IN THE CASE OF:	  

		BOARD DATE:  16 October 2012

		DOCKET NUMBER:  AR20120006621 


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 the separation authority shown on his 
DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states, on 14 August 1990, Doctor (Major) M_____ recommended him for expeditious discharge in accordance with Army Regulation (AR) 635-200 (Enlisted Separations - Enlisted Personnel), paragraph 5-13 (Separation Because of Personality Disorder).

   a.  In a letter, dated 3 September 2004, the President of the Army Discharge Review Board (ADRB) informed him the ADRB reviewed his discharge and determined that relief was warranted.

	b.  He adds "If the CID (U.S. Army Criminal Investigation Command) used me to do sting operations in the barracks, they should have at least removed me from the battery.  Notwithstanding Friendly Fire."

3.  The applicant provides, in support of his application, copies of:

* his birth certificate
* Interior Board of Indian Appeals
* Psychiatric Evaluation, dated 14 August 1990
* ADRB memorandum, dated 3 September 2004
* Social Security Administration, Disability Notice
* Department of Veterans Affairs (VA) claim letter
* medical and education 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 28 November 1989, the applicant enlisted in the Regular Army for a period of 4 years.  He was awarded military occupational specialty 13B (Cannon Crewmember).

3.  A memorandum from the Chief, Out-Patient Psychiatry, to the applicant's commander, subject:  Psychiatric Evaluation, shows Doctor (Major) M_____ evaluated the applicant and diagnosed the applicant with polysubstance abuse (in partial remission) and personality disorder with histrionic and narcissistic features.  The recommendation was expeditious discharge in accordance with AR 635-200, paragraph 5-13.

4.  The applicant's military personnel records do not contain a copy of his discharge packet.

5.  The applicant was discharged on 19 September 1990.  His DD Form 214 showed he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12a for misconduct, drug abuse.

6.  On 4 June 2003, the applicant submitted an application to the ADRB requesting a review of his discharge.

7.  The ADRB reviewed the applicant's case and noted:

   a.  On 14 August 1990, the applicant was diagnosed with a personality disorder with histrionic and narcissistic features.  The psychiatrist determined that the applicant's personality disorder was incompatible with continued military service and recommended the applicant's expeditious separation under the provisions of AR 635-200, paragraph 5-13.

   b.  On 10 September 1990, the unit commander initiated separation action under the provisions of AR 635-200, paragraph 14-12a, by reason of misconduct (minor disciplinary infractions) based on his record of nonjudicial punishment on two occasions.  He had 38 days lost between 5 and 16 June 1990 and 5 and    30 July 1990.  The separation authority waived further rehabilitative efforts and directed that the applicant be discharged with service characterized as general.

   c.  Given the facts and circumstances, the ADRB determined that the applicant would have been more equitably discharged based on his personality disorder.

   d.  On 1 September 2004, the ADRB voted to grant the applicant relief in the form of an upgrade of the characterization of his service to fully honorable and to change the narrative reason for separation to Secretarial authority (paragraph
5-3 of AR 635-200).

   e.  Accordingly, the ADRB voided the applicant's original DD Form 214 and issued him a new DD Form 214.

8.  The applicant's DD Form 214 shows he entered active duty this period on
28 November 1989 and he was honorably discharged on 19 September 1990. He completed 8 months and 14 days of active service.  It also shows in:

* item 25 (Separation Authority):  "AR 635-200, paragraph 5-3"
* item 26 (Separation Code):  "JFF"
* item 28 (Narrative Reason for Separation):  "Secretarial Authority"

9.  In support of his application, the applicant provides the following documents:

   a.  His birth certificate that shows he was born on 15 June 1969; however, the applicant indicates on the document that his birth year should be "1968."

   b.  Interior Board of Indian Appeals, Florida Tribe of Eastern Creek Indians v. Deputy Assistant Secretary - Indian Affairs (Operations), that shows the case was dismissed for lack of jurisdiction and transferred to District Court, Sharon v. United States.  The applicant's signature appears on the document along with his purported date of birth.

   c.  Social Security Administration, Disability Notice, dated 31 October 2003, that shows the applicant met the medical requirements for disability benefits.

   d.  VA claim letter, dated 22 August 2007, that shows the VA determined that the applicant's schizophrenia, paranoid type, bipolar disorder, and polysubstance dependence were not related to his military service, so service connection could not be granted.

