IN THE CASE OF:	  

		BOARD DATE:  23 July 2013

		DOCKET NUMBER:  AR20120019264 


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). 

2.  The applicant after she was sexually assaulted while in the Army, she became very depressed because of the nightmares and PTSD symptoms from the forcible rape.  She should have been medically discharged for her Traumatic Brain Injury (TBI), right ankle injury, left knee injury, bilateral hip injury, bilateral shinsplints, chronic obstructive pulmonary disease, migraines, and right shoulder injury from a 10-foot fall she took. 

3.  She also states that after she was sexually assaulted and raped, she was diagnosed with a pre-existing personality disorder.  However, prior to joining the military and being raped, she had never suffered from depression or suicidal thoughts.  She has a ton of friends and a healthy relationship with her family.  She had never had any nightmares until she was sexually assaulted.  Many things changed after that assault.  She became depressed, suicidal, and she knew there was no turning back on her.  The military treated her like she was the one who committed the crime.  She twice tried to take her own life and she felt like less than a woman.  

4.  The applicant provides:

* Approval memorandum of her separation 
* Report of Mental Health Evaluation
* Administrative Separation Request Sheet
* DD Form 2807-1 (Report of Medical History)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 she enlisted in the Regular Army on 18 August 2004 and she held military occupational specialty 92M (Mortuary Affairs Specialist).  She was assigned to the 56th Quartermaster Company, 240th Quartermaster Battalion, Fort Lee, VA.

3.   On 3 June 2005, she underwent a mental status evaluation at the Community Mental Health, Fort Lee, VA.  The clinical psychologist noted that:

	a.  Her behavior was normal, she was fully alert and oriented, she had a labile mood, clear thinking process, normal thought content, and good memory.  She was mentally responsible, had the capacity to understand and participate in proceedings, and she met the retention standards of chapter 3, Army Regulation 40-501 (Standards of Medical Fitness).  She did not require a medical evaluation board (MEB). 

	b.  Her evaluation consisted of a clinical interview and/or psychometric testing and resulted in a diagnosis of 

* Axis I: Personality Disorder without Agoraphobia, Depressive Disorder Not Otherwise Specified (NOS) 
* Axis II: Personality Disorder NOS with Borderline features
* Axis III: Knee problem

   c.  She had developed a personality disorder and consequently, she was vulnerable to anxiety and depression, all of which are problems that began prior to service.  She did not appear to have developed any conditions while being in the military or as a result of her military service.  She would have likely had significant difficulties in the military and she was unlikely able to handle the stressors.  Because of her personality disorder, she met the criteria for an administrative separation via a paragraph 5-13.  She reported a knee problem that she stated started in basic combat training.  She should be examined to determine if her administrative separation should continue.

4.  On 27 June 2005, she underwent a complete separation physical.  She listed several of the conditions she now claims but none were determined by medical authorities to be medically unfitting.  She was qualified for retention and separation.  

5.  On 13 September 2005, the applicant's immediate commander notified the applicant of her intent to initiate separation action against her under the provisions of paragraph 5-13, Army Regulation 635-200 (Enlisted Active Separations) because of personality disorder.  The immediate commander stated the reason for separation was that she had been diagnosed with a personality disorder, a depressive disorder, and a panic disorder without agoraphobia.  The immediate commander recommended an honorable character of service.   

6.  On 13 September 2005, after the applicant acknowledged receipt of the notification of separation action, she consulted with legal counsel and was advised of the basis for the contemplated separation and of the rights available to her in connection with the action.  Subsequent to receiving legal counsel, the applicant elected not to submit statements in her own behalf. 

7.  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.  The intermediate commander recommended approval.  A military attorney reviewed the separation packet and found it legally sufficient. 

8.  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 13 October 2005, the applicant was discharged accordingly.  

9.  Her DD Form 214 shows she was discharged under the provisions of chapter 5-13 of Army Regulation 635-200 with an honorable character of service.  She completed 1 year, 1 month, and 26 days of active service.  She was assigned separation code "JFX." 

