IN THE CASE OF:    

		BOARD DATE:  4 September 2014	  

		DOCKET NUMBER:  AR20130022237 


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:

	a.  Correction of item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to read "Schizoid Paranoia" rather than a "Personality disorder."

	b.  Initiation of an investigation into the assaults that he endured at the hands of his drill sergeant and members of his unit.

	c.  Information on how to obtain a "QVC Report" prepared by a doctor at the Department of Veterans Affairs (VA) Center located in Bakersfield, CA on 21 January 2013.

2.  The applicant states, in effect, that:

	a.  His condition was misdiagnosed as a personality disorder.

	b.  He was tortured during basic training by his drill sergeant who forced him to stand against a wall and stab knives into the wall by his head.

	c.  He was denied graduation from initial entry training and his diplomas and certificates of completion were stolen.

	d.  He was assaulted by his first sergeant (1SG) and other members of his unit during an incident in which he was jumped from behind.  He still bears a scar from his 1SG slamming his head into a door frame at the armory.

	e.  He was abused mentally and physically to the point of a mental breakdown.

	f.  As soon as he became ill he was discharged instead of being afforded treatment.

	g.  Soldiers who have been diagnosed with mental illness should receive treatment until they are stabilized prior to being discharged.  If he had been stabilized prior to being discharged his life would be different.

	h.  Even though he is almost 50 years of age he can still assist the Army, but that will never happen.

3.  The applicant provides 18 pages of self-authored statements.

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 records show he enlisted in the Regular Army on 26 May 1987.  The highest rank/pay grade he attained during his military service was private (PV2)/E-2.  However, he held the rank/pay grade of private (PV1)/E-1 at the time of his discharge.

3.  His DA Form 2-1 (Personnel Qualification Record - Part II) shows he successfully completed 13 weeks of One Station Unit Training (OSUT) while assigned to Company A, 2nd Battalion, 2nd Training Brigade, U.S. Army Training Center, Fort Benning, GA for military occupational specialty (MOS) 11B (Infantryman).

4.  Headquarters, U.S. Army Infantry Training Center/OSUT, Fort Benning, GA, Orders 155-7 show he was awarded MOS 11B, effective 3 September 1987, based upon successful completion of OSUT.

5.  Upon completion of OSUT he was assigned to Fort Riley, KS.

6.  On 14 April 1988, while holding the rank/pay grade of PV2/E-2, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for violating Article 91, UCMJ by being disrespectful in language toward a senior noncommissioned officer (NCO) by saying to him "F*** you," or words to that effect.  His punishment was reduction to the rank/pay grade of PV1/E-1, a forfeiture of $156 pay for 1 month, 14 days of extra duty, and 14 days of restriction.

7.  On 13 June 1988, he underwent a mental status evaluation at his commander's request because he was being considered for discharge for the good of the service.  The military clinical psychologist remarked that his behavior was normal, he was fully alert and oriented with a clear thinking process and normal thought content.  He also noted the applicant's mood or affect was depressed and his memory was fair.

	a.  The psychologist opined that the applicant had the mental capacity to understand and participate in administrative proceedings; he was mentally responsible; he met the retention requirements of chapter 3, Army Regulation  40-501 (Standards of Medical Fitness) and he was medically cleared for separation processing.

	b.  The psychologist remarked that the applicant was experiencing an adjustment reaction to the reasonable demand of the military and did not possess the essential "characterologic" and emotional strength necessary to be a continuously effective Soldier.

	c.  The psychologist recommended that the applicant be considered for administrative action as deemed appropriate by the command, to include separation from the service.

8.  The applicant's record contains two DA Forms 2823 (Sworn Statement) rendered on 14 June 1988 wherein two Soldiers related their accounts of events that had transpired earlier that day.

	a.  Corporal (CPL) B stated that while he was performing Charge of Quarters (CQ) duty at the company, they received the applicant from the Intensive Care Unit (ICU) and they were instructed that he was restricted to the barracks, but he could go and get his medication and he was to be accompanied by an escort.

