IN THE CASE OF:	  

		BOARD DATE:	    11 May 2010

		DOCKET NUMBER:  AR20090019360 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 27 July 2007, as follows:

	a.  item 25 (Separation Authority) from "Army Regulation 635-200 (Personnel Separations), paragraph 5-13," to the appropriate paragraph in Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation);

	b.  item 26 (Separation Code) from "JFX" to the appropriate medical code; and

	c.  item 28 (Narrative Reason for Separation) from "personality disorder" to medical disability for post-traumatic stress disorder (PTSD).

2.  The applicant states that he was diagnosed with PTSD before and after his discharge and he is currently being treated by the Department of Veterans Affairs (DVA) for PTSD which arose during and as a result of his service.

3.  The applicant provides additional documentary evidence through counsel.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests correction of the applicant's records to show he was medically discharged by reason of medical disability caused by his PTSD and that his disability be rated at 30 percent which would, in effect, allow for medical retirement.
2.  Counsel states the applicant was diagnosed with PTSD on numerous occasions before and after his discharge.  The DVA awarded him a service-connected disability rating for this condition on 28 July 2007, the day after his discharge from the Army.  Counsel then chronicles the applicant's military service and medical history and makes the following argument:

	a.  The applicant was diagnosed with PTSD while on active duty, but he was separated in accordance with Army Regulation 600-200 for a personality disorder that was so severe that it significantly impaired his ability to function effectively in a military environment.  However, Army Regulation 40-400 (Patient Administration) states that a Soldier who is diagnosed with PTSD should be referred to a medical evaluation board (MEBD) if the Soldier's medical fitness for return to duty is questionable, problematic, or controversial.  The two standards are basically the same.  If a Soldier's ability to function is impaired, then his return to duty is questionable, and if his symptoms were so severe, then they fall within the legal requirements of both regulations.  His symptoms stemmed from PTSD, not a personality disorder.

	b.  Army Regulation 40-501 (Standards of Medical Fitness) does not specifically refer to PTSD; it refers to anxiety disorders of which PTSD is one.  Such disorders fall below retention standards if persistence or recurrence of symptoms resulted in interference with effective military performance.  His record contains much evidence that his persistent PTSD symptoms interfered with the effective performance of his duties.

	c.  The medical evidence supports a conclusion that his PTSD caused him to fall below Army standards of medical fitness as set in Army Regulation 40-501.  The evidence also suggests that his PTSD made him unfit for continued military service because he could not perform in his military occupational specialty (MOS) as a cavalry scout.  A physical evaluation board (PEB) should have then decided the degree of his PTSD under the DVA disability rating system.  The DVA has already awarded him 50-percent service-connected disability compensation.

3.  Counsel provides the following additional documentary evidence in support of the applicant's request:

* the DVA rating decision, dated 13 May 2008
* his DD Form 214, dated 27 July 2007
* his enlistment and reenlistment contracts
* his 1996 and 2004 discharge orders
* the DVA's initial evaluation for PTSD, dated 27 December 2007
* his orders for award of the Combat Action Badge
* his sergeant (SGT)/E-5 promotion orders
* his Standard Forms 600 (Chronological Record of Medical Care), dated 31 March 2007, 5 April 2007, 9-16 May 2007, 6 June 2007, 13 June 2007, 21 June 2007, 24 June 2007, 27 June 2007, and 10 July 2007
* a sworn statement, dated 8 June 2007
* his mental evaluation report, dated 9 June 2007
* the DVA psychiatric evaluation report, dated 21 May 2008
* various military and civilian medical, dental, and immunization records used by the DVA in reaching a rating decision

CONSIDERATION OF EVIDENCE:

1.  Having prior service in the U.S. Army Reserve and the Army National Guard, the applicant's records show he enlisted in the Regular Army for a period of 5 years on 28 September 2004 and held MOS 19D (cavalry scout).  He executed a 5-year reenlistment on 7 July 2006 and he was assigned to the 1st Squadron, 7th Cavalry, 1st Cavalry Division, Fort Hood, TX.

2.  His records also show he served in Iraq from on or about 26 October 2006 to on or about 5 July 2007.  During this period he was promoted to SGT/E-5 on 1 March 2007 and he was awarded the Combat Action Badge on 31 March 2007.

3.  His other awards and decorations include the Army Commendation Medal, Army Achievement Medal, Army Good Conduct Medal, National Defense Service Medal (2nd Award), Global War on Terrorism Service Medal, Humanitarian Service Medal, and Army Service Ribbon.

