IN THE CASE OF:	

		BOARD DATE:	    26 September 2013

		DOCKET NUMBER:  AR20130002754 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was medically retired under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) by reason of "Disability, Mental or Physical Condition" rather than discharged under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17 by reason of "Condition, Not a Disability." 

2.  The applicant states he was diagnosed with Chronic Reoccurring Readjustment Disorder while in the service and within 2 years of discharge, he was diagnosed with Bipolar Disorder.  He believes the injustice that occurred was not being given a Medical Evaluation Board (MEB) or Physical Evaluation Board (PEB) so he could have been medically retired.

3.  The applicant provides:

* DD Form 214
* DA Form 2-1 (Personnel Qualification Record - Part II)
* Enlisted Record Brief
* DD Form 2648 (Preseparation Counseling Checklist)
* SGLV-8286 (Servicemembers' Group Life Insurance Election and Certificate)
* Department of Veterans Affairs (VA) Rating Decision


COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests correction of Item 28 (Narrative Reason for Separation) of the applicant's DD Form 214 to note he was discharged for a disability, mental or physical condition.

2.  Counsel states while in the service, the applicant was diagnosed with Chronic Adjustment Disorder which has subsequently been diagnosed as Bipolar Disorder.  The applicant has also been granted service-connection through the VA for Bipolar Disorder which manifested while he was active duty military.

3.  Counsel provides no additional evidence.

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 complete records - specifically his separation packet and mental status evaluation - are not available for review with this case. 

3.  The available records show he enlisted in the Regular Army on 4 March 1996 and he held military occupational specialty 52C (Utility Equipment Repairer).  Upon completion of initial entry training, he was assigned to Fort Hood, TX.  He was advanced through the enlisted ranks to the rank/grade of specialist/E-4. 

4.  Items A30 (Physical Profile Factors) and A31 (Physical Category) of his Enlisted Record Brief, dated 20 March 2001, indicate he had no diagnosed physical or mental limitations as of the date of the form.  The applicant's record is void of any evidence and he has not provided any evidence showing he was diagnosed with any unfitting mental or physical condition while serving on active duty.

5.  He was honorably discharged on 15 August 2001 after completing 5 years, 5 months, and 12 days of active service.  His DD Form 214 shows he was discharged under the provisions of paragraph 5-17 of Army Regulation 635-200 by reason of a Physical Condition, Not a Disability.  His DD Form 214 shows in:

* item 23 (Type of Separation), "Discharge"
* item 24 (Character of Service), "Honorable"
* item 26 (Separation Code), - "JFV"
* item 28, "Physical Condition, Not a Disability"

6.  The applicant provides documentation which shows the VA determined a previous rating decision contained a clear and unmistakable error.  As a result, his case was reopened and it was determined:

	a.  There was no evidence of the applicant having a mental disorder prior to enlistment.

	b.  He was diagnosed with a mental disorder (Chronic Adjustment Disorder) during service when hospitalized.

	c.  Post-service medical records reveal he is disabled due to bipolar disorder.

	d.  His claim for service connection for bipolar disorder was received on 19 May 2009.  The claim was denied by rating decision on 4 September 2009 without benefit of examination or medical opinion as required under law.

	e.  He was discharged from service due to a chronic mental disorder (Adjustment Disorder, subsequently diagnosed as Bipolar Disorder).  The rater determined that this condition was a congenital or developmental defect which was unrelated to military service and not subject to service-connection. 

	f.  VA examination and medical opinion, dated 6 July 2012, links diagnosis of Bipolar Disorder to Chronic Adjustment Disorder that occurred during military service.

	g.  Rating decision, dated 4 September 2009, that denied service-connection for Bipolar Disorder was clearly and unmistakably erroneous.  Therefore, service-connection is established with an evaluation of 100 percent, effective 19 May 2009, the date the claim was received for this condition.

7.  Army Regulation 635-200, 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, which includes those members suffering from a disorder manifesting disturbances of perception, thinking, emotional control, or behavior sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired.

8.  Army Regulation 635-40 sets forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Paragraph 3-1 (Standards of unfitness because of physical disability) of this regulation, in pertinent part, provided that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability.

9.  Paragraph 3-36 (Adjustment Disorders) of Army Regulation 40-501 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.

