IN THE CASE OF:	  

		BOARD DATE:	 3 April 2012 

		DOCKET NUMBER:  AR20110003975 


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, in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active duty) by changing the type, authority and narrative reason for separation from discharge under the provisions of Army Regulation 
635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17d by reason of "Condition, Not a Disability" to retired under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), paragraph 4-24b(3) by reason of "Disability, Aggravation."  He also requests the benefits that go along with this status.

2.  The applicant defers to counsel.

3.  The applicant provides a 14-page appeal memorandum and associated supporting documentation prepared and assembled by his counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the Army Board for Correction of Military Records (ABCMR) overturn the decision to discharge the applicant and grant him medical retirement and the benefits associated therewith.

2.  Counsel states the applicant has suffered and continues to suffer from Post-Traumatic Stress Disorder (PTSD), anxiety, depression, stress, sleep deprivation and numerous physical ailments due to a sexual assault and injuries he suffered in connection with his service in the military.  Counsel attests neither the sexual assault nor the resulting medical conditions were properly addressed by the military at the time of the applicant's separation.  In view of the foregoing, counsel contends by discharging the applicant pursuant to Army Regulation 635-200, paragraph 5-17, his chain of command failed to follow the statutory requirements for separation.  As such, his separation is both unjust and in error.

3.  Counsel provides:

* Exhibit A, an Enlisted Record Brief, dated  3 December 2009
* Exhibit B, a letter from the U.S. Army Criminal Investigation Command, U.S. Crime Records Center, Fort Belvoir, VA
* Exhibit C, a DD Form 4/1 (Enlistment/Reenlistment Document Armed Forces of the United States)
* Exhibit D, a DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Exhibit E, Standard Form 600 (Health Record - Chronological Record of Medical Care), dated 22 December 2008
* Exhibit F, a copy of the applicant's administrative separation action packet, initiated on 10 March 2010
* Exhibit G, a copy of the applicant's administrative separation action packet, initiated on 22 December 2009
* Exhibit H, an article on mental health and Adjustment Disorder extracted from the WebMD internet website (www.webmd.com)
* Exhibit I, Report to Congress on Administrative Separations Based on Personality Disorder - Fiscal Years 2002 through 2007
* Exhibit J, a DA Form 4856 (Developmental Counseling Form), dated 25 February 2010
* Exhibit K, a letter from the Commanding General of Seventh U.S. Army Joint Multinational Training Command, dated 5 April 2010
* Exhibit L, a memorandum from the Commander, U.S. Army Garrison Grafenwoehr, Germany, dated 24 February 2010
* Exhibit M, an extract from the Department of Defense Financial Management Regulation Volume 7A, Chapter 10
* Exhibit N, a Legal Review of the applicant's proposed separation packet, dated 11 March 2010

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the U.S. Air Force Reserve on 26 March 2002.  On 4 October 2002, he received an entry level separation as a result of entry level performance and conduct.  His 6 months and 9 days of active duty service were uncharacterized.

2.  On 11 July 2005, he enlisted in the Delaware Army National Guard (DEARNG).  On 10 July 2006, he was released from the DEARNG upon the expiration of his active status commitment in the Selected Reserve and transferred to the U.S. Army Reserve Control Group (Annual Training) with an honorable characterization of service.  He was not credited with any additional active duty service during this period of time.

3.  On 24 August 2006, he enlisted in the Regular Army for a period of 3 years.  Upon completion of training he was awarded military occupational specialty 89B (Ammunition Specialist) and was reassigned to Korea.  On 16 November 2007, while serving in Korea, he reenlisted under the overseas assignment option for Europe and was subsequently assigned for duty in Grafenwoehr, Germany.  The applicant's record is void of documentation which shows his specific periods of service in Korea and Germany.  The highest rank/grade he attained while serving on active duty was specialist/E-4.

4.  His record contains a DA Form 3822-R (Report of Mental Status Evaluation), rendered by a psychiatrist at the mental health clinic located in Vilseck, Germany, on 25 April 2008, as the result of a command-directed mental health evaluation.  His company commander had expressed concerns about the applicant's ability to perform his job as he had difficulty learning many routine military tasks to include how to safely and properly operate military equipment, including his assigned weapon.  The commander and other members of the chain of command were concerned that the applicant may have had difficulties with attention, or retaining knowledge, or perhaps even with some confusion and/or paranoid thoughts.  The examining psychiatrist noted the following:

