IN THE CASE OF:	  

		BOARD DATE:	  24 June 2010

		DOCKET NUMBER:  AR20090020563 


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 his discharge due to personality disorder be changed to a physical disability retirement.

2.  The applicant states:

   a.  Upon arrival at basic training, he was forced to hold a 100-pound rucksack over his head.  When he dropped it on his head he heard something snap or pop in his back.  He endured continuous pain in his back for a month.  After a month he went to the clinic where a physician assistant ordered an x-ray and informed him that he had a fracture of the C-7 vertebra.  He mentions that he had been hit in the head with a sledge hammer prior to his entrance in the Army, but there had been no fracture at that time.  He attaches an emergency room record that substantiates this.  The pain continued through his initial entry training and airborne training.

   b.  While on leave before being reassigned to Italy and deployment to Afghanistan, the pain became unbearable and he sought medical help.  The University of Nebraska Medical Center confirmed a fracture at C-7.  The doctor there wanted to do a magnetic resonance image (MRI) and try physical therapy, but the applicant's request for an extension of his leave was denied.
   
   c.  He deployed to Italy.  After 2 weeks of training, his legs gave out.  An MRI was scheduled but prior to the MRI he was ordered to undergo psychological testing.  The test was 500 questions long.  He was on several medications for pain and sleep deprivation.  At the close of the psychological testing he was asked to sign the separation paperwork.  He was told that separation under "Chapter 5-13" would expedite his return to the United States.  His commander told him that, if he did not sign, he would be sent to Afghanistan.  He was never told that the chapter 5-13 was separation for a personality disorder.

	d.  His legal research shows that military doctors are telling injured Soldiers that separation because of personality disorder will expedite their separation and that the Department of Veterans Affairs (VA) will take care of them.  Soldiers do not know they should request a medical board.  When they find out what separation under "chapter 5-13" is they are shocked.

   e.  He has a service-connected disability and the separation paperwork should have referred to the injuries he sustained at Fort Benning, GA.  He was never offered a medical board or a reclassification board.  When he got home, his recruiter told him he should have requested a medical board.  An affidavit from a fellow Soldier states that he was injured and complained a lot about neck and back pain.  The affidavit shows his activities at Fort Benning were curtailed by individuals who knew about his injury.

3.  The applicant submits the following:

* an emergency room record from 5 June 2003 when he was hit in the head with a sledge hammer that contains the entry "Three View of C spine revealed no fracture"
* his 2 June 2009 deployment orders
* a 5-page website article about separations under "chapter 5-13"
* a 5 October 2009 statement from B---- M------- to the effect that the applicant was injured during basic training; made numerous complaints about pain in his upper back and neck; was examined by a medical physician; and briefly had his training activities limited
* his 19 August 2009 separation orders

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 4 February 2007.  He was
24 years and 8 months old and he had an 11th grade education.  He required a waiver, having been discharged from the Army National Guard in 2003 for failing to report for Phase I and Phase II training.

2.  He completed training as an infantryman and basic airborne training.  On 29 July 2009, he reported to A Company, 1st Battalion, 503rd Infantry (Airborne), 173rd Airborne Brigade Combat Team at Vicenza, Italy.
3.  At a 7 July 2009 mental health evaluation, recorded on a DA Form 3822 (Report of Mental Status Evaluation), a licensed psychologist reported:

	a.  the applicant's behavior was normal, he was fully alert and oriented, and he displayed an unremarkable mood;

	b.  his thinking process was clear, thought content normal, and memory good;

	c.  he was considered to have the mental capacity to participate in proceedings, he was mentally responsible, and he met retention standards;

	d.  the diagnostic impression was that the applicant suffered from a dependent personality disorder, major depression and panic disorder without agoraphobia.  This represented a mental condition that did not constitute a disability under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) and separation under Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations), paragraph 5-13 was recommended;

   e.  the applicant had received "extensive evaluation at USAHC-VCZ [U.S. Army Hospital, Vicenza] including today's command directed evaluation."

4.  A 3 August 2009 counseling statement indicates the applicant's team leader was notified on that date that the applicant had been seen by mental health about a personality disorder on 7 July 2009.  The team leader considered this to have been a breach of the chain of command by the applicant.  However, the applicant was encouraged to continue to get whatever help he needed.  He was also counseled about the possibility of a bar to reenlistment or separation under chapters 5, 13, or 14 of Army Regulation 635-200.

5.  The applicant submitted a DD Form 2697 (Report of Medical Assessment), dated 4 August 2009, in which he reported trouble with depression and anxiety.  He also indicated he had a "Fractured C-7."  The medical examiner noted this and indicated there was a possibility of a pre-existing condition of the neck and back.  He also recorded that during basic training x-rays had identified a fracture of the spinous process [the bony outside/downward protrusion at the very back of each vertebra] of the C-7 vertebra.  The associated medical examination report also notes the same fracture.  The applicant was found qualified for service with a 111111 profile.

6.  On 7 August 2009, the company commander notified the applicant of his intent to recommend separation under Army Regulation 635-200, paragraph
5-13, due to a personality disorder and informed the applicant of his rights.
7.  The applicant consulted with counsel and, on 10 August 2009, acknowledged that he had been informed of the basis of the contemplated separation action and of his rights.  He indicated that statements in his own behalf were not being submitted but reserved the right to representation by counsel.  He indicated that he understood the consequences of the discharge.

