service of a Soldier separated per this paragraph would be characterized as honorable.

18.  AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), then in effect, established the Army physical disability evaluation system and set forth policies, responsibilities, and procedures that apply in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of her office, grade, rank, or rating.  It provided for medical evaluation boards, which were convened to document a Soldier's medical status and duty limitations 

insofar as duty was affected by the Soldier's status.  A decision was made as to the Soldier's medical qualifications for retention based on the criteria in 
AR 40-501, chapter 3.  

19.  AR 40-501, chapter 3, provides that, for the separation of an individual found to be unfit by reason of physical disability, the individual must be unable to perform the duties of his office, grade, rank or rating.  Members with conditions, as listed in this chapter, are considered medically unfit for retention on active duty and are referred for disability processing.  Personality disorder is listed as a condition that warrants administrative separation, not medical separation.

20.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  The VA has neither the authority nor the responsibility for determining physical fitness for the military service.  It awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  

21.  Title 38, U.S. Code, section 5304 states that, except to the extent that retirement pay is waived under other provisions of law, not more than one award of pension, compensation, or reserve retirement pay shall be made concurrently to any person based on such person’s own service.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to a medical discharge.  She has not shown error, injustice, or inequity for the relief she now requests.  

2.  The applicant contends her discharge is incorrect.  The evidence shows she was admitted to the hospital after an apparent suicide attempt, she was diagnosed with a personality disorder and depression, and received treatment at a medical facility.  She underwent a mental status evaluation, in which a military psychiatrist diagnosed her with a personality disorder and depression.  She was found to have met the retention standards prescribed in AR 40-501, and there was no psychiatric disease/defect that warranted disposition through medical channels.  She was also found to be mentally responsible and considered to have the mental capacity to understand and participate in separation proceedings.  There is no evidence she was referred to a medical evaluation or a 

physical evaluation board for consideration of her condition or that she was diagnosed with a condition that required her to be referred.

3.  The applicant's separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized her rights.  The type of discharge directed and the reasons for the discharge were appropriate considering all of the facts of the case.

4.  The applicant contends that she was assaulted in the military by a commanding officer and advised not to report the assault.  Unfortunately, there is no evidence or record and she provided none to support her contention.  

5.  A DA Form 3982, dated 12 June [2003], shows the applicant had an appointment with a psychiatrist at the Wurzburg, Germany Outpatient Clinic on this date.  The results of this visit are not in the available record.  The ABCMR begins its consideration of each case with the presumption of administrative regularity, that is what the Army did was correct.  It is presumed that the applicant was evaluated by a psychiatrist during this visit and the findings were consistent with the initial evaluation.

6.  There is no evidence she had an illness that required separation processing through medical channels.

7.  The VA documentation provided by the applicant, effective 5 years after her separation, was also carefully considered.  However, the award of a VA rating and compensation does not establish entitlement to a referral to a medical board or disability processing.  Operating under its own policies and regulations the VA awards ratings because a medical condition is related to service, i.e., service-connected.  In this case, the applicant was properly evaluated and is being compensated for her service-connected medical conditions by the VA.  

8.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090017767



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ABCMR Record of Proceedings (cont)                                         AR20090017767



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