* his behavior was normal
* he was fully alert
* he was fully oriented
* his mood or affect was unremarkable
* he needed further examination
* he reported for his initial appointment on 14 April 2008 with a memo he had typed explaining his belief that this evaluation was harassment and his attorney had instructed him not to comment during the evaluation
* the examining psychiatrist explained in general terms the purpose of a mental health evaluation and terminated the appointment
* on 21 April 2008, the applicant returned escorted by a noncommissioned officer (NCO)
* he presented a memo stating "the mental evaluation that is being conducted is in violation of law and policy, in other words it is illegal"
* the memo also stated his lawyer wanted the psychiatrist to contact him
* the applicant was released, but the psychiatrist spoke with his section sergeant who shared the following concerns and observations:

* he had been unable to learn the safe operation of his weapon
* he appeared to be an eager and attentive student during classroom instruction, but he was unable to translate this into hands-on success
* he was unable to drive a military vehicle down a straight road with night vision goggles, he drove off the road and into a ditch
* he was constantly taking notes even in social situations and in the barracks
* the other Soldiers were concerned he was taking these notes and complaining about them
* in spite of brief periods of service in the Air Force and ARNG, he lacked awareness of many military procedures and customs that were taught in Army Basic Training
* given his symptoms, the psychiatrist could not approve him to handle weapons, ammunition, or to operate any piece of equipment that might prove dangerous to himself or others
* in order to reverse this decision the applicant would have to undergo a complete mental health evaluation
* the chain of command should contact the legal authorities to address the applicant's legal concerns and the evaluation should not proceed without explicit approval of the legal advisors
* the applicant would continue to receive therapeutic treatment from his psychiatrist and therapist
* No diagnosis, treatment recommendations, or administrative recommendations could be provided until the applicant completed the prescribed evaluation

5.  On 11 June 2008, the applicant accepted punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for, without authority, failing to go at the time prescribed to his place of duty.

6.  His record contains a DA Form 3822-R rendered by a clinical psychologist at the mental health clinic located in Vilseck, Germany, on 10 July 2008, as the result of a command-directed study and treatment.  The evaluation included a clinical interview, behavioral observations, Command consultation, and review of medical and/or mental health records.  The examining psychologist noted the following:

* his behavior was normal
* he was fully alert and oriented
* his mood or affect was unremarkable
* his thinking process was clear
* his thought content was normal
* his memory was good
* he had the mental capacity to understand and participate in the proceedings
* he met the retention requirements of chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness)
* there was no evidence of an emotional or mental condition of sufficient severity to warrant disposition through medical channels
* there was no evidence of a psychiatric condition which would prevent him from participation in any administrative or judicial proceedings
* his pattern of failing to adapt to stressors inherent to the military may persist irrespective of future duty assignments or environments

7.  This form also shows the examining psychologist recommended the applicant's command consider continued rehabilitation via NCO mentoring or administrative separation under chapter 13 of Army Regulation 635-200 if any of the following were evident and persisted between the applicant's work performance and the unit mission:

* The applicant would not develop sufficiently to participate satisfactorily in further training and/or become a satisfactory Soldier
* The seriousness of the circumstances was such that the applicant's retention would have an adverse impact on military discipline, good order, or morale
* The applicant would likely be a disruptive influence in duty assignments
* The circumstances forming the basis for initiation of separation proceedings would likely continue or recur
* The applicant's ability to perform duties was unlikely
* The applicant's potential for advancement or leadership was unlikely

8.  U.S. Army Garrison Grafenwoehr Orders 270-98, dated 26 September 2008, show the applicant was ordered to deploy on a Temporary Change of Station to the Central Command Area of Operation in support of Operation Enduring Freedom for a period not to exceed 455 days with a proceed date of on/or about 8 November 2008.

9.  A Standard Form 600 shows the applicant was medically evacuated to the Regional Medical Center located in Landstuhl, Germany on 22 December 2008 in order to determine the root cause of his apparent condition of hypersomnia (a disorder characterized by excessive amounts of sleepiness).  He was initially seen by the Pulmonology clinic and then referred to the Psychiatric clinic where he underwent a comprehensive psychiatric examination in order to evaluate his current medication therapy and to determine whether he was suffering from PTSD and/or whether his conditions were work-related.

10.  The applicant informed the examining psychiatrist that he was experiencing a lot of stress over his command not understanding his problem.  The applicant also reported he had been having a lot of difficulty functioning due to being very confused and dazed upon awakening.  He had been taking Wellbutrin and Ambien for about 1.5 years and initially started these medications and attending psychotherapy after having depressive symptoms following being sexually assaulted by a fellow service member while serving in Korea.  The applicant's symptoms had improved, but he had lived with the side effects of hypersomnia for about 1.5 years.  The applicant stated his command had been trying to discipline him into complying with waking up on time, but he awoke so confused that it took him about an hour to become alert and oriented.  Two weeks prior, he had been seen by mental health specialist while deployed where he had been taken off the Ambien and had been switched from Wellbutrin to Celexa 2 days prior.  The psychiatrist noted the applicant denied having seen a mental health provider prior to the sexual assault in Korea, a history of hallucinations or delusions, and a history of suicidal or homicidal thoughts.