4.  On 8 June 2007, he underwent a mental status evaluation.  This evaluation indicated that:

	a.  The applicant had been receiving treatment at the Wagonmaster Mental Health clinic since March 2007.  His behavior was indicative of a pervasive pattern of maladaptive functioning characterized by effective instability, exaggerated expression of emotions, impulsivity, heightened sense of entitlement, difficulty controlling anger, and recurrent suicidal threats.  He became aggressive and threatened to shoot other Soldiers.  His behavior was likely to be reckless and he could be expected to place himself and others at risk for harm.  It was unlikely his condition would have improved to where he would have been able to successfully perform a mission in a military environment, particularly while deployed.

	b.  It was strongly recommended that the applicant be administratively separated under the provisions of paragraph 5-13 of Army Regulation 635-200 by reason of a personality disorder.  The evaluation indicated that the applicant represented a command liability and impaired overall unit readiness and functioning.  The conditions and problems he presented were not amenable to hospitalization, treatment, transfer, disciplinary action, training, or reclassification. He had the mental capacity to understand and participate in the administrative proceedings.

5.  On 12 June 2007, the 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 a personality disorder. 
The immediate commander remarked that he determined that further duty could create a hazard to the applicant or others.  Furthermore, it was unlikely that his functioning would improve with psychological treatment or a rehabilitative transfer.

6.  On 12 June 2007, the applicant acknowledged receipt of the separation memorandum, consulted with legal counsel, and was advised of the basis for the contemplated separation action and its effect, of the rights available to him and the effect of any action taken by him in waiving his rights, and of the type of discharge and its effect on further enlistment or reenlistment.  He waived consideration of his case by an administrative separation board, waived personal appearance before an administrative separation board, and elected not to submit a statement on his own behalf.

7.  On 13 June 2007, his immediate commander initiated separation action against him in accordance with paragraph 5-13 of Army Regulation 635-200.  He indicated the applicant expressed instability, exaggerated expression of emotions, impulsivity, heightened sense of entitlement, difficulty controlling anger, and recurrent suicidal threats.  He recommended an honorable discharge.

8.  On 14 June 2007, his intermediate commander recommended approval of the recommendation for separation under the provisions of paragraph 5-13 of Army Regulation 635-200 with an honorable discharge.

9.  On 23 June 2007, the separation authority approved the proposed separation action against the applicant in accordance with paragraph 5-13 of Army Regulation 635-200 and directed he receive an honorable character of service.  On 27 July 2007, the applicant was accordingly discharged.  His DD Form 214 shows he completed 2 years and 10 months of creditable active service during this period.  This further shows the following entries:

* item 25 shows the entry "Army Regulation 635-200, paragraph 5-13"
* item 26 shows the entry "JFX"
* item 28 shows the entry "personality disorder"

10.  He and his counsel submitted the following documents:

	a.  a copy of the DVA rating decision, dated 13 May 2008, awarding him service-connected disability compensation effective 27 July 2007 for PTSD, right shoulder injury, lumbar spine strain, asthma, left knee injury, and tension headaches;

	b.  a copy of the DVA initial evaluation for PTSD, dated 27 December 2007, showing he displayed symptoms of headaches, trouble sleeping, irritability, difficulty remembering, nightmares, avoidance, hyper vigilance, loss of interest, feeling numb, and depression;

	c.  a copy of his Standard Form 600, dated 31 March 2007, showing he displayed PTSD symptoms worsened by his inability to sleep.  He reported his wife told him she did not want him back as long as he continued to have his temper.  His mental examination revealed he was depressed and anxious;

	d.  a copy of Standard Form 600, dated 5 April 2007, showing he was again seen by a medical doctor for suicidal ideation.  He had told his wife he was going to end it all and he was tired of living.  He also indicated that no one could help him and no one was qualified to help him.  The form shows the medical doctors felt he was being manipulative to get what he wanted and that he kept changing his story.  He continued to refuse help from the chaplain, mental health personnel, or the medical doctor;

	e.  a copy of his Standard Form 600, dated 9 May 2007, showing he suffered from chest pain;

	f.  a copy of his Standard Form 600, dated 10 May 2007, showing he threw a tantrum by throwing his shoulder-holstered weapon and radio to the ground when ordered by his superiors not to leave the aid station.  He also became belligerent, defied authority, and indicated that he believed the doctors were screwing around with him;

