IN THE CASE OF:	  

		BOARD DATE:	  5 January 2012

		DOCKET NUMBER:  AR20110012424 


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 her narrative reason for discharge, which includes her Separation Program Designator (SPD) and Reentry (RE) codes to show she was medically discharged or retired.

2.  The applicant states she was improperly discharged from the U.S. Army.  Additionally she states:

   a.  In June 2006, she enlisted in the U.S. Army in the rank of specialist (SPC)/E-4 based on her advanced level of education.
   
   b.  In February 2007, she deployed to Forward Operating Base (FOB) Falcon in Iraq.  She injured her back moving equipment from a helicopter and was given a profile for limited duty.
   
   c.  Her first sergeant (1SG), 1SG W----, repeatedly confronted her and used provocative speech in the form of threats, sexual epithets, and verbal abuse.  He also accused her of not working fast enough.
   
   d.  In an effort to appease 1SG W----, she attempted to perform to his expectations, which resulted in her exacerbating her lower back injury.
   
   e.  Despite her injury and physical profile, he directed her to complete the Army Physical Fitness Test (APFT) even though she had a valid APFT score on record that was less than 2 months old.  The 1SG asserted that the Army Regulation (AR) required an APFT within 30 days of deployment.
   f.  The 1SG and other male noncommissioned officers (NCOs) sexually harassed her by referring to her as "Princess," Russian B----," and they used other sexually and personally demeaning names.  This adversely affected her job performance.
   
   g.  She was referred to Captain (CPT) C---- and confided in her.  She subsequently learned that CPT C---- spoke with 1SG W---- who expressed his concern about the applicant.  The applicant then learned that CPT C---- was a social worker, not a licensed doctor, and that her conversations with her were not protected under doctor-patient confidentiality.
   
   h.  Upon return to her unit an NCO directed her to remove the bolt from her weapon.  The company commander, accompanied by the brigade surgeon, gave her some papers that indicated she was suspected of being suicidal and referred her to a doctor for evaluation.
   
   i.  She spoke with her husband by telephone and told him about the events that had transpired.  The applicant's husband contacted his Congressman for help with the applicant's situation.  Approximately 2 weeks later, the Congressman told her husband that the applicant was being returned to the United States for discharge.
   
   j.  On 24 April 2007, the applicant was referred to Lieutenant Commander (LCDR) (Doctor) David M---- for psychiatric evaluation.  The evaluation took only about 15 minutes and he rendered "a complex diagnosis of a deep rooted personality disorder."  The applicant believes that proper diagnosis of this condition requires a battery of tests and could take months to render.
   
   k.  She adds Doctor T----- W-----, a noted expert in the field of personality and social psychology, states there are seven forms of personality disorder, none of which are listed as being associated with the applicant.  The applicant outlines a four-step diagnosis procedure and the Five Factor Model (FFM) that is used for diagnosing personality disorders.
   
   l.  Doctor M-----'s opinion, rendered after a 15-minute office visit, essentially states she was "fine, but needed to grow thicker skin," that she "does not have an unfitting diagnosis that requires medical evaluation board," and he diagnosed her with personality disorder.
   
   m.  Two days later, 1SG W---- took her weapon and detailed her to be a guard outside the post exchange.  When she questioned 1SG W about how she could stand guard without a weapon, he broke out into a rage and threatened her.  She adds that this situation placed her on display and publicly humiliated her.
   
   n.  During the month of May 2007 she received several verbal orders and written counseling statements directing her not to have contact with a certain NCO from another unit.  The 1SG also ordered her not to speak to any male Soldiers.
   
   o.  In late May, when the applicant was not feeling well, a male Soldier from another unit brought her dinner at her tent.  The 1SG came into the tent at the time and started shouting at her and the male Soldier using sexually demeaning and abusive language.
   
	p.  She states her chain of command violated Title 10, U.S. Code:

* section 917, punishable under the Uniform Code of Military Justice (UCMJ), Article 117 (Provoking Speech)
* section 893, punishable under the UCMJ, Article 93 (Cruelty and Maltreatment)
* section 907, punishable under the UCMJ, Article 107 (Making of False Statement)
* section 897, punishable under the UCMJ, Article 97 (Unlawful Detention)
* section 1561, (Complaints of Sexual Harassment:  Investigation By Commanding Officers)

	q.  The applicant adds that the chain of command up to the Commander,
4th Infantry Brigade Combat Team was aware of these violations.

	r.  The applicant concludes by stating she suffers from depressive chronic pain disorder (caused by chronic lower back pain) and post-traumatic stress disorder (PTSD) caused by sexual harassment.  As a result of her maltreatment, she also suffers from anger, avoidance, high levels of stress, self-blame, fear and lack of trust of men, anxiety, low self-esteem, and inability to work.
 