11.  The examining psychiatrist opined the applicant was suffering from PTSD compounded by the stress of deployment and recommended he remain on his current medications, continue therapy, undergo a sleep study, and return for a follow-up visit.       

12.  The applicant's record contains DA Forms 4856 which show he was counseled on the following dates for the reasons stated:

	a.  On 10 April 2009, he was counseled for changing a command referred appointment with mental health without consulting his chain of command.  He was told that due to his mental and physical well-being, all of his appointments needed to be kept and only changed by his supervisor, first sergeant, or commander.  He was advised that continued conduct of this nature could result in initiation of a bar to reenlistment, administrative action to include his involuntary separation from the service, and/or punitive action.

	b.  On 10 April 2009, he was counseled for, without authority, absenting himself from formation at the company motor pool.  He was advised that continued conduct of this nature could result in initiation of a bar to reenlistment, administrative action to include involuntary separation from the service, and/or punitive action.

13.  His record contains a DA Form 3822-R rendered at the Grafenwoehr Behavioral Health Clinic, on 12 November 2009, as the result of the initiation of a request for the applicant to be discharged for the good of the service by his chain of command.  The evaluation included a clinical interview, behavioral observations, Command consultation, and review of medical and/or mental health records.  The examiner noted the following:

* his behavior was passive
* he was fully alert and oriented
* his mood or affect was flat
* his thinking process was loosely connected
* his thought content was normal
* his memory was good
* he had the mental capacity to understand and participate in the proceedings
* he met the retention requirements of chapter 3 of Army Regulation 40-501
* he denied any current or recent suicidal or homicidal ideations, plans, or intentions
* there was no evidence of a psychiatric condition which would prevent him from participation in any legal or administrative actions
* he was mentally responsible for his behavior, could distinguish right from wrong, and possessed sufficient mental capacity to understand and participate in administrative or judicial proceedings
* there was no psychiatric condition which would prevent him from participation in regular military activities
* he did not meet the requirements for a Medical Evaluation Board (MEB)
* there was no evidence of an emotional or mental condition of sufficient severity to warrant disposition through medical channels
* he did not meet Diagnostic and Statistical Manual, Fourth Edition (DSM-IV) criteria for PTSD or mild Traumatic Brain Injury
* he did meet the criteria for other DSM-IV conditions which made him unsuitable for continued active duty service
* his conditions were chronic in nature and unlikely to improve through treatment
* if he remained on active duty, he would likely require substantial leadership and administrative support resources
* based upon this evaluation, the applicant was qualified to be separated under the provisions of paragraph 5-17 of Army Regulation 635-200



14.  The applicant's record contains a DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members), dated 20 October 2009, which shows he received preseparation counseling in preparation for separating involuntarily due to a medical condition.

15.  The applicant's record contains a DD Form 2807-1 (Report of Medical History) and a DD Form 2808 (Report of Medical Examination) which show he underwent a preseparation medical examination on 17 November 2009.  The DD Form 2807-1 shows the applicant listed "PTSD/anxiety/hypersomnia" amongst the conditions from which he suffered or had suffered.

16.  The Clinical Evaluation portion of the DD Form 2808 shows the examining physician indicated the applicant's psychiatric condition was abnormal and listed the abnormalities as "PTSD, depression, anxiety."  Item 77 (Summary of Defects and Diagnoses) shows the physician annotated sleep apnea and the fact that the applicant wears eyeglasses.  The physician also recommended that the applicant continue receiving mental health counseling and that he undergo a sleep study. 

17.  On 23 November 2009, the applicant was suspended from receiving favorable personnel actions as a result of a field-initiated elimination action.

18.  The applicant's counsel provides a letter addressed to him from U.S. Army Criminal Investigation Command, U.S. Crime Records Center, Fort Belvoir, VA, dated 3 December 2009, which shows Report of Investigation (ROI) 0005-2XXX-CID5XX-2XXXX-6F8 had determined the applicant was a victim of an unspecified crime that was the subject of the investigation.  The ROI was cited, but not enclosed with the applicant's application.

