IN THE CASE OF:	   

		BOARD DATE:	  12 December 2013

		DOCKET NUMBER:  AR20130005677 


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 the separation authority and narrative reason for her discharge, which includes the Separation Program Designator (SPD) and Reentry Eligibility (RE) codes, to show she was medically discharged or retired.

2.  The applicant states she was raped by a noncommissioned officer (NCO) and reported the incident to her first sergeant and company commander.

   a.  She was not given the opportunity of transferring to another unit.  She was only given the option of a discharge based on personality disorder.

   b.  The Department of Veterans Affairs (VA) has granted her a 100% disability rating based on military sexual trauma/military sexual assault.
 
3.  The applicant provides copies of her DA Form 3822-R (Report of Mental Status Evaluation), DD Form 214 (Certificate of Release or Discharge from Active Duty), and three letters.

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 enlisted in the Regular Army on 17 September 1986 for a period of 4 years.  She was awarded military occupational specialty 91A (Medical Specialist).

3.  On 20 May 1987, she was assigned to Headquarters and Headquarters Company, 46th Engineer Battalion, 1st Aviation Brigade (Air Assault), Fort Rucker, AL.  She was promoted to specialist four/pay grade E-4 on 1 February 1988.

4.  A DA Form 3822-R shows the Chief of Psychology evaluated the applicant on 24 May 1988 based on a referral from her unit reporting that she is "moody" and "always angry or upset," and she had poor work behavior.

   a.  It shows the applicant was initially seen at Community Mental Health (CMH) as a self-referral on 14 December 1987.  She reported that her inability to control her temper was a major problem.  She then described a history of physical altercations with others beginning as early as junior high school.  In her initial session she reported she was afraid she would lose her temper and physically assault one of the many NCOs she dislikes.  She continued with therapy, but her progress was minimal.

	b.  The chief psychologist provided his diagnosis of the applicant, as follows:

* Axis I:  Alcohol Abuse as manifested by alcohol-related problems
* Axis II:

* Borderline Personality Disorder as manifested by a pervasive pattern of unstable interpersonal relationships characterized by conflicts with classmates and co-workers
* Identity Disturbance as manifested by confusion about self- image
* Affective Instability characterized by intense anger and physical fights
* Impulsiveness characterized by excessive drinking

	c.  He found that there was no evidence of paranoid, homicidal or suicidal ideations, and there were no disorders of thought process or content.
	d.  He noted that Personality Disorders are disqualifying in accordance with Army Regulation (AR) 635-200 (Personnel Separations - Enlisted Separations), chapter 5 (Separation for the Convenience of the Government), paragraph 5-13 (Personality Disorder).

   e.  He concluded that the applicant's behavior represented a life-long pattern of maladaptive reactions to situations and immediate recovery was not expected.  Therefore, he recommended the applicant be separated from the service.

5.  The applicant's commander initiated action to discharge her from the service under the provisions of AR 635-200, chapter 5, paragraph 5-13, due to personality disorder that interferes with assignment or performance of duty.  The applicant was informed of her rights and that the separation authority could direct either an honorable or under honorable conditions discharge.

6.  The applicant consulted with counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to her, and of the effect of a waiver of her rights.

   a.  She requested consulting counsel.

   b.  She indicated that statements in her own behalf were not submitted.

   c.  The applicant and her counsel placed their signatures on the document.

7.  The applicant's company commander recommended the applicant be discharged under the provisions of AR 635-200, chapter 5, paragraph 5-13.  The basis for the recommended action was a CMH evaluation by a psychologist in which it was determined the applicant had a personality disorder.

8.  The separation authority approved the recommendation for discharge of the applicant, directed she be discharged based on personality disorder, and that she be issued an Honorable Discharge Certificate.

9.  The applicant's DD Form 214 shows she was honorably discharged on 
28 June 1988.  She completed 1 year, 9 months, and 12 days of net active service.  It also shows in:

	a.  item 25 (Separation Authority):  AR 635-200, paragraph 5-13;

	b.  item 26 (Separation Code):  "JFX" [Personality Disorder];
	c.  item 27 (Reentry Code):  "RE-3" [Not considered fully qualified for reentry at time of separation, but disqualification is waivable]; and

	d.  item 28 (Narrative Reason for Separation):  "Personality Disorder."

10.  In support of her application, the applicant provides the following documents:

   a.  a letter from Allyson Fish, Military Sexual Trauma (MST) Clinician, Sanford Veterans Center, Sanford, ME, to the Togus VA Regional Office, that shows she has been working with the applicant since 17 May 2011 to address issues surrounding the MST she survived while at Fort Rucker, AL.  The focus of the applicant's treatment has been anger management, distress tolerance skills, arousal, and avoidance symptoms.

