IN THE CASE OF:	  

		BOARD DATE:	  19 October 2011

		DOCKET NUMBER:  AR20110008318 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any). 

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that item 25 (Separation Authority) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show he was discharged in accordance with Army Regulation 635-200 (Enlisted Separations), paragraph 5-13 (Separation because of personality disorder) vice paragraph 5-17 (Other Designated Physical or Mental Conditions).

2.  He states:  

* his DD Form 214 incorrectly states that he was discharged in accordance with Army Regulation 635-200, paragraph 5-17 vice paragraph 5-13
* the separation authority for his discharge was changed 2 days prior to his discharge
* he was officially discharged due to his personality disorders 
* he was discharged due to his post-traumatic stress disorder (PTSD) with depressive disorder stemming from his service in Iraq
* he is and will continue receiving treatment and medication for the rest of his life

3.  He provided no additional documents.

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 records show he enlisted in the Regular Army on 13 August 2002.  

3.  On 23 November 2004, his immediate commander referred him for a mental health assessment.  His Report of Mental Status Evaluation shows:

* his behavior was passive
* he was fully alert and oriented
* his mood or affect was flat 
* his thinking process was clear
* his thought content was normal
* he had the mental capacity to understand and participate in separation proceedings
* he was mentally responsible
* he met regulatory retention requirements
* he was diagnosed with "Personality Disorder, not otherwise specified"

4.  On 19 January 2005, his 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 pattern of erratic and self-destructive behavior, specifically his verbalization of homicidal intentions towards a superior officer of such severity that it clearly made him unfit for continued military service.

5.  On the same date, he acknowledged receipt of the proposed action against him and indicated that he had been advised of his right to consult with counsel prior to making any election of rights.  He was also advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him waiving his rights.

6.  On 25 January 2005, 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.  

7.  On an unspecified date, his immediate and intermediate commander recommended he be separated from the military under the provisions of Army Regulation 635-200, paragraph 5-17, due to other designated physical or mental conditions, and that he receive an honorable characterization of service.  

8.  On an unspecified date, the separation authority approved the recommendation of separation under the provisions of Army Regulation 635-200, paragraph 5-17 for Other Physical or Mental Disorders and directed that the applicant be issued a General, Under Honorable Conditions discharge.

9.  His voided DD Form 214 shows he was discharged on 11 March 2005 after the completion of 2 years, 6 months, and 29 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) – Physical Condition, Not a Disability 

10.  He applied to the Army Discharge Review Board (ADRB) on 4 May 2009 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 29 July 2009, his character of service was upgraded to fully honorable. 

11.  His reissued DD Form 214 shows that item 24, his character of service was changed to honorable.  Items 25, 26 and 28 remained unchanged. 

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

   a.  Paragraph 5-13 provides that a Soldier may be separated for personality disorder, not amounting to disability under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) when the disorder is so severe that interferes with assignment to or performance of duty.  The diagnosis of personality disorder must have been established by a physician trained in Psychiatry.

   b.  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.  

   c.  Paragraph 5-17 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.

13.  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.  

14.  Army Regulation 635-5-1 (Separation Program Designator Codes) 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, paragraph 5-17.”

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been considered.  However, there is no evidence in the available record, nor has he submitted any evidence, showing that the separation authority currently shown on his DD Form 214 is incorrect.

2.  Army Regulation 635-200, paragraph 5-17, specifically provides that Soldiers may be separated under this provision on the basis of other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty.  


3.  Although he was diagnosed with a personality disorder in November 2004, his commander did not initiate separation proceedings until January 2005.  That is an indicator that something occurred between November 2004 and January 2005 to cause the commander to process him under the provisions of paragraph 5-17 rather than 5-13.  His commander mentioned, specifically, the applicant’s verbalization of homicidal intentions towards a superior officer, which could be an indicator of an adjustment disorder.

4.  In the absence of evidence to the contrary, it must be presumed that his commander properly initiated separation proceedings as a result of a condition not amounting to a disability as opposed to a personality disorder.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ____X___  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _ X  _______   ___
       	   CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20110008318



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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