19.  On 22 December 2009, the applicant's company commander notified him he was initiating action to separate him from the Army with an honorable discharge under the provisions of Army Regulation 635-200, paragraph 5-17, based upon his medical diagnosis of Adjustment Disorder, Depression, Anxiety, and Occupational Problems.  The commander stated the applicant demonstrated an inability to assume personal responsibility for his duties as a Soldier and his conditions were of an enduring nature and available treatments would not be enough to ensure he met Army standards.

20.  The applicant was advised of his rights and the impact of the discharge.  He was advised by consulting legal counsel of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, paragraph 
5-17, for other designated physical or mental conditions, and its effect of the rights available to him and the effect of any action taken by him in waiving any of his rights.
21.  On 22 December 2009, the applicant acknowledged receipt of the notification and his right to consult with counsel.  Having been advised by counsel, he waived his rights to have his case considered by or to appear in person before an administrative board.  He indicated he would submit a statement in his own behalf and be represented by counsel.  The applicant stated he was a victim of a sexual assault for which an unrestricted report was filed in the past and that he believed this separation action was a direct or indirect result of the sexual assault itself or of the filing of the unrestricted report.  No additional statements from or on behalf of the applicant are included with his separation packet.

22.  On 22 December 2009, the applicant's company commander recommended that he be separated from the Army with an honorable discharge under the provisions of Army Regulation 635-200, paragraph 5-17.  The commander stated the specific, factual reasons for this action were based upon his medical diagnosis of an Adjustment Disorder, Depression, Anxiety, and Occupational Problems.  He further stated the applicant's conditions were of an enduring nature and available treatments would not be enough to ensure he met Army standards.  Additionally, his disciplinary history included receipt of a Summarized Article 15 and numerous adverse counseling sessions.  The commander opined the applicant possessed no potential for useful service under conditions of full mobilization, and therefore he should be discharged.

23.  The intermediate commander reviewed the proposed discharge action and recommended approval of the separation action with an honorable discharge.

24.  The applicant's record contains (and counsel also provides) a memorandum rendered by Commander, U.S. Army Garrison Grafenwoehr, dated 24 February 2010, which shows the previously-approved separation action pertaining to the applicant, dated 9 February 2010, was revoked.  The commander ordered all out-processing of the applicant to stop and all action necessary to re-inprocess to be completed.

25.  The applicant's record contains (and counsel also provides) a DA Form 4856, dated 25 February 2010, which shows the applicant was counseled by his company commander to inform him that he had been diagnosed with "5-17a(9) 'other disorder' per Army Regulation 635-200 and Army Regulation 40-501."  He informed the applicant that as his commander, he was required to give the applicant adequate time to overcome his problems adjusting to military life.  The commander noted the applicant had been counseled by his previous commander in November 2009 for the same reason.  The commander informed the applicant he did not believe the applicant had properly adjusted since that counseling and advised him that if he could not properly adapt to military life he would be separated from the Army under the provisions of paragraph 5-17a(9) "other disorder" per Army Regulation 635-200 and Army Regulation 40-501.  The commander also advised the applicant that if he felt the commander had treated him unfairly, he could contact a chaplain, legal assistance, or the local Inspector General and provided him their telephone numbers.

26.  The applicant indicated he agreed with the commander's counseling, but elected to waive the 2-week time period.  He stated it was his belief the previous company commander had not counseled him per chapter 5-17 as stated in his lawyer's brief.  He further stated 2 weeks was not enough time and he had exhausted himself in this process.  The applicant initialed and authenticated this statement with his signature.

27.  In an attached statement, he attested he was not properly counseled by his previous company commander.  He stated the reason he waived the 2-week time period was it was not enough time to cure his ailments which amounted to a disability.  He contended he had followed the regulation (made some mistakes) and at that time he was mentally and physically exhausted with the process.  He added that since the Army did not find his impairment to be reviewable by an MEB, the Department of Veterans Affairs (VA) would address those medical problems.  He further stated his lawyer's brief and rebuttal to the chapter action asked for an MEB for his traumatic experience, but the VA would review his medical file.  Due to the stress caused by this situation, his joints were sore and he had a roaring headache.  He stated his family and lawyer were very concerned about him and his well-being.  He concluded by stating if discharge with an honorable characterization of service was an option, he would take it.