3.  The applicant provides a self-authored statement, statement from her spouse, neuropsychological evaluation, dated 7 February 2011, MEDCOM Form 699-R (Report of Mental Status Evaluation), Army medical records, DD Form 214 (Certificate of Release or Discharge from Active Duty), and Department of Veterans Affairs (VA) medical records.



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.  On 15 June 2006, the applicant enlisted in the Regular Army in the rank of SPC/E-4 for a period of 5 years.  Upon completion of training she was awarded military occupational specialty 98G (Cryptologic Linguist).

3.  On 11 January 2007, she was assigned to Company B, 4th Brigade Special Troops Battalion, 4th Infantry Brigade Company Team, Fort Riley, Kansas.  She deployed in support of Operation Iraqi Freedom on 1 February 2007.

4.  A DA Form 4856 (Developmental Counseling Form), dated 15 March 2007, shows the applicant's squad leader counseled her for:

* disobeying a lawful order to remain close to her tent when finished with the morning motor pool detail
* being disrespectful and insulting by yelling at the squad leader after being told to carry a pair of bolt cutters weighing about 8 pounds
* displaying an attitude of being above work or refusing to do any work
* going on sick call without following the correct procedure

5.  A DA Form 4856, dated 13 April 2007, shows the applicant's team leader counseled her on several occasions about cleaning up the work area, and leaving food next to her workstation after departing.

6.  A DA Form 4856, dated 23 April 2007, shows the applicant's platoon sergeant counseled her for raising her voice after being told not to do so when being questioned about her extended lunch period, yelling at her platoon sergeant after being told "At Ease," and storming out of the work place and slamming the doors on her way out.

7.  Headquarters, 28th Combat Support Hospital, IBN Sina Hospital, Baghdad, Iraq, memorandum, dated 24 April 2007, subject:  Expeditious Administrative Recommendation and Buddy-Watch [for Applicant] and MEDCOM Form 699-R show the applicant was evaluated on 24 April 2007 for further evaluation of depressed and anxious mood and poor adaptation to military life.

	a.  Lieutenant Commander (Doctor) D. L. M----, Staff Psychiatrist, diagnosed the applicant, as follows:

* Axis I:  Adjustment Disorder with Mixed Disturbance of Emotions and Conduct
* Axis II:  Personality Disorder Not Otherwise Specified (NOS), with Dependent Features

   b.  He indicated, "[the applicant] demonstrated significant reliance and support from her spouse, has been overly sensitive to constructive criticism and frequently has emotional breakdowns on the job.  Additionally, she is not currently able to function in the full capacity of her job due to these symptoms."

	c.  He determined that the applicant met the medical retention standards prescribed in AR 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement).

	d.  He confirmed the diagnosis represented a personality disorder within the meaning of AR 635-200 (Personnel Separations - Enlisted Separations), chapter 5 (Separation for the Convenience of the Government), paragraph 5-13 (Personality Disorder).

	e.  He also recommended the applicant's removal from the theater as quickly as possible.

8.  On 19 May 2007, the applicant's commander initiated action to discharge her from the service under the provisions of AR 635-200, paragraph 5-13, due to personality disorder that interferes with assignment or performance of duty.  The applicant was informed of her rights and that the separation authority could direct either an honorable or under honorable conditions discharge.

9.  The applicant consulted with counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to her, and of the effect of a waiver of her rights.

   a.  She acknowledged she understood that military legal counsel for consultation was available to assist her and she declined that opportunity.
   b.  She indicated that statements in her own behalf were not submitted.

   c.  She was advised she may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to her.
   
   d.  The applicant acknowledged she understood that if she received a discharge certificate/character of service which was less than honorable, she could make application to the ABCMR for an upgrade; however, an act of consideration by the board did not imply that her discharge would be upgraded.

   e.  The applicant and her consulting counsel each placed their signature on the document on 22 May 2007.
   
10.  The immediate and intermediate commanders recommended approval of the applicant's separation action.

11.  On 28 May 2007, the separation authority approved the chain of command's recommendation for the applicant's discharge and directed that she be discharged under the provisions of AR 635-200, chapter 5, paragraph 5-13, because of personality disorder with the issuance of an Honorable Discharge Certificate.