10.  In connection with the processing of this case, an advisory opinion was obtained on 7 June 2013 from the Office of The Surgeon General (OTSG), Director of Health Care Delivery.  The OTSG official states the applicant stated, "After I was sexually assaulted in the US Army I became very depressed, because of the nightmares and Post-Traumatic Stress Disorder (PTSD) symptoms from the forcable [sic] rape.  When instead I should have been medically discharged," after which she listed her physical conditions.  Conclusions for this advisory opinion are drawn solely based on available documentation from her time in service unless otherwise indicated.

	a.  Records available for the applicant's review are quite limited.  Documents she submitted with her request for review provided the primary source of information.  No behavioral health records were available from her time in service, and available medical records did not address behavioral health issues. On 21 April 2005, prescriptions for Olanzapine (Zyprexa), Trazadone (Desyrel), Paroxetine (Paxil), and Buspirone (Buspar) were filled.  These medications typically address depressive and anxiety symptoms, and Olanzapine may have been used as a mood stabilizer.  Page one of the Report of Mental Health Evaluation, 3 June 2005, provided diagnoses.  The diagnoses were Panic Disorder without Agoraphobia, Depressive Disorder Not Otherwise Specified (NOS), and Personality Disorder NOS with Borderline Features.  Unfortunately, the reverse side is not available, so no narrative, if any, was available to support the diagnoses or recommendations pertaining to administrative separation versus a Medical Evaluation Board (MEB).  The first page of a memorandum for the commander that does not appear to be from Behavioral Health stated, "SM has been diagnosed with a personality disorder, a depressive disorder and a panic disorder without agoraphobia; therefore you are no longer compatible with the military service."  Her DA Form 2807-1 noted a suicide attempt by overdose with "Trazadone, Paxil, and Ativan" in April 2005 with a total of five weeks of inpatient care and one week of outpatient civilian care with "ongoing military Psych care."  None of those records were available for review.  Submitted with her packet, she provided a statement indicating she was raped while on active duty and that led to her depression, anxiety, nightmares, and two suicide attempts.

	b.  Since her discharge, she has received care through the Department of Veterans Affairs.  While available records begin approximately five years after her discharge, the information may be helpful in making a decision regarding her request.  The first note by Social Work Services in 2010 noted a 90% service-connected rating for Depressive Disorder.  An October 2010 note described a history of depression and suicide attempts after military sexual trauma in addition to a prior suicide attempt in high school.  The note reported she received therapy over the previous two years with a polytrauma psychologist.   She reported later in therapy, when they started processing the sexual trauma, the therapist doubted her veracity and so she fired the psychologist.  Her diagnoses in October 2010 were Major Depressive Disorder, rule out PTSD with respect to Military Sexual Trauma, and Borderline Personality Disorder.  The notes indicated she was previously diagnosed with Personality Disorder during care at the VA.

	c.  There is insufficient information available from her time in service to determine the support for a diagnosis of Borderline Personality Disorder.  Her VA notes indicated a suicide attempt in high school, suggesting challenges of some kind arising prior to service.  While no behavioral health notes are available from her time on active duty, the consistency of the personality disorder diagnoses throughout her VA treatment suggests it is a legitimate diagnosis.  That being said, her separation paperwork also included potentially boardable behavioral health conditions.  Records during her time in service were not available to determine whether there was support for the diagnoses and if they significantly impaired her functioning in the Army.

11.  On 8 June 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.  She requested and was granted an extension but she did not submit a rebuttal or any additional evidence.  However, it appears Dr. PJC, Ph.D. a Harvard University psychologist, currently in California, submitted a psychological evaluation report, dated 9 July 2013, on behalf of the applicant.  Dr. PJC states that the applicant had sent her administrative separation packet together with other documents for review.  Dr. PJC states:

* She was unable to find mention by military officials that the applicant was sexually assaulted; it was the applicant who stated she was sexually assaulted
* Sexual assault should never be considered as a personality disorder and before her sexual assault issue, the applicant did not have any of her problems (depression, nightmares, etc)
* PTSD should not be applied as a consequence of sexual assault since PTSD is listed as a mental illness; but, if she were given a psychiatric diagnosis, PTSD would be closer to appropriate than personality disorder
* She also suffered a concussion and the consequences of a concussion are similar to those of various psychological problems, including personality disorder
* The decision to diagnose her with a personality disorder seems subjective given the lack of scientific foundation to make such a diagnosis
* The OTSG's advisory opinion is also unclear, possibly due to the lack of documentation
* There is no evidence that the applicant should have been diagnosed with a personality disorder
* This reason should be removed from her records as the reason for her military separation, ideally to one or more of the serious physical injuries she received during her service

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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.  