    	(1)  The MST clinician described an incident the applicant related to her that occurred in February 1988 when the NCO in charge (NCOIC) of the applicant visited her apartment, raped her, and then threatened her not to tell anyone.  The applicant stated she disclosed what happened to her to a chaplain.

    	(2)  The MST clinician described another incident that the applicant related to her that occurred a few days later at the medical aid station.  The NCOIC sexually assaulted the applicant by touching her.  She reported the incident to her first sergeant and requested a transfer, but it was denied.  She was offered the option of staying in the unit or being honorably discharged.  She chose to be discharged.

    	(3)  The MST clinician noted that the applicant denied meeting with any mental health provider while she was in the U.S. Army.

   b.  a letter from the Togus Regional VA Office, Veterans Service Center, Augusta, ME, dated 26 February 2013, that shows the applicant was granted service connection for left knee surgical scar associated with status post anterior cruciate ligament repair and left knee surgical scar (0%) effective 22 December 2011.  She was also authorized an adjustment to her individual unemployability compensation effective 1 December 2012.
   
   c.  A letter from a National Service Officer, Disabled American Veterans, Augusta, ME, dated 25 February 2013, that shows a review of the most recent VA decision concerning the applicant's claim for benefits revealed a combined evaluation of 80% plus entitlement to benefits at the 100% rate due to unemployability.

11.  AR 40-501 (Standards of Medical Fitness), chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement), paragraph 3-36 (Adjustment Disorders), 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.

12.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-13 provides that a Soldier may be separated for personality disorder, not amounting to disability under AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), when the disorder is so severe that it interferes with assignment to or performance of duty.  The diagnosis of personality disorder must have been established by a psychiatrist or doctoral-level clinical psychologist with necessary and appropriate professional credentials.

13.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30%.  Section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years of service and a disability rated at less than 30%.

14.  Title 38, U.S. Code, sections 310 and 331, permit the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine 
medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered physically unfit for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.  The VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the separation authority, narrative reason for her separation, and SPD and RE codes should be corrected to show she was medically discharged or retired because the VA ganted her a 100% disability rating based on military sexual trauma/military sexual assault.

2.  The applicant's contention and the evidence she provided were carefully considered.

   a.  The applicant provides a letter that contains two incidents she related to the MST clinician that happened to her in the Army more than 33 years ago.  However, there is no such evidence in her Army records.  In fact, the applicant's Army records provide evidence that is at odds with the applicant's assertion to the MST clinician that she did not meet with a mental health provider while she was in the Army.

   b.  During her separation processing, the examining health provider noted the applicant acknowledged her inability to control her temper was a major problem. He found the applicant's behavior represented a life-long pattern of maladaptive reactions to situations and that immediate recovery was not expected.  He recommended separation from the service based on a personality disorder.

   c.  The MST clinician notes that the focus of the applicant's current treatment has been anger management, distress tolerance skills, arousal and avoidance symptoms.

	d.  The applicant stated she was raped by an NCO and reported the incident to her first sergeant and company commander; the MST clinician noted the applicant told her she was raped by the NCO and she reported the incident to a chaplain.  The incident she reported to her first sergeant and company commander was the NCO sexually assaulting her by touching her (not further described).

   e.  Thus, the applicant provides insufficient evidence to support her contention that her administrative discharge was improper and that she should have been medically discharged or retired.

3.  The Army regulation governing the applicant's discharge required that "the diagnosis of personality disorder must have been established by a physician or doctoral-level clinical psychologist with necessary and appropriate professional credentials."  The evidence of record shows that such a diagnosis, that met the criteria for administrative separation, was made by an Army psychologist in the applicant's case.

4.  The applicant's administrative separation under the provisions of AR 635-200, paragraph 5-13, due to personality disorder was in compliance with all requirements of law and applicable regulations with no indication of procedural errors which would have jeopardized her rights.  In addition, the separation authority, narrative reason for separation, and assigned SPD and RE codes were appropriate and equitable.
5.  The evidence of record shows the VA granted the applicant benefits and a combined evaluation of 80% plus entitlement to benefits at the 100% rate due to unemployability.  Both statutory and regulatory guidance provide that the Army rates only conditions determined to be physically unfitting that were incurred or aggravated during the period of service.  Furthermore, the condition can only be rated to the extent that the condition limits the performance of duty.  There is no evidence of record that shows the applicant had an unfitting medical condition during the period of service under review.  The VA (and some other Government agencies) on the other hand, provides compensation for disabilities which it determines were incurred in or aggravated by active military service, including those that are detected after discharge, and which impair the individual's industrial or social functioning.

6.  In view of all of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20130005677



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ABCMR Record of Proceedings (cont)                                         AR20130005677



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