IN THE CASE OF:

		BOARD DATE:	    17 May 2011

		DOCKET NUMBER:  AR20100023710 


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 the narrative reason for his discharge be changed from Condition, Not a Disability to Medical Disability. 

2.  He states, in effect, he was discharged from the Army with Post-Traumatic Stress Disorder (PTSD) for which he is currently rated by the Department of Veterans Affairs (VA) as 60 percent disabled.  

3.  He believes an administrative error occurred after he was granted an honorable discharge from the Army Discharge Review Board (ADRB) which changed the narrative reason for separation from a disability to a "Physical Condition, Not a Disability" which is currently shown on his DD Form 214 (Certificate of Release or Discharge from Active Duty).

4.  He also states this error is preventing him from receiving his full benefits from the VA for school.  He was due to start school in September 2010; however, because of the error he is experiencing a hardship.

5.  He provided:

* page one of his administrative discharge
* a report of mental status evaluation
* his voided DD Form 214
* his current DD Form 214
* an honorable discharge certificate

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.  His military personnel records show he enlisted in the Regular Army on 
19 October 2005 for 4 years.  After the completion of training, he served in military occupational specialty 92F (Petroleum Supply Specialist).  His record also shows he served in Iraq from 27 July 2006 through 27 December 2007.  

3.  His record contains a psychiatric evaluation, which shows he was evaluated by a civilian medical doctor, board certified in psychiatry, on 12 and 15 February 2007.  The doctor noted the applicant did not adjust well to routine military life.  He started to experience anxiety over the uncertainty of his situation, and as time progressed became increasingly preoccupied with fear.  The stress of adjusting to ordinary military life was sufficient to cause mood instability and disturbances of the thought process.  The anticipation of eventually being sent into combat created an exaggerated level of fear.  The doctor diagnosed him with PTSD, noting that his symptoms would make it impossible to continue military service and that he could potentially be a threat to himself and others.  He recommended the applicant seek the treatment available to him and that he be discharged from military service.  

4.  On 20 April 2007, his immediate commander referred him for a mental health assessment.  His Report of Mental Status Evaluation shows his:

* behavior was normal
* level of alertness was normal
* orientation was normal
* mood and affect was unremarkable
* thinking process was clear
* thought content was normal
* memory was good

5.  His mental assessment also noted he had the mental capacity to understand and participate in proceedings and he met the retention requirements of 
chapter 3, Army Regulation 40-501 (Standards of Medical Fitness).  The remarks section of this form shows he was found to have Anxiety Disorder – Not Otherwise Stated.  The doctor also noted the applicant met the psychiatric criteria for expeditious separation under the provisions of paragraph 5-17, Army Regulation 635-200 (Active Duty Enlisted Administrative Separations).

6.  On 3 May 2007, charges were preferred against the applicant in that, on or about 14 January 2007, with intent to avoid hazardous duty or to shirk important service, namely deployment to Iraq, quit his unit and remain absent until on or about 19 April 2007.

7.  The commander who preferred the charges stated:

I personally interact with PVT P___ on a daily basis.  His pattern of misconduct in OIF appears to be consistent with Dr. C___'s assessment of anxiety disorder.  SM has not demonstrated to his chain of command a willful intent to misbehave.  Consistent with a verbal conversation with Dr. C___, I find PVT P___ to be lacking in the mental and emotional maturity to adequately follow basic instructions, this contributing to the misconduct for which I charged him.  

8.  On 18 June 2007, the U.S. Army Trial Defense Service, Schofield Barracks, HI, submitted a request to the General Court-Martial Convening Authority (GCMCA) for a Post-Trial Discharge in Lieu of Trial by Court-Martial.  She noted that the applicant was pending court-martial charges and requested that an investigation into the mental capacity and responsibility of the applicant be conducted.  She based her request on the belief that he lacked the mental responsibility for the offense (Desertion) charged and lacked the mental capacity to stand trial.  

9.  An undated and unsigned memorandum from the GCMCA to Tripler Army Medical Center, Subject:  Request for Sanity Board in United States vs. Private R____ P____ directed an inquiry be conducted into the mental capacity and responsibility of the applicant.  The results of the sanity board are not in the available record.  However, his record contains an undated memorandum signed by the GCMCA which dismissed all pending court-martial charges. 