13.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of a physical disability.  It provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In pertinent part, it states that although the ability of a Soldier to reasonably perform his or her duties in all geographic locations under all conceivable circumstances is a key to maintaining an effective and fit force, this criterion will not serve as the sole basis for a finding of unfitness.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member may reasonably be expected to perform because of his or her office, rank, grade, or rating.

14.  Army Regulation 635-40 states there are many conditions, including neuropsychiatric disorders, which may be improved sufficiently by treatment to prevent disability, or to significantly decrease it.  If a Soldier unreasonably fails or refuses to submit to medical or surgical treatment or therapy, that portion of the disability that results from such failure or refusal will not be rated.

15.  Army Regulation 635-40 provides for MEBs which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status.  A decision is made as to the Soldier's medical qualifications for retention based on the criteria in chapter 3 of Army Regulation 40-501 (standards of Medical Fitness).  If the MEB determines the Soldier does not meet retention standards, the board will recommend referral of the Soldier to a PEB.

16.  Army Regulation 40-501 governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement).  It outlines medical conditions which may render and individual unfit or which may preclude enlistment and notes that both personality and adjustment disorders will be dealt with through administrative and not medical channels.  Paragraph 3-35 of this regulation states that a history of or current manifestations of personality disorders render an individual administratively unfit.  These conditions render an individual administratively unfit rather than unfit because of physical illness or medical disability.  These conditions will be dealt with through administrative channels, including Army Regulation 635-200.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's requests to change the narrative reason for separation to a medical discharge has been carefully considered.  However, there is insufficient evidence to support this claim.  

2.  With respect to the issue of her personality disorder versus PTSD:

	a.  The applicant underwent a mental status evaluation that led to a diagnosis of a personality disorder.  Accordingly, her chain of command initiated separation action against her.  Her separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

	b.  The available evidence of record contains a mental status evaluation completed on the applicant that confirmed a diagnosis of personality disorder not amounting to disability was made by proper medical authority.  There is some evidence to show that the VA also diagnosed her with a personality disorder.  The record is void of any clear indication that the applicant was suffering from an unfitting PTSD condition at the time of her discharge.  As confirmed by the OTSG advisory opinion, it is possible she may have developed PTSD at a later date; however, there is insufficient evidence to show she met the full criteria for PTSD at the time of her separation and that diagnosis is not recorded in her available record during her time of active service.  There is insufficient medical evidence to support an unfitting PTSD finding at the time of her discharge.  

3.  With respect to her other contended medical conditions, the available evidence shows she underwent a medical exam in conjunction with her separation and she was found medically qualified for retention/separation:

	a.  There is insufficient evidence in her records and she did not provide any substantiating evidence that shows she was medically disqualified for retention or separation.  Nowhere in her records does it show she was issued a permanent physical profile or suffered an illness or an injury that rendered her unable to perform the duties required of her grade or military specialty.

   b.  Even if she suffered an injury or an illness, the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before that service member can be medically separated or retired.

	c.  Furthermore, even if she suffered an injury that did not manifest until years later, a key element of the Army disability system is the existence of a disabling condition at the time of separation.  Again, the Army must find a member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before that member can be medically separated or retired.

4.  In view of the foregoing, absent any evidence of error or injustice in the separation process or medical evidence confirming the applicant was suffering from an unfitting PTSD condition at the time of her discharge, there is an insufficient evidentiary basis to support granting 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)                                         AR20120019264





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ABCMR Record of Proceedings (cont)                                         AR20120019264



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