BOARD DATE:	  11 June 2013

		DOCKET NUMBER:  AR20120018516 


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, the narrative reason for separation be changed from personality disorder to medical discharge – post-traumatic stress disorder (PTSD)
* the recoupment action of his reenlistment bonus be stopped 

2.  The applicant states he never received screening for PTSD and he is receiving service-connected disability compensation from the Department of Veterans Affairs (VA) at the rate of 50 percent.  

3.  The applicant provides a letter from the Office of the Assistant Secretary of the Army (Manpower and Reserve Affairs) and a letter from the VA.

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 record shows he enlisted in the Regular Army (RA) on 29 April 2003 and he held military occupational specialty (MOS) 63M (Bradley Fighting Vehicle Systems Maintainer).  He served in Kuwait/Iraq from 8 August 2004 to 31 July 2005.  

3.  While deployed, he executed a 6-year reenlistment in the RA.  His DD Form 4 (Enlistment/Reenlistment Document) shows he reenlisted for current station stabilization (Fort Carson, CO), with a Selective Reenlistment Bonus (SRB) in accordance with Military Personnel (MILPER) Message 04-354, dated 20 December 2004, Subject: SRB – Deployed Program. 

4.  The reenlistment bonus was authorized by MILPER Message 04-354, effective 30 December 2004.  It provided that qualified Soldiers were eligible for a lump sum bonus of up to $15,000.  All Soldiers, grades E-3 through E-6, who were qualified to reenlist had the opportunity to take advantage of this bonus regardless of their reenlistment window, provided they have never received a Zone A or Zone B bonus.

5.  On 10 June 2006, he was counseled by his rear detachment first sergeant for:

* failing to obey an order or regulation related to consumption of alcohol
* being picked up by ambulance to be treated for intoxication
* failing to report to his appointed place of duty

6.  On 18 August 2006, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for failing to go at the time prescribed to his appointed place of duty and disobeying a lawful order from a superior noncommissioned officer not to drink in the field.  

7.  On 28 July 2006, he underwent a mental status evaluation.  The clinical psychiatrist diagnosed him with an anti-social personality disorder.  The evaluation shows: 

	a.  His behavior was hyperactive, aggressive, suspicious, and bizarre; his alertness level/orientation was fully alert and oriented; his mood was labile; his thinking process was clear and thought process was normal; and his memory was fair.

	b.  The clinical psychiatrist stated the applicant met medical retention requirements and was mentally responsible.  He did not have a severe mental disorder and was not considered mentally disordered.  However, he manifested a long-standing disorder of character, behavior, and adaptability that was of such severity as to preclude adequate military service.  Although he was not at risk of suicide or homicide, due to these life-long patterns of maladaptive responses to routine personal and/or work related stressors he could become dangerous to himself or others.  He would not respond to command efforts at rehabilitation and he was recommended for administrative separation. 

8.  On 22 August 2006, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of paragraph 5-13, Army Regulation 635-200 (Enlisted Active Separations) because of personality disorder/anti-social disorder.  He recommended an honorable character of service.   

9.  On 22 August 2006, the applicant acknowledged receipt of the notification of separation action.  He consulted with legal counsel and was advised of the basis for the contemplated separation and of the rights available to him in connection with the action.  Subsequent to receiving legal counsel, the applicant elected not to submit statements in his own behalf. 

10.  Subsequent to this acknowledgement, the immediate commander initiated separation action against the applicant under the provisions of Army Regulation 635-200, paragraph 5-13, by reason of personality disorder/anti-social disorder. 

11.  On 23 August 2006, the separation authority approved the applicant's separation under the provisions of paragraph 5-13, Army Regulation 635-200, by reason of personality disorder and directed the applicant be issued an honorable characterization of service.  On 12 September 2006, the applicant was discharged accordingly.  

12.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of chapter 5-13 of Army Regulation 635-200 with an honorable character of service.  He completed 3 years, 4 months, and 14 days of active service, of which 1 year, 4 months, and 10 days were under the May 2005 reenlistment.  He was assigned Separation Code "JFX." 