	g.  a copy of his Standard Form 600, dated 6 June 2007, showing he complained of lack of sleep and insomnia caused by flashbacks of a river battle when he was shot at and one his buddies was killed in action;

	h.  A copy of his Standard Form 600, dated 7 June 2007, wherein the squadron's aid station physician stated that in his professional opinion, as a board-certified and licensed physician, the applicant was misrepresenting himself and his self-prescribed medical conditions for secondary gains.  There was an inconsistency between his medical complaints and the medical evaluation.  He would complain of certain conditions, but his medical evaluation would show otherwise.  He was evaluated by mental health personnel on numerous occasions and he was treated for acute anxiety and mild depression.  However, the last evaluation showed his primary problem stemmed from a personality disorder.  His persistent inconsistent actions such as claiming to be stressed out to the point of suicide in one instance, yet he was observed having a water fight and wrestling with other Soldiers the next, or his exaggeration and flat-out fabrication of things made it extremely difficult to trust him.  His erratic behavior, dishonesty, and reluctance to accept responsibility for his actions made him unpredictable and a threat to his own safety and that of others;

	i.  a copy of his Standard Form 600, dated 21 June 2007, showing he expressed that he was going to kill himself and that he was placed on a suicide watch;

	j.  a copy of his Standard Form 600, dated 21 June 2007, showing he was taken by an escort to use the phone but yelled at his escort and told him he had nothing to live for because his wife wanted to leave him;

	k.  a copy of his Standard Form 600, dated 24 June 2007, showing he was taken to the aid station after he tried to kill himself by cutting his wrists with a set of keys.  His wounds were superficial and he did not require sutures.  The military doctor indicated that he was, again, trying to get attention due to his narcissistic tendencies and impulsive behavior;

	l.  a copy of his Standard Form 600, dated 10 July 2007, showing he was diagnosed as having anxiety, depression, difficulty sleeping, insomnia, and early morning awakening;

	m.  a copy of the DVA psychiatric evaluation, dated 21 May 2008, showing he reported that he was traumatized by events in his childhood and exacerbated by his combat experience; and

	n.  a voluminous copy of various military and civilian medical records, charts, reports, slips, notes, and other medically related documents dated prior to and during his last enlistment and after his discharge.

11.  Army Regulation 635-200 provides for separation of enlisted personnel.  Paragraph 5-13 provides the criteria for discharge because of a personality disorder.  It states that a Soldier may be separated for personality disorders, not amounting to disability under Army Regulation 635-40, that interfere with assignment to or performance of duty.  The diagnosis of a personality disorder must have been established by a physician trained in psychiatry and psychiatric diagnosis.  Separation because of a 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 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of a physical disability.  It provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In pertinent part, it states that although the ability of a Soldier to reasonably perform his or her duties in all geographic locations under all conceivable circumstances is a key to maintaining an effective and fit force, this criterion will not serve as the sole basis for a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member may reasonably be expected to perform because of his or her office, rank, grade, or rating.

13.  Army Regulation 635-40 states there are many conditions, including neuropsychiatric disorders, which may be improved sufficiently by treatment to prevent disability, or to significantly decrease it.  If a Soldier unreasonably fails or refuses to submit to medical or surgical treatment or therapy, that portion of the disability that results from such failure or refusal will not be rated.

14.  Army Regulation 635-40 provides for MEBD's which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501.  If the MEBD determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

15.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).  It outlines medical conditions which may render and individual unfit or which may preclude enlistment and notes that both personality and adjustment disorders will be dealt with through administrative and not medical channels.  Paragraph 3-35 of this regulation states that a history of or current manifestations of personality disorders render an individual administratively unfit.  These conditions render an individual administratively unfit rather than unfit because of physical illness or medical disability.  These conditions will be dealt with through administrative channels, including Army Regulation 635-200.

