IN THE CASE OF:	  

		BOARD DATE:	  12 January 2011

		DOCKET NUMBER:  AR20100017367 


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) to:

* add one or two "army commendations" (interpreted to mean any and all awards either awarded or authorized)
* change his narrative reason for separation from personality disorder to post-traumatic stress disorder (PTSD)

2.  The applicant states the Army was in error in listing "personality disorder" as his narrative reason for separation, when in fact it was due to PTSD.  He further states he has a claim pending with the Department of Veterans Affairs (VA).

3.  The applicant provides his DD Form 214.

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 enlisted in the Regular Army on 27 September 1978.  Records show he completed one station unit training and he was awarded military occupational specialty 19D (Cavalry Scout).  The highest rank/grade he attained while on active duty was sergeant (SGT)/E5.

3.  He had an extensive counseling history for his overall attitude, adaptability, acceptance of responsibility, attention to detail, care for subordinates, allowing personal matters to affect duty performance, and failing to go at the time prescribed to his appointed place of duty on multiple occasions.
 
4.  On 18 July 1984, he received a Letter of Concern from his commander, who states the applicant:

* Displays a lackadaisical attitude toward his peers
* Continues to claim he cannot handle the stress of the job
* Is being barred from reenlistment 
* Is being referred for evaluation by the post mental health evaluation section
* May be recommended for chapter 5 action, dependent on the outcome of the mental health evaluation
* Will face disciplinary action if he continues to make adverse comments regarding the Army, his unit, and his chain of command
* Will face disciplinary action if he cannot get along with his fellow noncommissioned officers

5.  A DA Form 3822-R (Report of Mental Status Evaluation), dated 24 July 1984, shows he was examined by competent medical authorities and he was diagnosed as having adjustment disorder with mixed disturbances of emotion and conduct.  The examiner determined that the applicant was mentally responsible, able to distinguish right from wrong and able to adhere to the right, and had the mental capacity to understand and participate in proceedings.  His mental status evaluation revealed he possesses:

* Passive and aggressive behavior
* Full alertness and orientation
* Anxious and depressed moods
* Symptoms of irritability, anxiety, depression, and impulsivity
* Clear thinking process with normal thoughts and good memory

6.  The attending psychiatrist stated there was no psychiatric disease or defect which warranted disposition through medical channels and cleared him for administrative action as deemed appropriate by his command.  

7.  On 26 July 1984, he received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for disobeying a lawful order.

8.  On 13 September 1984, he was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-13, due to a personality disorder.  The commander cited his diagnosis of having a personality disorder as the basis for his recommendation.  He acknowledged receipt of the notification on 13 September 1984 and, after consulting with counsel on 14 September 1984, he elected not to submit a statement in his own behalf.

9.  The appropriate authority approved the recommendation for discharge on
21 September 1984.  Accordingly, on 28 September 1984, he was honorably discharged under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-13, by reason of a personality disorder.  His DD Form 214 shows he completed 6 years and 2 days of net active service during this period.  

   a. Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 shows he received:

(1)	 Army Service Ribbon
(2)	 Overseas Service Ribbon
(3)	 Army Good Conduct Medal
(4)	 Noncommissioned Officer Professional Development Ribbon (1)
(5)	 Expert Marksmanship Qualification Badge with Rifle Bar (M-16)
(6)	 Sharpshooter Marksmanship Qualification Badge with Grenade Bar

b. Item 25 (Separation Authority), shows "AR 635-200, Para 5-13.

c. Item 26 (Separation Code), shows "JFX."

d. Item 28 (Narrative Reason for Separation), shows "Personality Disorder."

10.  There is no documentation in the available records, nor has he provided any documentation, which indicates he suffers, or suffered at the time of his separation from PTSD.

11.  There is no documentation in the available records, nor has he provided any documentation, which indicates he was ever recommended for or awarded any Army Commendation Medals.

12.  Permanent Orders 94-17, United States Army Regional Personnel Center Nurnberg [sic] (Nuremberg), dated 18 July 1983, awarded him the Army Achievement Medal (AAM), for meritorious service from 2 February 1982 to        1 July 1983.

13.  There is no documentation in the available records, nor has he provided any documentation, which indicates he was awarded any personal decorations not previously addressed.

14.  Army Regulation 600-8-22 (Military Awards) states the Army Commendation Medal (ARCOM) may be awarded to any member of the Armed Forces of the United States who, while serving in any capacity with the Army after 6 December 1941, distinguishes himself or herself by heroism, meritorious achievement, or meritorious service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

15.  Title 10, U.S. Code, section 1130 provides the legal authority for consideration of proposals for decorations not previously submitted in timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.