13.  It appears officials at the Defense Finance and Accounting Service (DFAS) initiated a reenlistment bonus recoupment action against the applicant.  However, an email dated 5 June 2013 from DFAS confirmed the applicant has no debt as his case was closed and the debt was forgiven in March 2011.
14.  In connection with the processing of this case, an advisory opinion was obtained on 30 April 2013 from the Office of The Surgeon General (OTSG), Director of Health Care Delivery.  The OTSG official states:

	a.  Although the applicant completed a Post-Deployment Health Assessment days after his return, his PTSD screen at the time was negative.  A self-referral, he began Behavioral Health treatment almost 2 months later, in September 2005. At his first appointments with the psychologist and then the psychiatrist, he described PTSD and some depressive symptoms and was diagnosed with PTSD, Depressive Disorder Not Otherwise Specified (NOS), and Insomnia.  He was prescribed medications to address his symptoms and he was referred to individual therapy and the Deployment Stress Recovery Group, and later the Anger Management Group.  He attended treatment inconsistently and participation varied from participative to unconstructive.

	b.  In March 2006, he was diagnosed with Alcohol Abuse and Personality Disorder (NOS), which was later refined to Anti-Social Personality in June.  He exhibited impulsivity (i.e., interrupting, poor decisions, taking more medications than prescribed), irritability, and aggressiveness (e.g., physical fights, aggressive behaviors), reckless disregard of safety (e.g., drag racing, driving while intoxicated), lack of remorse (e.g., did not accept personal responsibility for his own actions), and problems conforming to lawful behavior (e.g., driving while intoxicated, physical altercation).  

	c.  His history prior to deployment with regard to these behaviors, however, was not documented.  So, it is unknown if this was a long-standing pattern or associated with his PTSD and excessive alcohol consumption.  In addition, he exhibited immaturity, poor boundaries, and limited insight in addition to an expressed unwillingness to make change.  In April 2006, a case closure note was written, albeit prematurely, which did not list depression as a diagnosis and noted that the treatment goal was met with his improved mood.  Throughout his clinical contacts, he would intermittently report depressive symptoms; however, it did not appear to be to the level to justify a depressive disorder diagnosis.  

	d.  During the time of his treatment, he disclosed significant and concerning alcohol use.  In June 2006, while intoxicated, he assaulted two individuals and described the events as occurring during a blackout.  Three days after relating to his psychiatrist he experienced a blackout at the time and could not recall events, he related in detail the events to another provider and bragged about the incidents.  He later related in group he was in a blackout.  He received an Article 15 and a reduction in grade as a consequence of his behavior.  Additionally, there were times he took more of his medication than prescribed.  

	e.  At the annual Soldier Readiness Processing, he responded positively to a traumatic brain injury screen and was subsequently referred for an evaluation.  The neuropsychological assessment found his cognitive functioning to be in the average to above average range, and symptoms he did experience were expected to resolve with restful sleep, abstinence from alcohol, and anger and PTSD treatment.  On numerous occasions, he blamed missing appointments on memory problems; however, his provider noted he demonstrated good recall much of the time.  

	f.  While his documented behaviors are strongly suggestive of a personality disorder, the record does not demonstrate the history needed to support that diagnosis, that is, whether these behaviors were evident prior to deployment.  In addition, while he is fully responsible for his choices and behavior, his PTSD and alcohol abuse diagnosis could have contributed to many of his behaviors, though not all.  Given his reluctance to make changes, it is unlikely he would have been able during his active service to have a successful treatment outcome.  At the time of his discharge from active duty, he did appear to qualify for a diagnosis of PTSD which he developed following combat experience.  A medical evaluation board (MEB) would likely have been appropriate in accordance with Army Regulation 40-501 (Standards of Medical Fitness), for determination of fitness. 

15.  On 8 May 2013, the applicant was provided a copy of the OTSG advisory opinion in order to have the opportunity to respond to or rebut its contents.  To date, he has failed to reply.   

16.  The applicant provides a letter, dated 16 September 2012, from the VA verifying his entitlement to receipt of service-connected disability compensation effective 1 December 2011. 

17.  Army Regulation 635-200 prescribes the policy for the administrative separation of enlisted personnel.  Paragraph 5-13 provides for separating members by reason of personality disorder (not amounting to disability) that interferes with assignment or with performance of duty.  