12.  The applicant's DD Form 214 shows she was honorably discharged on 
8 August 2007 under the provisions of AR 635-200, paragraph 5-13, based on personality disorder.  She completed 1 year, 1 month, and 21 days of net active service.  It also shows in:

	a.  item 25 (Separation Authority):  AR 635-200, paragraph 5-13;

	b.  item 26 (Separation Code):  "JFX" [Personality Disorder];

	c.  item 27 (Reentry Code):  "3" [Not considered fully qualified for reentry at time of separation, but disqualification is waivable];

	d.  item 28 (Narrative Reason for Separation):  "Personality Disorder"; and

	e.  item 29 (Dates of Time Lost During This Period):  Time Lost under Title 10, U.S. Code, section 972, from 10 - 12 June 2007.



13.  In support of her application, the applicant provides the following pertinent documents:

   a.  A letter from the applicant's spouse, Mr. N----- T. S-----, dated 6 June 2011.  Mr. S--- provides a summary of the applicant's military service similar to that provided by the applicant in her statement to the Board.  He also repeats the incidents the applicant related to him about her experience in Iraq.
   
   b.  A Neuropsychological Evaluation, dated 7 February 2011, that shows the psychologist's diagnostic impressions included:  PTSD, chronic (combat as well as non-combat); anxiety disorder, NOS; depressive disorder, NOS; chronic pain (associated with reported medical conditions); and severe psychosocial stressors.  The psychologist concluded the applicant suffers from PTSD with subsequent anxiety and depression that is a direct result of her 5-month deployment in Iraq in 2007.
   
   c.  A DD Form 2807-1 (Report of Medical History), DD Form 2807-2 (Medical Prescreen of Medical History Report), and DD Form 2808 (Report of Medical Examination), dated 1 June 2006, that show the examining physician found the applicant qualified for service in the U.S. Army.
   
   d.  Army Medical Service Records, covering the period 19 June 2006 through 30 May 2007, that document the applicant's medical treatment for various complaints/conditions, including tuberculosis screening, refractive error, foot/ ankle pain, upper respiratory infection, herpes simplex, back strain, acne, lumbago, reactions to stress and allergies, depression, and migraine headaches.
   
    	(1)  Beginning 2 June 2007, her records show "personality disorder" and "adjustment disorder with disturbance of emotions and conduct."
   
    	(2)  The medical records also show she continued to seek medical treatment for various conditions through the date of her separation.
   
   e.  A DD Form 2807-1 and DD Form 2808, dated 19 June 2007, that show the examining physician found the applicant was not qualified for service based on personality disorder.  He also noted the other conditions the applicant complained of previously had either been resolved or treated with medications.
   
   f.  VA medical records, covering the period 17 to 30 September 2010, that document the applicant's lumbar surgery in 2008 and medical treatment for disc herniation.
   
14.  AR 40-501, chapter 3, paragraph 3-36 (Adjustment Disorders), 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.

15.  AR 635-200, in effect at the time, sets forth 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 AR 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 psychiatrist or doctoral-level clinical psychologist with necessary and appropriate professional credentials.

16.  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 a disability rated at least 30%.  Section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years of service and a disability rated at less than 30%.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her administrative discharge should be changed to show she was medically discharged or retired.

2.  The applicant's contention and the evidence she provided were carefully considered.

   a.  The Army medical records that the applicant provides show she met the medical retention standards prescribed in AR 40-501.  These records offer no evidence that she was found unfit because of physical disability to reasonably perform the duties of her office, grade, rank, or rating that required her referral to the physical disability evaluation system.
   
   b.  The AR governing the applicant's discharge required that "the diagnosis of personality disorder must have been established by a physician or doctoral-level clinical psychologist with necessary and appropriate professional credentials."  The evidence of record shows that such a diagnosis, that met the criteria for administrative separation, was made by an Army psychiatrist in the applicant's case.
   
   
   c.  The post-service medical records the applicant provides documenting medical treatment more than 3 years after her administrative discharge from the U.S. Army were considered.  However, they provide insufficient evidence to support her contention that she should have been medically discharged or retired.

3.  The applicant's administrative separation under the provisions of AR 635-200, paragraph 5-13, due to personality disorder was in compliance with all requirements of law and applicable regulations with no indication of procedural errors which would have jeopardized her rights.  In addition, the narrative reason for discharge and assigned SPD and RE codes were appropriate and equitable.

4.  In view of all 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.
ABCMR Record of Proceedings (cont)                                         AR20110012424



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ABCMR Record of Proceedings (cont)                                         AR20110012424



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