28.  On 10 March 2010, the applicant's company commander notified him he was initiating action to separate him from the Army with an honorable discharge under the provisions of Army Regulation 635-200, paragraph 5-17, for Other Designated Physical or Mental Conditions.  The commander stated his reasons for his proposed action were based upon the applicant's medical diagnosis of Adjustment Disorder, Depression, Anxiety, and Occupational Problems.  The commander stated the applicant demonstrated an inability to assume personal responsibility for his actions as a Soldier and to complete his basic duties.  He added the applicant's conditions were of an enduring nature and available treatments had not and would not be enough to ensure he met Army standards.  The commander noted the applicant had been participating in behavioral health services at his current location since 23 July 2009 and had also participated in behavioral health treatment at his previous duty station.  He stated the applicant's behavioral health and medical providers had diagnosed and treated him for an Adjustment Disorder, Depression, Anxiety, Occupational Problems, and a variety of stress related medical conditions.  The applicant had consistently demonstrated an inability to assume an appropriate level of personal responsibility for executing his duties as a Soldier and for the consequences of his performance.  Additionally, his disciplinary history included his receipt of a Summarized Article 15 and he had been repeatedly counseled from February 2008 through February 2010 for his inability to complete his duties, for misconduct, and to inform him about corrective measures and expected performance.  The commander concluded the applicant had been given ample opportunity to overcome his deficiencies, but he had failed.  The applicant was advised that he was required to undergo a complete medical examination and mental status evaluation in accordance with Army Regulation 40-501.

29.  The applicant was advised of his rights and the impact of the discharge.  He was advised by consulting legal counsel of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, paragraph 
5-17, for other designated physical or mental conditions, and its effect of the rights available to him and the effect of any action taken by him in waiving any of his rights.  

30.  On 10 March 2010, the applicant acknowledged receipt of the notification and his right to consult with counsel.  The applicant stated he was not a victim of a sexual assault for which an unrestricted report was filed in the past 24 months and that he did not believe this separation action was a direct or indirect result of the sexual assault itself or of the filing of the unrestricted report.  

31.  On 11 March 2010, having been advised by counsel, he waived his rights to have his case considered by or to appear in person before an administrative board.  He indicated he would not submit any statements in his own behalf, but did elect to be represented by counsel.  No additional statements from or on behalf of the applicant are included with his separation packet.

32.  On 11 March 2010, the applicant's company commander recommended that he be separated from the Army with an honorable discharge under the provisions of Army Regulation 635-200, paragraph 5-17.  The commander stated the specific, factual reasons for this action were based upon his medical diagnosis of an Adjustment Disorder, Depression, Anxiety, and Occupational Problems.  He further stated the applicant demonstrated an inability to assume personal responsibility for his duties as a Soldier and that his conditions were of an enduring nature and available treatments would not be enough to ensure he met Army standards.  Additionally, his disciplinary history included receipt of a Summarized Article 15 and numerous adverse counseling sessions.  The commander opined the applicant possessed no potential for useful service under conditions of full mobilization; therefore, he should be discharged.

33.  On 15 March 2010, a legal review of the applicant's separation packet was conducted and it was determined to be legally sufficient.  On 16 March 2010, the separation authority approved the request and directed the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 5-17, Other Designated Physical or Mental Conditions, with the issuance of an Honorable Discharge Certificate, without a transfer to the Individual Ready Reserve.

34.  On 26 March 2010, he was discharged accordingly.  His DD Form 214 shows:

* his service was characterized as honorable
* he was discharged under the provisions of Army Regulation 635-200, paragraph 5-17 with a Separation Program Designator (SPD) code of JFV and an RE code of 3
* his narrative reason for separation was "Condition, Not a Disability"

35.  The applicant's record contains (and counsel also provides) a letter sent to the applicant's counsel from the Commanding General (CG), Seventh U.S. Army Joint Multinational Training Command, dated 5 April 2010, in response to a letter from the lawyer concerning the applicant.  The CG informed the lawyer the applicant was pending an administrative separation when the lawyer's letter was received.  In order to ensure the applicant was provided complete due process, the special court-martial convening authority rescinded his separation order on 24 February 2010.  Medical authorities reconfirmed the applicant's diagnosis; thus the command reinitiated the separation pursuant to Army Regulation
635-200, paragraph 5-17a(9).  The applicant had numerous counseling statements demonstrating the efforts his command made to help him overcome deficiencies.  The applicant also engaged in minor misconduct consistent with his condition.  His command counseled him and provided him an opportunity to overcome his deficiencies; however, the applicant was unable to comply.  The CG stated the applicant fit the criteria for separation pursuant to Army Regulation 635-200, paragraph 5-17a(9), disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier's ability to effectively perform military duties was significantly impaired.  The CG added that this type of separation required close scrutiny, and the command had complied with the requirements.  He concluded that the applicant was also given another opportunity to seek counsel and afforded all due process required by policy and regulation.