18.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.

   a.  Paragraph 3–9 provides guidance for the Temporary Disability Retired List (TDRL).  Specifically, it states the TDRL is used in the nature of a "pending list."  It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover or nearly recover from the disability causing him or her to be unfit.  Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability.  Requirements for placement on the TDRL are the same as for permanent retirement.  The Soldier must be unfit to perform the duties of his or her office, grade, rank, or rating at the time of evaluation.  The disability must be rated at a minimum of 30 percent or the Soldier must have 20 years of service computed under Title 10, U.S. Code, section 1208 (10 USC 1208).  In addition, the condition must be determined to be temporary or unstable.

   b.  Paragraph 4-17 provides guidance for Physical Evaluation Boards (PEBs). Specifically, it states 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 recommendation may be revised. 

19.  The VA Schedule for Ratings Disabilities (VASRD), section 4.129, provides information regarding mental disorders due to traumatic stress.  Specifically, it states that when a mental disorder that develops in service as a result of a highly stressful event is severe enough to bring about the veteran’s release from active military service, the rating agency shall assign an evaluation of not less than
50 percent and schedule an examination within the 6-month period following the veteran’s discharge to determine whether a change in evaluation is warranted.

20.  The 2008 National Defense Authorization Act (NDAA), section 3.1, effective 28 January 2008, provides that in making a determination of a member's disability rating the Military Department shall, to the extent feasible, utilize the VASRD in use by the VA.  

21.  In a 17 July 2009 memorandum, the Office of the Under Secretary of Defense (Personnel and Readiness) directed that as a matter of policy, all three Boards for Correction of Military Records will apply VASRD Section 4.129 to PTSD unfitting conditions for applicants discharged after 11 September 2001 and, in such cases where a grant of relief is appropriate, assign a disability rating of not less than 50% for PTSD unfitting conditions for an initial period of 6 months following separation, with subsequent fitness and PTSD ratings based on the applicable evidence.  It would be inequitable to treat PTSD unfitting conditions differently than any other unfitting conditions.  Therefore, as a matter of equity and policy, provisions of Department of Defense or Army regulations or guidelines relied upon by the PEB will not be considered by the ABCMR to the extent they were inconsistent with the VASRD in effect at the time of the adjudication in all cases in which the applicant was discharged on or after 
11 September 2001.


DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged from active duty on 12 September 2006 by reason of a personality disorder.  While his documented behaviors were strongly suggestive of a personality disorder, the record does not demonstrate the history needed to support that diagnosis, that is, whether these behaviors were evident prior to deployment.  

2.  Although he was fully responsible for his choices and behavior, his PTSD and alcohol abuse diagnosis could have contributed to many of his behaviors, though not all.  Given his reluctance to make changes, it is unlikely he would have been able during his active service to have a successful treatment outcome.  

3.  At the time of his discharge from active duty, he did appear to qualify for a diagnosis of PTSD which he developed following combat experience.  Although this condition is not evident in the available records, an MEB would likely have been appropriate in accordance with Army Regulation 40-501 for determination of his fitness.   

4.  Under the principles of the 2008 NDAA the applicant's PTSD conditions warrant correction of his record by voiding his 12 September 2006 discharge by reason of personality disorder and to show he was instead separated by reason of disability, temporary on 12 September 2006, and placed on the TDRL on 13 September 2006, at a 50-percent disability rating.  

5. Based on the available evidence, the U.S. Army Physical Disability Agency (USAPDA) should evaluate the applicant’s medical conditions to determine if the applicant’s condition 6 months after placement on the TDRL warrants a permanent disability retirement.  

6.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant's SBP status/coverage.  The applicant is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.  The RSO can also assist with any TRICARE questions the applicant may have.

7.  As for his reenlistment bonus, he reenlisted on 2 May 2005 for a 6-year term in exchange for a reenlistment bonus.  He did not serve out the full term of his    6-year reenlistment, thus he did not qualify to keep the full reenlistment bonus and DFAS appropriately began recoupment action.  Nevertheless, DFAS confirmed the applicant has no debt as his case was closed and the debt was forgiven in March 2011.

BOARD VOTE:

__X_____  ___X___  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: 

* retroactively placing the individual on the TDRL for a minimum of 6 months at a 50-percent disability rating for PTSD effective the date initially separated
* the USAPDA evaluating the applicant's medical conditions based on all available evidence to determine the appropriate final disability rating
* paying him any pay due



      _______ _  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)                                         AR20120018516





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ABCMR Record of Proceedings (cont)                                         AR20120018516



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