BOARD DATE:	  5 August 2010

		DOCKET NUMBER:  AR20090019494 


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 narrative reason for separation from "personality disorder" to "medical retirement."

2.  The applicant states he was wrongfully discharged, though honorably, due to a personality disorder.

	a.  His problems started subsequent to his reassignment from Korea to Fort Hood, TX.  He was shunted from one unit to another due to being undesirable and getting in trouble.  He was also forced to live away from his family due to his depression and thus he became even more unstable.  He was recommended for promotion and attendance at the Primary Leadership Development Course, but he chose to go absent without leave (AWOL) instead because he could not control his feeling of worthlessness.  He was then transferred to Fort Polk, LA, and began experiencing family problems culminating in divorce.  He continued his depression and drank alcohol.  He ultimately sought professional help and was put on medications.  He then sought a transfer from his unit, but he was denied.  At that stage, he was under a lot of pressure by members of his chain of command, particularly since he became a sergeant (SGT) in a leadership position.

	b.  Subsequent to his discharge and after a successful appeal, he received service-connected disability compensation from the Department of Veterans Affairs (VA) for his depression.  Since his problems started during his service in the military and his depression was the true reason for his discharge, he should be awarded a medical retirement.

3.  The applicant did not provide any additional documentary evidence.

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 records show he enlisted in the Regular Army on 20 October 1993 and initially held military occupational specialty (MOS) 19D (Cavalry Scout). 
He also executed a 5-year reenlistment on 26 February 1996 and held MOS 95B (Military Police).  The highest rank/grade he attained during his military service was SGT/E-5.

3.  His records show he served in Korea from March 1994 to March 1995.  His awards and decorations include the Army Commendation Medal (2nd Award), the Army Achievement Medal, the Army Good Conduct Medal, the National Defense Service Medal, the Army Service Ribbon, the Overseas Service Ribbon, and the Driver and Mechanic Badge with Driver W-Bar.

4.  Subsequent to completion of his Korea tour, he was reassigned to Fort Knox, KY.  While there, he was referred to the Department of Psychiatry at Bayne-Jones Army Community Hospital, Fort Polk, LA, in a temporary duty status.

5.  On 18 May 1998, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for failing to go to his psychiatric appointment, twice failing to go at the time prescribed to his appointed place of duty, and making a false statement.  

6.  On 4 June 1998, his platoon leader rendered a sworn statement wherein she stated that she received a phone call from the applicant's squad leader informing her the applicant had indicated he had decided not to go to the field with his unit. 
The squad leader was concerned about the applicant's attitude because he also threatened to go AWOL.
7.  On 5 June 1998, his platoon sergeant rendered a sworn statement wherein he stated that he and the chain of command had talked to the applicant on several occasions in an attempt to assist him with his issues but he ignored advice and threatened to go AWOL.

8.  On 18 June 1998, he underwent a mental status evaluation at Fort Polk, LA, after having displayed an inability to function in his platoon and unit due to a depressive disorder, inability to motivate himself, and the belief that he was a danger to himself and others.  He had also made statements implying he would hurt others.  The clinical psychologist indicated the applicant carried the following diagnosis:

* Axis I:  "MDE"
* Axis II: borderline personality disorder
* Axis III: none

He was diagnosed as having a personality disorder and was psychiatrically cleared for any action deemed appropriate by his chain of command.  The military clinical psychologist indicated that he met psychiatric criteria for separation in accordance with paragraph 5-13 of Army Regulation 635-200 (Personnel Separations) and opined the applicant' s problem would not respond to command efforts at rehabilitation or any treatment methods available in any military health facility.

9.  On 17 July 1998, his immediate commander notified him 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 an honorable discharge.  The immediate commander remarked that the applicant's medical diagnosis had been determined as borderline personality disorder and his condition represented a maladaptive chronic pattern of behavior that would interfere with his ability to perform his duties.

10.  On17 July 1998, he acknowledged receipt of the notification of his pending separation action and he was subsequently advised by counsel of the basis for the contemplated action to separate him for a personality disorder under the provisions of paragraph 5-13 of Army Regulation 635-200.  He elected not to submit a statement and further indicated he understood that he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued to him.

11.  On 21 July 1998, his immediate commander initiated separation action against him under the provisions of paragraph 5-13 of Army Regulation 635-200 by reason of mental disorder.  He recommended an honorable discharge.

12.  On 28 July 1998, 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 be issued an honorable character of service. 
Accordingly, he was discharged on 11 August 1998.

13.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably discharged under the provisions of paragraph 5-13 of Army Regulation 635-200.  This form also shows he completed 4 years, 9 months, and 22 days of creditable active service.  The following entries are also shown:

* item 25 (Separation Authority) - "Army Regulation 635-200, paragraph 
5-13"
* item 26 (Separation Code) - "JFX"
* item 28 (Narrative Reason for Separation) - "personality disorder"

14.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-13 provides that a Soldier may be separated for a personality disorder, not amounting to disability under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), 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 Soldier's ability to perform duty.

15.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPD code JFX is the correct code for members separating under the provisions of paragraph 5-13 of Army Regulation 635-200 by reason of a personality disorder.

16.  Army Regulation 635-40 prescribes the Physical Disability Evaluation System (PDES) and provides for medical evaluation boards (MEB) 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 (Standards of Medical Fitness).  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a physical evaluation board (PEB).

17.  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 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.

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 of 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 of less than 30 percent.

19.  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.  However, an award of a higher VA 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 VA does not have authority or responsibility for determining physical fitness for military service.  The VA 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, the VA may award a rating even though the Army did not find the individual to be unfit.  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 contends the narrative reason for his separation should be changed to medical retirement.

2.  The evidence of record shows the applicant underwent a mental status evaluation that determined he had 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 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 the applicant did indeed have a personality disorder as shown by his mental status evaluation, counseling/sworn statements, and his separation packet.

4.  An award of a rating by another agency does not establish error by the Army. 
Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because of a medical condition related to service (service connected) and affects the individual's civilian employability.

5.  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 a condition that would have warranted his entry into the PDES.  Therefore, he never underwent an MEB.  Without an MEB, there would have been no basis for referring him to a PEB.  Without a PEB, he could not have been retired or separated for physical disability.

6.  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.

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 were therefore appropriate under the circumstances.  Therefore, there is no reason to correct his DD Form 214 as he has requested.

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)                                         AR20090019494



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ABCMR Record of Proceedings (cont)                                         AR20090019494



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