36.  The applicant's civilian counsel provides an appeal, dated 15 February 2011, wherein they contend by discharging the applicant pursuant to Army Regulation 635-200, chapter 5-17(9), the command failed to follow statutory requirements for separation, and as such, his separation is both unjust and in error.  Counsel's specific contentions are as follows:

	a.  As a result of being sexually assaulted [molested] by a fellow male junior enlisted Soldier, the applicant suffers from PTSD, depression, stress, anxiety, and sleep deprivation.

	b.  Shortly after deploying to Iraq, the applicant was medically evacuated to Landstuhl Regional Medical Center, where he underwent multiple evaluations and was diagnosed with PTSD, fatigue, and depression and was hospitalized for 57 days.  It was opined that his medical conditions were a direct result of the sexual assault and would require ongoing treatment to correct his ability to function properly.

	c.  The applicant's separation packet stated the reason for the proposed action was that the applicant had "been diagnosed with an Adjustment Disorder, Depression, Anxiety, and Occupational Problems."

	d.  On 23 March 2010, the applicant was separated with a narrative reason for discharge of "condition, not a disability" and received an SPD code of "JFV" corroborating the narrative reason for discharge.  However, statements contained in his separation packet indicate that the command was trying to separate him on the basis of "mental condition" or "personality disorder."  It is important that the proper narrative reason of discharge be applied because there are heightened criteria that apply to administrative separations on the basis of "mental conditions" and "personality disorders."

	e.  The diagnosis of an Adjustment Disorder is inappropriate in the applicant's case because the only psychiatric diagnoses included in his separation documentation were three mental status evaluations contained in the December 2009 packet which does not mention an Adjustment Disorder, Depression, Anxiety or Occupational Problems.

	f.  According to Army Regulation 635-200, personality disorders, by definition, are a deeply-ingrained maladaptive pattern of behavior of long duration that interferes with the Soldier's ability to perform duty.  As defined by the DSM-IV, personality disorders are enduring maladaptive patters of behavior and cognition that led to clinically significant distress or impairment in social, occupational, or other important areas of functioning.  PTSD on the other hand is a severe anxiety disorder that occurs in the aftermath of a traumatic event that causes psychological trauma.  The distinction between an Adjustment Disorder, Personality Disorder, and PTSD is of utmost importance as the criteria set forth in each regulation varies greatly.
	g.  The applicant's separation on the basis of Army Regulation 635-200, chapter 5-17(9) was merely a false pretense whenhe should have been processed through the Physical Disability Evaluation System (PDES) to determine the extent of his service-connected PTSD.  The main difference between adjustment disorders and personality disorders/PTSD is the duration of the symptoms.   Adjustment disorders are temporary whereas personality disorders and PTSD are of an enduring nature.  As diagnosed by the command, the conditions from which the applicant suffers are "chronic in nature and unlikely to improve" and this diagnosis was made almost 2 years prior to his eventual separation.

	h.  By statute, before a Soldier can be separated from the Army on the basis of mental condition or personality disorder, a psychiatrist with necessary and appropriate credentials must establish the diagnosis.  When a commander determines a Soldier has a mental condition that potentially interferes with performance of his/her duty, the Soldier must be recommended for a mental status evaluation, and the recommendation for separation must be supported by documentation.  Processing the separation action cannot occur until the Soldier has been formally counseled concerning his/her deficiencies and has been afforded ample time to overcome those deficiencies.  Notably, the applicant was not provided formal counseling regarding his alleged mental condition until 25 February 2010 which was 2 weeks prior to separation.  Clearly, 2 weeks is not an ample opportunity to overcome any alleged deficiencies.

	i.  If PTSD, Traumatic Brain Injury, and/or other co-morbid mental illness are significant contributing factors to a mental health diagnosis, the Soldier will be evaluated under the PDES in accordance with Army Regulation 635-40.  Army Regulation 635-200, chapter 5-17, provides that for Soldiers who have been deployed to an area designated as an imminent danger pay area the Medical Treatment Facility (MTF) Chief of Behavioral Health must review the diagnosis of a personality disorder.  Furthermore, the Office of the Surgeon General must confirm the diagnosis.  There is no indication the MTF Chief or the Office of the Surgeon General corroborated the applicant's separation action.

	j.  Administrative separation on the basis of "disorders" is only authorized if the diagnosis concludes that the condition is so severe [emphasis added] that the Soldier's ability to function effectively in the military environment is significantly impaired.  The applicant's most recent mental status evaluation fails to identify the mental condition or personality disorder he suffers from or the severity.  Without even diagnosing the particular personality disorder, the psychiatrist jumps to the conclusion that it is incurable.

	k.  The applicant was not afforded due process because the 25 February 2010 counseling statement notifies him that he has "problems adjusting to military life" yet the statement does not specify what those problems are.  He cannot be expected to correct deficiencies if he is never notified of what they are.