   e.  Three doctor's letters and a medical consult, dated 27 April 2009, 21 July 2011, 10 November 2011, and 12 January 2012, that show the applicant received treatment for: 

* bipolar disorder with psychotic symptoms
* depression secondary to a medical condition
* drug dependency
* PTSD (post-traumatic stress disorder)
* ADHD (attention deficit hyperactivity disorder)
* increasing depression, anxiety, racing thoughts
* neutropenia from chemotherapy
* Hepatitis C

   f.  Certificates and letters that show the applicant:

* was awarded his High School Diploma on 1 June 1987
* made the President's List during the Fall 2006 term at Gulf Coast Community College
* was President of the Student Government Council, Florida State University and he:

* participated as an Event Supporter of the Career Center's Student Networking Reception
* sponsored a Resolution to establish Finance as a major at the Panama City Campus, Florida State University

* completed the Water Treatment Plant Operation course in March 2010
* passed the Act Lead in Quiz Form 5266 on 7 June 2011

10.  AR 635-200, in effect at the time, provides the basic authority for the separation of enlisted personnel.  Chapter 5 set forth the basic authority for the separation of enlisted personnel for the convenience of the government.

   a.  Paragraph 5-13 provides that a Soldier may be separated for personality disorder, not amounting to disability under AR 635-40, that 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 Soldier's ability to perform duty.  Commanders will not take action prescribed in this chapter in lieu of disciplinary action.  It requires that the diagnosis concludes the disorder is so severe that the Soldier's ability to function in the military environment is significantly impaired.  It also states that separation for personality disorder is not appropriate when separation is warranted under (in pertinent part) chapter 14 (Misconduct).

   b.  Paragraph 5-3 states that the separation of enlisted personnel is the prerogative of the Secretary of the Army and will be effected only by his authority.  Except as delegated by these regulations or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for the convenience of the Government will be at the Secretary's discretion and with the type of discharge as determined by him.  Such authority may be given either in an individual case or by an order applicable to all cases specified in such order.

11.  AR 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 codes to be entered on the DD Form 214. It shows that SPD code "JFF" is the appropriate code to assign to Soldiers separated under the provisions of AR 635-200, paragraph 5-3, based on Secretarial authority.

12.  AR 635-5 (Personnel Separations - Separation Documents), in effect at the time, prescribes policies and procedures regarding separation documents.  It establishes standardized policy for preparing and distributing the DD Form 214.

   a.  Section III (Instructions for Preparation and Distribution of the Armed Forces of the United States Report of Transfer or Discharge) contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that all available records will be used as a basis for the preparation of the DD Form 214, including the Enlisted Qualification Record, Officer Qualification Record, and orders

   b.  It shows for:

    	(1)  item 25 (Separation and Authority), enter the regulatory or other authority cited in directives authorizing separation;

    	(2)  item 26 (Separation Code), enter the proper SPD representing the specific authority for separation  (AR 635-5-1 provides the authorities, reasons, and applicable SPDs); and

    	(3)  item 28 (Narrative Reason for Separation), enter the narrative reason for separation as shown in AR 635-5-1 based on the regulatory or other authority.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the separation authority shown on his DD Form 214 should be corrected because the ADRB determined that his discharge was inequitable.  Therefore, the reference to AR 635-200, paragraph 5-13, should be removed.

2.  The evidence of record shows the applicant was discharged under honorable conditions on 19 September 1990.

   a.  On 1 September 2004, the ADRB determined that the applicant would have been more equitably discharged based on his personality disorder; however, he was not.  Thus, the ADRB directed an upgrade of the characterization of his service to fully honorable and a change of the narrative reason for separation to Secretarial Authority.

   b.  The ADRB voided the applicant's original DD Form 214 and issued him a new DD Form 214.

   c.  The new DD Form 214 shows the applicant was honorably discharged on 19 September 1990 under the provisions of AR 635-200, paragraph 5-3 (emphasis added), based on Secretarial Authority.  Thus, the DD Form 214 shows the correct separation authority, narrative reason, and SPD code.

   d.  There is no reference to AR 635-200, paragraph 5-13 (emphasis added) on the DD Form 214.

3.  Therefore, in view of all of the foregoing, there is no basis to grant 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)                                         AR20120006621



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120006621



7


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1