10.  On 16 July 2007, during his tour in Iraq, his immediate commander initiated action to separate him from the military under the provisions of chapter 5, paragraph 5-17 of Army Regulation 635-200, for Other Physical or Mental 


Disorders.  The memorandum stated the reason for the proposed action was due to his diagnosis of Anxiety Disorder.  His commander also recommended he receive a less than favorable characterization of service due to the applicant's intent to avoid hazardous duty or to shirk important service on 14 January 2007. 

11.  On the same date, he acknowledged receipt of the commander's intent to separate him under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-17.  

12.  On 23 July 2007, he consulted with counsel on the basis of the separation action under the provisions of Army Regulation, 635-200 chapter 5, paragraph 
5-17 for Other Designated Physical or Mental Conditions.  He acknowledged he understood the effects a discharge of that nature could have and of the rights available to him; and the effect of any action taken by him in waiving any of his rights.  He also understood that he may be given an honorable or general discharge, if eliminated from the service, and understood that he may expect to encounter substantial prejudice in civilian life if a general discharge, under honorable conditions is issued to him.  

13.  He elected to make a statement in which he submitted he believed that he deserved an honorable discharge because, when he first joined the military, he was motivated, proud to serve his country, and ready to go.  He never got in any kind of trouble until he deployed with E Company, 3rd Battalion, 25th Aviation Regiment, 25th Combat Aviation Brigade, 25th Infantry Division.  He noted he was suffering from PTSD and started to do things that he couldn’t remember.  The doctor recommended restricting his access to weapons; however, his command failed to follow the doctor’s advice.  

14.  In his statement, he also contended his doctor recommended he be medically separated.  Instead, his chain of command imposed punishment upon him.  When he was serving in Iraq, his unit denied him medical attention because it did not fit their schedule.  He contends he was told on several occasions that he had to suck up whatever medical problem he had and to Soldier on.  He was also told to wait until the unit got back from Iraq so he could receive help.  

15.  He stated that in spite of his many medical issues, he was being abused, humiliated, and harassed by his own chain of command which was supposed to take good care of him, especially in a war zone.  He came to America to find a better life, and was hoping to find that in the Army.  He requested to be granted an honorable discharge.


16.  On 23 July 2007, the defense counsel for the applicant submitted a memorandum on his behalf.  This memorandum states in pertinent part:

	a.  In her entire time as a defense counsel she had never submitted a memorandum on behalf of a client being administratively separated.  The circumstances surrounding the complete and utter abandonment of the applicant compelled her to do so.

	b.  She requested an investigation under the provisions of Army Regulation 15-6 (Investigations) be opened to inquire into the alleged mistreatment he suffered by his chain of command.

	c.  She stated, while deployed to Iraq in support of the Global War on Terrorism, the applicant was tortured and abandoned by the very people appointed to protect him.  He was forced to sleep in the middle of an airfield next to a gas operated generator for months on end and was told by his chain of command that the reason was because the Army had no place for him to stay. No other person slept in the airfield.  He was given a cot with no linen, and most notably he was not even allowed to wear any protective equipment.  

	d.  He was also forced to clean dirty port-a-potties with nothing more than window cleaner and paper towels.  This was done despite the fact that all port-a-potties were cleaned by contractors.  The list of heinous acts goes on, and it was abundantly clear that his commander, an Army captain, was fully aware of this.

	e.  He had been diagnosed with PTSD and Anxiety Disorder and had been hospitalized for both.  He was also on a very limiting profile due to a hand and hip injury sustained in Iraq.  Despite repeated medical advice to the contrary, his chain of command continually found ways to violate it.  An example of the violation was requiring him to fill sand bags on the North Shore as “corrective training” for being late to a formation. 

	f.  He had suffered additional injuries proximately caused by the continual violation of his profile.  While it is well settled that a profile is a recommendation, the repercussions of knowingly violating this professional medical advice fall upon the command.

	g.  She ended her memorandum by stating, "We are in the business of taking care of Soldiers, not abandoning them.  The applicant deserves an Honorable discharge for his service to his Country and as a sign that his torture will not be condoned.  The intolerable acts by both his previous and present command 


deserve to be formally investigated.  We as American Soldiers cannot abide the torture of those of our brothers who wear the same uniform, and bleed the same blood." 