	l.  10 March 2010 was not the first time the command attempted to administratively separate the applicant.  They originally initiated separation action in December 2009.  However, due to numerous procedural deficiencies this separation action was rescinded.

	m.  His DD Form 214 shows his narrative reason for his discharge was "condition, not a disability."  The SPD is listed as "JFV" indicating a physical disability, and not a personality disorder or mental condition.  However, prior to separation, everything he received from his command indicated he was being separated on the basis of a mental condition or personality disorder.

	n.  The applicant has suffered anxiety from harassment and false accusations stemming from his sexual assault to include allegations that he is homosexual and that the sexual harassment never occurred.

	o.  Since enlisting, the applicant suffered a number of injuries that continue to cause him pain to include stress fractures, a hernia, fatigue, depression, sleep deprivation, and PTSD.  His PTSD is a direct result of the sexual assault he suffered in Korea.  He sought treatment for these conditions while in the service and should have been referred to an MEB due to their chronic nature.

37.  Army Regulation 635-200, paragraph 5-17, states that commanders who are special court-martial-convening authorities may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty.  A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition.  Members may be separated for physical or mental conditions not amounting to disability, which includes those members suffering from a disorder manifesting disturbances of perception, thinking, emotional control, or behavior sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired.  For Soldiers who have been deployed to an area designated as an imminent danger pay area, the diagnosis of personality disorder must be corroborated by the 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.  Medical review of the personality disorder diagnosis will consider whether PTSD, Traumatic Brain Injury (TBI), and/or other comorbid mental illness may be significant contributing factors to the diagnosis.

38.  Army Regulation 635-40 sets forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 3-1 (Standards of unfitness because of physical disability) of this regulation, in pertinent part, provided that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of his or her office, grade, rank, or rating.  The regulation states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying.  Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability.  

39.  Army Regulation 635-40, in pertinent part, provides that MEBs 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 qualification for retention based on the criteria in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to Physical Evaluation Board (PEB).

40.  Army Regulation 635-40, paragraph 4-17, provides that PEBs are established to evaluate all cases of physical disability equitably for the Soldier and the Army.  The PEB is not a statutory board.  Its findings and recommendations may be revised.  It is a fact-finding board for the following:

	a.  investigating the nature, cause, degree of severity, and probable permanency of the disability of Soldiers whose cases are referred to the board;

	b.  evaluating the physical condition of the Soldier against the physical requirements of the Soldier's particular office, grade, rank, or rating;

	c.  providing a full and fair hearing for the Soldier as required under Title 10, U.S. Code, section 1214; and

	d.  making findings and recommendations required by law to establish the eligibility of a Soldier to be separated or retired because of physical disability.
41.  Paragraph 3-36 (Adjustment Disorders) of Army Regulation 40-501 provides that situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability, but may be the basis for administrative separation if recurrent and causing interference with military duty.

42.  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.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  Accordingly, it is not unusual for the two agencies of the government, operating under different policies, to arrive at different conclusions pertaining to fitness ore to arrive at a different disability rating based on the same impairment.  Furthermore, 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.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career, while the VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.

43.  Army Regulation 635-5-1 (SPD Codes), in effect at the time of the applicant's separation, provided 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 stated that the SPD code of JFV was the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 5-17, for "Condition, Not a Disability" when a service initiated discharge is directed when a condition, not a physical or mental disability, interferes with the performance of duty.

DISCUSSION AND CONCLUSIONS:

1.  Both the applicant's and counsel's contention that the applicant's record should be corrected by overturning the discharge action pursuant to Army Regulation 635-200, paragraph 5-17 by reason of "Condition, Not a Disability" and granting him a medical retirement and the benefits associated therewith were carefully considered and determined to lack merit.

2.  Contrary to counsel's contentions, the evidence clearly shows more than one chain of command took a proactive approach towards determining the status of the applicant's mental and physical condition.  Following his sexual assault, the applicant participated in mental health counseling and treatment and continued to do so for the remainder of his period of service.  Beginning in April 2008 as a result of command referrals, and in spite of the applicant's reluctance to comply, he underwent comprehensive mental status evaluations rendered by both psychiatrists and a clinical psychologist at different mental health facilities which included clinical interviews and behavioral observations.

