IN THE CASE OF:	  

		BOARD DATE:	  20 March 2012

		DOCKET NUMBER:  AR20110016687 


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 item 28 (Narrative Reason for Separation) on the DD Form 214 (Certificate of Release or Discharge from Active Duty) from "condition, not a disability" to "disability." 

2.  The applicant states she was discharged due to post-traumatic stress disorder (PTSD) after being sexually assaulted.  The DD Form 214 states she was discharged due to a condition, not a disability; however, it is a disability.  She is 100-percent disabled because of this condition.

3.  The applicant provides a DD Form 214 and page 3 of DD Form 2648 (Preseparation Counseling Checklist for Active Component Service Members).

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 available evidence show the applicant enlisted in the Regular Army on 10 January 2006 and she held military occupational specialty 88M (Motor Transport Operator).  

3.  On 24 July 2006, the applicant was assigned to the 2nd Battalion, 2nd Aviation Regiment, 2nd Combat Aviation Brigade, Korea, after being sexually assaulted by another Soldier in her previous unit.

4.  On 5 December 2006, she received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice for disobeying a lawful order.

5.  On 2 January 2007, the applicant underwent a mental status evaluation at the 121st Combat Support Hospital (CSH), Korea after being referred by the commander.  The commander stated the applicant had difficulty with authority and expressed a strong desire to separate from the service.

6.  The examining psychologist diagnosed the applicant with an "adjustment disorder with depressed mood."  The examining psychologist stated "while the applicant exhibited many symptoms related to PTSD, that diagnosis has not yet been clearly established by her primary providers."  He also stated the applicant met the retention requirements of Army Regulation 40-501 (Standards of Medical Fitness) and did not require a medical board.  The Soldier was at risk for recurrent difficulties that would not resolve in the short term, would interfere with her ability to perform military duties, and continue to be a concern for the command.  He cleared the applicant for any administrative action the commander deemed appropriate.

7.  On 28 February 2007, the applicant underwent another mental status evaluation at 121st CSH after being admitted to the hospital on 23 February 2007.  The applicant was diagnosed with an "adjustment disorder with mixed anxiety and depressed mood."  The examining psychiatrist stated the condition and problems presented by the applicant were not amenable to hospitalization, treatment, or transfer.  The applicant had no potential to meet mobilization requirements and no potential for useful service.  It would be in the best interest of the applicant and the Army if the applicant was separated under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17, for other designated physical or mental conditions.

8.  On 1 March 2007, the applicant was notified by the immediate commander that a discharge action was being initiated against the applicant under the provisions of Army Regulation 635-200, paragraph 5-17, for other designated physical or mental conditions.  The specific reason noted was the applicant's mental condition that interfered with the applicant's ability to effectively perform military duties.  

9.  On 1 March 2007, the applicant acknowledged notification of the proposed discharge action.  On 6 March 2007, the applicant consulted with legal counsel and she was advised of the basis for the contemplated separation action, the effect on future enlistment in the Army, and of the procedures and rights that were available.

10.  12 March 2007, her senior commander recommended approval of her separation under the provisions of Army Regulation 635-200, paragraph 5-17, for other designated physical or mental conditions.

11.  On 17 March 2007, the separation authority approved the discharge action under Army Regulation 635-200, paragraph 5-17, and directed the issuance of an Honorable Discharge Certificate.  On 21 April 2007, she was discharged accordingly.

12.  The applicant's DD Form 214 confirms she was discharged by reason of a condition – not a disability under the provisions of Army Regulation 635-200, paragraph 5-17, with an honorable characterization of service and a separation code of JFV.  The applicant completed 1 year, 3 months, and 12 days of creditable active service.

13.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.  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 sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired.  

14.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty.  The SPD code of "JFV" is the correct code for Soldiers separating under Army Regulation 635-200, paragraph 5-17 and "Condition, Not a Disability" is the corresponding entry for the narrative reason for separation.


DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was diagnosed with an adjustment disorder with mixed anxiety and depress mood that was sufficiently severe enough to impair her ability to effectively perform military duties.  The applicant's narrative reason for separation was assigned based on the fact that the applicant was separated under the provisions of Army Regulation 635-200, paragraph 5-17, due to a mental condition.

2.  Absent this condition, there was no fundamental reason to process the applicant for discharge.  This is the only valid narrative reason for separation permitted under that paragraph.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  There is no evidence available that shows the applicant was diagnosed with or treated for PTSD while she was on active duty.  The applicant's narrative reason for separation is correctly shown on the DD Form 214.  Therefore, the applicant 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)                                         AR20110016687



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ABCMR Record of Proceedings (cont)                                         AR20110016687



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