IN THE CASE OF:	  

		BOARD DATE:	  27 July 2011

		DOCKET NUMBER:  AR20100024582 


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 show he was medically discharged for disability instead of honorably discharged by reason of a "Personality Disorder." 

2.  He states he was not afforded counseling after discharge from the hospital nor prior to discharge from the Army.  He also states he was not afforded enough time to see if he would overcome any deficiencies according to the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 5-13.  He concludes that he was diagnosed with a medical condition that he did not receive treatment for and by being discharged administratively, he was denied future benefits which may have been available to assist him.

3.  He provides no additional 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 record shows he enlisted in the Regular Army on 2 April 1986.
Upon completion of initial entry training he was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade he attained while serving on active duty was private (PV2)/E-2.  

3.  On 16 October 1986, he was admitted to Tripler Army Medical Center (TAMC), Oahu, HI after he ingested an overdose of anti-inflammatory agents in an attempt to commit suicide.   

4.  On 22 October 1986, he underwent a mental status evaluation at TAMC.  The military psychiatrist found him to have had a normal behavior, fully alert and oriented with clear thinking and normal thought content, but with a labile mood.  The psychiatrist opined he had the capacity to understand and participate in proceedings.  He was diagnosed with mixed personality disorder which was consistent with administrative separation under the provisions of chapter 5 of Army Regulation 635-200 and represented a lifelong pattern of behavior.  The military psychiatrist cleared him for any administrative actions deemed appropriate by his command.

5.  On 28 October 1986, the applicant's immediate commander notified the applicant of her intent to initiate separation action against him based upon him being diagnosed as having a personality disorder which is not correctable by rehabilitation or hospitalization.  The commander informed the applicant that he was entitled to and must undergo a complete medical examination and mental evaluation and noted that such action had already been taken.  The commander advised the applicant that in regard to this separation action he had the right to:

	a.  Consult with either a provided military consulting legal counsel or with civilian counsel retained at his own expense.

	b.  To submit statements in his own behalf.

	c.  To obtain copies of documents that would be sent to the separation authority supporting the proposed separation.

	d.  To waive the above rights in writing.  (Failure to respond within 7 duty days would constitute a waiver of the above rights.)

	e.  To withdraw his waiver of rights listed above at any time prior to the date the separation authority ordered, directed or approved the separation.

6.  On 28 October 1986, the applicant acknowledged receipt of the separation notification memorandum and subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  He indicated he understood that as the result of this separation the least favorable characterization of service he could receive was an honorable discharge.  He declined to submit statements in his own behalf and waived his right to counsulting counsel and/or to consult with a civilian counsel at no expense to the government.

7.  On 28 October 1986, the applicant's immediate commander initiated separation action against him under the provisions of Army Regulation 635-200 by reason of his diagnosed condition of mixed personality disorder.  The commander recommended the applicant receive an honorable discharge.

8.  On 28 October 1986, the applicant signed a statement wherein he indicated his understanding that he was not required to undergo a medical examination for separation from active duty.  He further understood that if he elected not to undergo a separation examination, his medical records would be reviewed by a physician at the appropriate medical treatment facility; and if the review indicated an examination should be done, he would be scheduled for an examination on the results of the review.  He declined a separation medical examination and following a review of his medical records a physician's assistant determined there had been no significant change in the applicant's health since his recent examination.

9.  On 6 November 1986, the separation authority approved the applicant's discharge with an honorable characterization of service.  The separation authority also determined it was evident from the diagnosis of a physician trained in psychiatry that the applicant had no potential for further service under conditions and mobilization and that he was unsuitable for transfer to the Individual Ready Reserve.

10.  On 19 November 1986, the applicant once again signed a statement wherein he indicated his understanding that he was not required to undergo a medical examination for separation from active duty.  He further understood that if he elected not to undergo a separation examination, his medical records would be reviewed by a physician at the appropriate medical treatment facility; and if the 
review indicated an examination should be done, he would be scheduled for an examination on the results of the review.  He indicated he did not desire a separation medical examination.

11.  His DD Form 214 shows he was honorably discharged on 19 November 1986 under the provisions of Army Regulation 635-200, paragraph 5-13, based on a personality disorder, with the separation code of "JFX."  This form also shows he completed 7 months and 18 days of net active service during this period.

12.  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 personality disorder, 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 Soldiers ability to perform duty.  The regulation also directs that commanders will not take action prescribed in this chapter in lieu of disciplinary action, requires that the diagnosis conclude the disorder is so severe that the Soldier’s ability to function in the military environment is significantly impaired, and states that separation for personality disorder is not appropriate when separation is warranted under chapter 4, 5, 7, 9, 10, 11, 13, 14, or 15; Army Regulation 604-10 or Army Regulation 635-40.

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  It provides for Medical Evaluation Boards (MEBs) 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 Army Regulation 40-501.

14.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the Physical Evaluation Board (PEB) rates all disabilities using the Veteran's Affairs Schedule for Rating Disabilities (VASRD).  This regulation also provides that personality disorders render an individual administratively unfit rather than unfit because of physical illness or medical disability, but may be the basis for administrative separation if recurrent and causing interference with military duty.

15.  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 at least a
30 percent (%) disability rating percentage.  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%.

16.  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 code to be entered on the DD Form 214. It identifies the SPD of "JFX" as the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of Army Regulation 635-200, paragraph 5-17, based on a mixed personality disorder.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DD Form 214 should be corrected to show he was medically discharged for disability instead of honorably discharged by reason of a "Personality Disorder."

2.  The evidence of record shows he was hospitalized at inpatient psychiatry for safety concerns following a suicide attempt.  He underwent a mental status evaluation that diagnosed him as having a mixed personality disorder and a labile mood which was consistent with administrative separation under the provisions of chapter 5 of Army Regulation 635-200 and represented a lifelong pattern of behavior.  There is no evidence in the available records and he did not provide sufficient evidence that shows his condition was duty related.  In addition, Army Regulation 40-501 provides for the administrative separation of Soldiers diagnosed with personality disorders.

3.  Accordingly, his chain of command initiated separation action against him under the provisions of Army Regulation 635-200, paragraph 5-13.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  

4.  He attests he was not afforded counseling or treatment after discharge from the hospital nor prior to discharge from the Army and that his administrative discharge resulted in him being denied future benefits which may have been available to assist him.  However, evidence clearly shows that following his initial consult with legal counsel he declined further consultation with either military or civilian counsel or to undergo a medical separation examination on at least two occasions; therefore, his allegations are unfounded.

5.  In view of the foregoing, he is not entitled to the 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)                                         AR20100024582





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ABCMR Record of Proceedings (cont)                                         AR20100024582



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