3.  As a result of his most recent mental status evaluation it was determined:

* he met the retention requirements of chapter 3 of Army Regulation 40-501
* there was no evidence of a psychiatric condition which would prevent him from participation in any legal or administrative actions
* he was mentally responsible for his behavior, he could distinguish right from wrong, and he possessed sufficient mental capacity to understand and participate in administrative or judicial proceedings
* there was no psychiatric condition which would prevent him from participation in regular military activities
* he did not meet the requirements for an MEB
* there was no evidence of an emotional or mental condition of sufficient severity to warrant disposition through medical channels
* he did not meet DSM-IV criteria for PTSD or mild TBI
* he did meet the criteria for other DSM-IV conditions which made him unsuitable for continued active duty service
* his conditions are chronic in nature and unlikely to improve through treatment
* if he remained on active duty, he would likely require substantial leadership and administrative support resources
* he was qualified to be separated under the provisions of paragraph 5-17 of Army Regulation 635-200

4.  Contrary to counsel's contentions the available evidence shows that, on 
22 December 2009, the applicant's company commander notified him he was initiating action to separate him from the Army with an honorable discharge under the provisions of Army Regulation 635-200, paragraph 5-17, based upon his medical diagnosis of an Adjustment Disorder, Depression, Anxiety, and Occupational Problems.  The commander stated the applicant demonstrated an inability to assume personal responsibility for his duties as a Soldier and his conditions were of an enduring nature and available treatments would not be enough to ensure he met Army standards.  The applicant was advised of his rights and the impact of the discharge.  He was advised by consulting legal counsel of the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, paragraph 5-17, for other designated physical or mental conditions, and its effect of the rights available to him and the effect of any action taken by him in waiving any of his rights.  The applicant acknowledged receipt of the notification and that he understood his right to consult with counsel.  Having been advised by counsel, he waived his rights to have his case considered by or to appear in person before an administrative board.  He indicated he would submit a statement in his own behalf and to be represented by counsel.  Subsequently, the applicant's separation action was approved and discharge orders were published on 9 February 2010.

5.  Also contrary to counsel's contention, Surgeon General's certification is not required for Soldiers who have been diagnosed with an Adjustment Disorder.

6.  On 24 February 2010, as a result of the applicant submitting an appeal through counsel, the Commander, U.S. Army Garrison Grafenwoehr revoked applicant's previously approved separation action, dated 9 February 2010.

7.  On 25 February 2010, the applicant was counseled in writing by his company commander to inform him that he had been diagnosed with "5-17a(9) 'other disorder' per Army Regulation 635-200 and Army Regulation 40-501."  He informed the applicant that as his commander, he was required to give the applicant adequate time to overcome his problems adjusting to military life.  The commander noted the applicant had been counseled by his previous commander in November 2009 for the same reason.  The commander informed the applicant he did not believe the applicant had properly adjusted since that counseling and advised him that if he could not properly adapt to military life he would be separated from the army under the provisions of paragraph 5-17a(9) "other disorder" per Army Regulation 635-200 and Army Regulation 40-501.  The commander also advised the applicant that if he felt the commander had treated him unfairly, he could contact a chaplain, legal assistance, or the local Inspector General and provided him their telephone numbers.

8.  The applicant indicated he agreed with the commander's counseling, but elected to waive the 2 week time period because that was not enough time to cure his ailments that amounted to a disability.  He added that since the Army did not find his impairment to be reviewable by an MEB, the VA would address his medical problems.  He concluded by stating if discharge with an honorable characterization of service was an option, he would take it.

9.  Evidence shows the applicant was provided complete due process, medical authorities reconfirmed his diagnosis, and as a result, the command reinitiated the separation action pursuant to Army Regulation 635-200, paragraph 5-17a(9). The applicant's company commander provided him the specific reasons for the proposed separation action and the applicant was also given another opportunity to seek counsel and afforded all due process required by policy and regulation.  The applicant had numerous counseling statements demonstrating the efforts his chain of command made to help him overcome his deficiencies.  The applicant also engaged in minor misconduct consistent with his condition.  His command counseled him and provided him an opportunity to overcome his deficiencies; however, the applicant was unable to comply.  

10.  A legal review of the applicant's separation packet was conducted and it was determined to be legally sufficient and the separation authority approved the request and directed the applicant be discharged.  On 26 March 2010, he was discharged accordingly.

11.  The evidence of record shows he was recommended and approved for separation under the provisions of Army Regulation 635-200, paragraph 5-17, by reason of "Condition, Not a Disability."  Since he was not diagnosed with a personality disorder, there was no requirement to attain the Surgeon General's certification.  The evidence also shows the applicant was assigned the appropriate SPD code of JFV at the time of discharge.

12.  The available evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.

13.  In view of the foregoing, there is no basis for granting the applicant's request.

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.
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ABCMR Record of Proceedings (cont)                                         AR20110003975



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