10.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service.  However, an award of a higher VA rating does not establish error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  

11.  Army Regulation 635-5-1 (SPD Codes), in effect at the time of the applicant's separation, provided 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 stated that the SPD code of JFV was the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, paragraph 5-17, for "Condition, Not a Disability" when a service initiated discharge is directed when a condition, not a physical or mental disability, interferes with the performance of duty.

12.  The Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association provides a common language and standard criteria for the classification of mental disorders.  The DSM evolved from systems for collecting census and psychiatric hospital statistics, and from a United States Army manual.  Revisions since its first publication in 1952 have incrementally added to the total number of mental disorders, although also removing those no longer considered to be mental disorders.  The DSM is comparable to a dictionary; mental illness concepts and definitions change over time, just as words do.  As data confirming hypotheses of mental illness is replicated, concepts and definitions of mental illness change.  It is used or relied upon by clinicians, researchers, psychiatric drug regulation agencies, health insurance companies, pharmaceutical companies, the legal system, and policy makers.  The DSM provides:

	a.  Adjustment disorders relate to a significantly more difficult adjustment to a life situation than would normally be expected considering the circumstances. While it is common to need months and perhaps even years to feel normal again after the loss of a long-time spouse, for instance, when this adjustment causes significant problems for an abnormal length of time, it may be considered an adjustment disorder.

	b.  There are definitely varying degrees of Bipolar Disorder and it is not difficult to misdiagnose due to it's similarity to other mood disorders.  If the illness is not severe, often times medication and therapy can do very well in terms of treatment.  And, life experience, strong support, and an openness to improve can be enough sometimes to make a difference in outcome.  Bipolar Disorder has been broken down into two types:

		(1)  Bipolar I:  For a diagnosis of Bipolar I disorder, a person must have at least one manic episode.  Mania is sometimes referred to as the other extreme to depression.  Mania is an intense high where the person feels euphoric, almost indestructible in areas such as personal finances, business dealings, or relationships.  They may have an elevated self-esteem, be more talkative than usual, have flight of ideas, a reduced need for sleep, and be easily distracted.  The high, although it may sound appealing, will often lead to severe difficulties in these areas, such as spending much more money than intended, making extremely rash business and personal decisions, involvement in dangerous sexual behavior, and/or the use of drugs or alcohol.  Depression is often experienced as the high quickly fades and as the consequences of their activities becomes apparent, the depressive episode can be exacerbated. 

		(2)  Bipolar II:  Similar to Bipolar I Disorder, there are periods of highs as described above and often followed by periods of depression.  Bipolar II Disorder, however is different in that the highs are hypo manic, rather than manic.  In other words, they have similar symptoms but they are not severe enough to cause marked impairment in social or occupational functioning and typically do not require hospitalization in order to assure the safety of the person. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the facts and circumstances that led to his discharge action.  However, his record contains a duly-constituted DD Form 214 that shows he was discharged on 15 August 2001 under the provisions of paragraph 5-17 of Army Regulation 635-200 by reason of a physical condition, not a disability.  It appears that condition was adjustment disorder.

2.  The fact that a VA medical authority diagnosed the applicant with bipolar disorder is not disputed.  However, this diagnosis does not invalidate the diagnosis of adjustment disorder previously determined by a competent military medical authority because the conditions are not mutually exclusive.  The applicant could in fact suffer from both conditions.  It must be presumed that the applicant's diagnosis of adjustment disorder was determined by competent military medical authorities based upon his symptoms and the medical evidence that was available at the time.

3.  In the absence of any medical evidence to the contrary, administrative regularity is presumed in the applicant's separation process.  It must also be presumed that his discharge was administratively correct and in conformance with applicable regulations with no indication of any violations of his rights.  His administrative discharge under the provisions of paragraph 5-17 of Army Regulation 635-200 for a physical condition, not a disability appears to be proper. 

4.  His narrative reason was assigned based on the fact that he was discharged under the provisions of paragraph 5-17 of Army Regulation 635-200.  Absent the condition, it appears there was no fundamental reason to process him for discharge.  The underlying reason for his discharge appears to be his Chronic Adjustment Disorder.  The only valid narrative reason for separation permitted under that paragraph is "Physical Condition, Not a Disability" and the appropriate SPD code associated with this discharge is JFV, which is correctly listed on his DD Form 214. 

5.  In view of the circumstances in this case, there is insufficient evidence 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)                                         AR20130002754





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ABCMR Record of Proceedings (cont)                                         AR20130002754



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