16.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to the Secretary of the Army at the following agency:  Commander, U.S. Army Human Resources Command, ATTN: AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY 40122.  The applicant's unit must be clearly identified, along with the period of assignment and the award being recommended.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests for consideration of awards should be supported by sworn affidavits, eyewitness statements, certificates, and related documents.  Corroborating evidence is best provided by commanders, leaders and fellow Soldiers who had personal knowledge of the circumstances and events relative to the request.  The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rest with the requestor.

17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a medical evaluation board (MEB).  Those members who do not meet medical retention standards will be referred to a physical evaluation board (PEB) for a determination of whether they are able to perform the duties of their grade and military specialty with the medically-disqualifying condition.

18.  Army Regulation 635-40, paragraph 2-2b(1) then in effect, provided that when a member was being separated by reasons other than physical disability, his or her continued performance of assigned duty commensurate with his or her rank or grade until he or she was scheduled for separation or retirement created a presumption that he or she was fit.  This presumption could be overcome only by clear and convincing evidence that he or she was unable to perform his or her 
duties for a period of time or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

19.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states, in pertinent part, that the SPD code JFC is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 5-13, by reason of personality disorder.  SPD code JFF is the appropriate code to assign to Soldier separated under the provisions of Army Regulation 635-200 by reason of Secretarial Authority.

20.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) provides the basic authority for the separation of enlisted personnel.  Paragraph 5-13 provides that a Soldier may be separated for personality disorder (as determined by medical authority), not amounting to disability under Army Regulation 635-40, which 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.  The regulation also directs that commanders will not take action prescribed in this chapter in lieu of disciplinary action and requires that the diagnosis conclude the disorder is so severe that the Soldier’s ability to function in the military environment is significantly impaired.
21.  Army Regulation 635-200, chapter 5, states the separation of enlisted personnel for the convenience of the Government is the prerogative of the Secretary of the Army (SA).  Except as delegated by this regulation or by special Department of the Army directives, it will be-accomplished only by the SA's authority.  The separation of any enlisted member of the Army under this authority will be based on an SA determination that separation is in the best interests of the Army.

DISCUSSION AND CONCLUSIONS:

1.  Orders show he was awarded the AAM; therefore, he is entitled to correction of his DD Form 214 to show this award.

2.  The governing Army regulation states that for personal decorations (which include the ARCOM), formal recommendation, approval through the chain of command, and announcement of orders are required.  In the absence of official orders, he is not entitled to correction of his DD Form 214 to show any awards of the ARCOM.

3.  Nevertheless, while the available evidence is insufficient for awarding the applicant the ARCOM, this in no way affects the applicant’s right to pursue his claim for the ARCOM by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130.

4.  With regard to his narrative reason for separation; there is no evidence of record, and he has not submitted any evidence, to support his claim he suffered from PTSD while on active duty.  The evidence of record in this case shows he was evaluated by a psychiatrist who diagnosed him with an adjustment disorder.  He was not diagnosed with a personality disorder.  Nevertheless, his inability to adapt to adverse situations as well as his apparent depression was interpreted by the immediate commander as a personality disorder.  Accordingly, he initiated separation action against the applicant.

5.  By regulation, in order to initiate separation action for a personality disorder, the diagnosis of such condition must be done by a psychiatrist.  Although the applicant was never diagnosed with PTSD during his military service, and although this condition, if it were diagnosed, would not have made the applicant unfit for retention, the narrative reason for the applicant's separation should not have been a personality disorder.  

6.  Therefore, in the interest of equity, his narrative reason and his separation code should be corrected to Secretarial Authority with a corresponding separation code.  His DD Form 214 should be corrected as shown below.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X____  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 as follows:

* add to item 13 his award of the AAM
* delete from item 25 the entry "AR 635-200, Para 5-13," and add the entry "AR 635-200, Chapter 5"
* delete from item 26 the entry "JFX," and add the entry "JFF"
* delete from item 28 the entry "Personality Disorder," and add the entry "Secretarial Authority"

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correcting his DD Form 214 to show award of the ARCOM, or to change the narrative reason for separation from "personality disorder" to "post-traumatic stress disorder (PTSD)."  



      _________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)                                         AR20100000181



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ABCMR Record of Proceedings (cont)                                         AR20100017367



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