17.  On 25 July 2007, his immediate commander recommended he be separated from the military under the provisions of Army Regulation 635-200, Chapter 5-17, due to his previous diagnosis of Anxiety Disorder, and that he receive a less than favorable characterization of service.  

18.  On 27 July 2007, the separation authority approved the recommendation of separation under the provisions of Army Regulation 635-200, Chapter 5-17 for Other Physical or Mental Disorders and directed that the applicant be issued a General, Under Honorable Conditions discharge.

19.  His voided DD Form 214 shows he was discharged on 15 August 2007 after the completion of 1 year, 6 months, and 22 days of net active service.  This form also contains the following entries:

* Item 24 (Character of Service) – Under Honorable Conditions (General)
* Item 25 (Separation Authority) – Army Regulation 635-200, Paragraph 5-17
* Item 26 (Separation Code) – JFV
* Item 28 (Narrative Reason for Separation) – Condition, Not a Disability 

20.  He applied to the ADRB on 23 April 2008 for an upgrade of his character of service.  The ADRB determined that the requested relief was warranted, and voted to grant full relief.  The ADRB also determined that the reason for discharge was proper and equitable and voted not to change it.  On 3 February 2009, his character of service was upgraded to fully honorable. 

21.  His reissued DD Form 214 shows that item 24 was changed to honorable.  Items 25, 26 and 28 remained unchanged. 
 
22.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.  Paragraph 5-17 specifically provides that Soldiers may be separated on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty.  Such conditions may include, but are not limited to – Chronic Airsickness; Chronic Seasickness; Enuresis, Sleepwalking; Dyslexia; Severe Nightmares; Claustrophobia; and other disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier's ability to effectively perform military duties are significantly impaired.

23.  Paragraph 5-17 of Army Regulation 635-200 further indicates that when a commander determines that a Soldier has a physical or mental condition that potentially interferes with assignment to or performance of duty, the commander will refer the Soldier for a medical examination and/or mental status evaluation.
24.  Army Regulation 635-5 (Separations Document) establishes the standardized policy for preparing and distributing the DD Form 214.  In pertinent part, it directs that the regulatory authority authorizing the separation will be entered in item 25 of the DD Form 214.  Item 28 will contain the narrative reason for separation, as shown in Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) based on the regulatory authority.

25.  Army Regulation 635-5-1 prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the separation program designators to be used for these stated reasons.  The regulation shows that the SPD code “JFV” as shown on the applicant’s DD Form 214 specifies the narrative reason for discharge as “Condition, Not a Disability” and that the authority for discharge under this separation program designator is “AR 635-200, para 5-17.”

DISCUSSION AND CONCLUSIONS:

1.  He contends that an administrative error occurred which ultimately changed the narrative reason for his discharge from disability to not a disability.  

2.  Army Regulation 635-200 states that Soldiers may be separated on the basis of other physical or mental conditions not amounting to disability.  Evidence shows he was hospitalized and treated for a mental disorder.  A civilian doctor diagnosed him with PTSD; however, the doctor did not document any of the criteria for making a diagnosis of PTSD; i.e., a traumatic event, hypervigilance, intrusive thoughts related to the traumatic event, or avoidance behavior (with the exception of desertion).  

3.  The doctor stated unequivocally that the applicant's symptoms existed prior to deployment and had nothing to do with combat, only that the stresses of adjusting to ordinary military life was sufficient to cause mood instability and disturbances of the thought process.  However, while fear of combat might make the applicant unsuitable for military service, it should have little effect on his social and industrial adaptability rating as a civilian.

4.  Medical records also show he was diagnosed with an anxiety disorder while on active duty, and this was the condition that warranted separation under the provisions of paragraph 5-17 of Army Regulation 635-200.

5.  Evidence shows that based on these diagnoses, he was properly and equitably discharged in accordance Army Regulation 635-200, Chapter 5-17.  He was never separated for disability.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

6.  His administrative separation was in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge and reason for separation were appropriate considering all the facts of the case.

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)                                         AR20100023710





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ABCMR Record of Proceedings (cont)                                         AR20100023710



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