8.  The company commander formally recommended separation on 10 August 2009.

9.  On 26 August 2009, the applicant was honorably discharged under the provisions of Army Regulation 635-200, paragraph 5-13, due to a personality disorder.  He completed 6 months and 23 days of creditable active service during this period.

10.  Army Regulation 635-200, paragraph 5-13, sets forth the policy and procedures for separation because of personality disorder, and states, under the guidance in chapter 1, section II, a Soldier with less than 24 months of active duty service, as of the date separation proceedings are initiated, may be separated for personality disorder (not amounting to disability (see Army Regulation 635-40)) that interferes with assignment or with performance of duty, when so disposed as indicated in a, below.

	a.  This condition is a deeply ingrained maladaptive pattern of behavior of long duration that interferes with the Soldier’s ability to perform duty. (Exceptions: combat exhaustion and other acute situational maladjustments.)  The onset of personality disorder is frequently manifested in the early adult years and may reflect an inability to adapt to the military environment as opposed to an inability to perform the requirements of specific jobs or tasks or both.  As such, observed behavior of specific deficiencies should be documented in appropriate counseling or personnel records and include history from sources such as supervisors, peers, and others, as necessary to establish that the behavior is persistent, interferes with assignment to or performance of duty, and has continued after the Soldier was counseled and afforded an opportunity to overcome the deficiencies. The diagnosis of personality disorder must have been established by a psychiatrist or doctoral-level clinical psychologist with necessary and appropriate professional credentials who is privileged to conduct mental health evaluations for the DOD components.  It is described in the Diagnostic and Statistical Manual (DSM-IV) of Mental Disorders, 4th edition.  In the case of Soldiers who have served or are currently serving in an imminent danger pay area and are within the first 24 months of active duty service, the diagnosis of personality disorder for separation under this paragraph must be corroborated by the Medical Treatment Facility (MTF) Chief of Behavioral Health (or an equivalent official).  The corroborated diagnosis will be forwarded for final review and confirmation by the Director, Proponency of Behavioral Health, Office of the Surgeon General (DASG-HSZ).  Medical review of the personality disorder diagnosis will consider whether PTSD, traumatic brain injury (TBI), and/or other co-morbid mental illness may be significant contributing factors to the diagnosis.  A Soldier will not be processed for administrative separation under this paragraph if PTSD, TBI, and/or other co-morbid mental illness are significant factors to a diagnosis of personality disorder, but will be evaluated under the physical disability system in accordance with Army Regulation 635-40.

	b.  Commanders will not take action prescribed in this chapter in lieu of disciplinary action solely to spare a Soldier who may have committed serious acts of misconduct for which harsher penalties may be imposed under the Uniform Code of Military Justice (UCMJ).

	c.  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. Separation for personality disorder is not appropriate when separation is warranted under chapters 4, 5, 7, 9, 10, 11, 13, 14, 15, or 18 of this regulation; Army Regulation 380–67 (Personnel Security Program); or Army Regulation 635–40.

	d.  Nothing in this paragraph precludes separation of a Soldier who has such a condition for other reasons authorized by this regulation.

	e.  Separation processing may not be initiated under this paragraph until the Soldier has been counseled formally concerning deficiencies and has been afforded ample opportunity to overcome those deficiencies as reflected in appropriate counseling or personnel records (see paragraph 1–16).  The Soldier will also be counseled that the diagnosis of a personality disorder does not qualify as a disability.

	f.  When it has been determined that separation under this paragraph is appropriate, the unit commander will take the actions specified in the notification procedure (see chapter 2, section I).

	g.  Separation authority for Soldiers separated under this paragraph who are, or have been, deployed to an area designated as imminent danger pay area is the General Court-Martial Convening Authority (GCMCA).  This authority may not be delegated.  In all other cases, the separation authority is the Special court-Martial Convening Authority (SPCMCA).

	h.  The service of a Soldier separated per this paragraph will be characterized as honorable unless an entry-level separation is required under chapter 3, section II.  Characterization of service under honorable conditions may be awarded to a Soldier who has been convicted of an offense by general court-martial or who has been convicted by more than one special court-martial in the current enlistment, period of obligated service, or any extension thereof.

11.  Army Regulation 15-185 (Boards, Commissions, and Committees 
Army Board for Correction of Military Records (ABCMR)) paragraph 2-9, states that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that he injured his neck in basic training and is disabled.  He did not understand what was happening to him.  He was not told that he was being separated because of a personality disorder.

2.  The applicant was duly diagnosed with a personality disorder and he was advised by counsel during the discharge process about the meaning and consequences of the discharge.  His assertion that he was not told is without merit.

3.  He was found qualified for service by a physician who was aware of the fracture at C-7.  There is no available evidence that he was physically unable to perform his assigned duties.

4.  Notwithstanding the psychologist's notation that the mental health evaluation was command directed, the counseling statement gives the distinct impression that the applicant went "shopping" for a personality disorder discharge.

5.  The separation authority's directive is not contained in the available record.  Administrative regularity must be presumed.

6.  There is no documentation to support the applicant's contention and no rationale to support the implied conclusion that those alleged circumstances would warrant the requested relief.

7.  Based on 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)                                         AR20090020563



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ABCMR Record of Proceedings (cont)                                         AR20090020563



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