16.  Army Regulation 40-400 (Patient Administration) prescribes policies and mandated tasks governing the management and administration of patients.

	a.  Paragraph 5-3 states that patients who do not have a condition listed in Army Regulation 40-501 and who are scheduled for any administrative separation or retirement will be returned to duty for separation.  This disposition may be made by either the attending medical officer or the military treatment facility commander.

	b.  Paragraph 7-1 states that physicians who identify Soldiers with medical conditions not meeting fitness standards for retention will initiate a DA Form 3349 (Physical Profile) referring them to the PDES.  Soldiers issued a permanent profile with a numerical designator of 3 or 4 in one of the physical profile factors who meet retention standards are referred to the MOS/medical retention board.  If the Soldier does not meet retention standards, an MEBD is mandatory and will be initiated by the PEB liaison officer.

	c.  Paragraph 7-5 states that one of the situations that requires MEBD consideration includes a situation involving patients whose medical fitness for return to duty is questionable, problematical, or controversial.  When a member's fitness for further military duty is questionable, it becomes essential that all abnormalities in his or her condition be thoroughly evaluated.

	d.  Paragraph 7-9 states that every effort must be made to distinguish symptoms and impairment resulting from personality disorder or maladaptive traits from impairments based on other psychiatric conditions.

17.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that the SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The primary purpose of SPD codes is to provide statistical accounting of reasons for separation.  They are intended exclusively for the internal use of the Department of Defense and the Military Services to assist in the collection and analysis of separation data.  The SPD code JFX is the correct code for Soldiers separating under paragraph 5-13 of Army Regulation 635-200 by reason of a personality disorder.

18.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.

19.  Title 38, U.S. Code, sections 1110 and 1131, permit the DVA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher DVA rating does not establish error or injustice in the Army rating.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The DVA does not have authority or responsibility for determining physical fitness for military service.  The DVA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, these two government agencies operating under different policies may arrive at a different disability rating based on the same impairment.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant and his counsel contend that the narrative reason for his separation should be changed to a medical discharge with the corresponding authority for discharge and separation code.

2.  The evidence of record shows the applicant underwent a mental status evaluation that determined he was diagnosed with a personality disorder that severely affected his ability to function effectively in a military environment.  Accordingly, his chain of command initiated separation action against him under the provisions of paragraph 5-13 of Army Regulation 635-200.  His discharge was administratively correct and in conformance with applicable regulations with no indication of any violations of his rights.

3.  The evidence submitted by the applicant and his counsel as well as the argument he presented were noted; however, they are not sufficiently mitigating to change the applicant's discharge to a medical discharge or retirement.  The preponderance of evidence indicates that the applicant did indeed have a personality disorder as shown by his mental status evaluation, various chronological records of medical care, and his separation packet.

4.  Contrary to counsel's contention that the applicant was diagnosed with PTSD prior to his discharge, the evidence of record shows he was found to have a personality disorder, not PTSD.  It is possible that he could have been diagnosed with PTSD; however, his Standard Form 600, dated 5 April 2007, shows he refused help from mental health personnel or a medical doctor.  In light of that unreasonable refusal to get help for what he now contends was PTSD, he could not have been rated for that condition.  

5.  He now believes he should have received a medical discharge for his PTSD because the DVA granted him 50-percent service-connected disability compensation for that condition.  However, an award of a rating by another agency does not establish error by the Army.  Operating under different laws and its own policies, the DVA does not have the authority or the responsibility for determining medical unfitness for military service.  The DVA may award ratings because of a medical condition related to service (service connected) and affects the individual's civilian employability.

6.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation and can only be accomplished through the PDES.  The applicant was never diagnosed with PTSD or any other condition that would have warranted his entry into the PDES.  Therefore, he never underwent an MEBD.  Without an MEBD, there would have been no basis for referring him to a PEB.  Without a PEB, the applicant could not have been issued a medical discharge or separated/retired for physical disability.

7.  His administrative discharge under the provisions of paragraph 5-13 of Army Regulation 635-200 for a personality disorder was proper.  His discharge was administratively correct and in conformance with applicable regulations with no indication of any violations of his rights.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.  Therefore, there is no reason to correct his DD Form 214 as he has requested.

8.  He was discharged under the provisions of paragraph 5-13 of Army Regulation 635-200 for a personality disorder.  Absent his personality disorder, there was no fundamental reason to process him for discharge.  The underlying reason for his discharge was his personality disorder.  The only valid narrative reason for separation permitted under that paragraph is "personality disorder" and the appropriate separation code associated with his discharge is "JFX," both of which are correctly shown on his DD Form 214.

9.  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 did not submit evidence that would satisfy this requirement.  In view of the circumstances in this case, there is insufficient evidence to grant the requested relief.  The applicant has not shown error, injustice, or inequity for the relief he requests.


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)                                         AR20090019360



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ABCMR Record of Proceedings (cont)                                         AR20090019360



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