		(1)  CPL B provided the applicant a room, linen and a bed.  He then told the applicant that they would work on getting his medication after he completed a telephone conversation.  The applicant stated his buddy's car had broken down and he could no longer deliver his medication.  CPL B offered to have his medication picked up and requested the buddy's phone number in order to coordinate the exchange.  The applicant informed him that he had forgotten the address for the location of his medication and his buddy's phone number; they would have to take him to pick it up.

		(2)  The applicant demanded to call 9-BOSS to report that he was being denied the right to get his medication.  After he called 9-BOSS, CPL B gave another Soldier $2.00 for gas and asked him to take the applicant to get his medication.  While enroute, the applicant requested to return to the company area, without his medication.

		(3)  When they returned to the company CPL B had the applicant sit in front of the CQ desk so he could observe him.  After a while, the applicant complained of chest pain and difficulty and said he wanted to go on sick call.  The company commander advised CPL B to use his judgment and if the applicant started showing signs of needing to go to the hospital to keep the commander informed.  When CPL B informed the applicant that he was not going to be sent to the hospital until he needed to go, he became upset and wanted to call the military police (MP), stating they could not stop him from going to the hospital.

		(4)  CPL B then instructed the applicant to accompany him to the battalion headquarters so the Battalion Staff Duty NCO (SDNCO) could handle the situation.  When they arrived, the SDNCO instructed the applicant to take a seat and the applicant responded by stating he was going to the hospital.  The SDNCO told the applicant that he would not go to the hospital until he needed to.

		(5)  The applicant got up from his seat and started toward the door and said that he would walk to the hospital.  The SDNCO told the applicant to stop and he took off out the door.  The SDNCO followed him out the door and grabbed him by his collar.  At this point, the applicant lost control, started crying, swung his arms, jumped around, and went wild.



		(6)  The SDNCO instructed CPL B to call the company commander.  By this time, the SDNCO's runner, Specialist (SPC) B, was outside and they were trying to calm the applicant down.  SPC B grabbed him from behind in a half-Nelson position in an attempt to restrain him.

		(7)  The applicant then fell to the ground and started crying more and complaining that they had hurt his back.  They left him on the ground and attempted to identify which part of his back hurt, but the applicant said his whole back hurt.

		(8)  The unit medics could not do anything to resolve the applicant's back pain, so an ambulance was dispatched to take him to the hospital.  When the hospital said the applicant could return to duty he was reluctant and still complained of pain.  A nurse assured CPL B that the applicant was cleared to depart and he instructed him to put on his shirt.  The applicant began to do so very slowly (emphasis added).  When CPL B attempted to help the applicant put on his shirt, the applicant attempted to throw him on the floor.  The applicant did not want to ride back to the company area with CPL B and the escort, so the MPs brought him back.

	b.  SPC B was performing duty as the runner for the battalion SDNCO on the evening of 14 June 1988 when CPL B brought the applicant to battalion headquarters to see the SDNCO.

		(1)  The applicant told the SDNCO that he needed to go to the hospital and the SDNCO told him to sit down and relax.  The applicant then jumped up, said he would walk to the hospital and started out the door.  The SDNCO ran out the door and grabbed the applicant by his arm.  Then the applicant started jumping around and fell on the ground acting like a mad man.

		(2)  SPC B got behind the applicant and placed him in a full-Nelson position.  The applicant started jumping around in an effort to break the hold then he started crying and went into a sitting position.  He said that his back hurt, so SPC B helped him lay down.

		(3)  The SDNCO tried talking to the applicant, but all he would say was that his back hurt.  They consulted the unit medics and ended up calling for an ambulance to transport the applicant to the hospital.

9.  The applicant's record contains a DA Form 4187 (Personnel Action) which shows he departed his unit in an absent without leave (AWOL) status from 14 to 15 June 1988.

10.  On 15 June 1988, he underwent another mental status evaluation for an apparent personality disorder.  The military clinical psychologist remarked that his behavior was suspicious, his level of alertness was dull, he was fully oriented with a clear thinking process, and normal thought content.  He also noted that the applicant's mood or affect was depressed and his memory was fair.

	a.  The psychologist opined that the applicant had the mental capacity to understand and participate in administrative proceedings; he was mentally responsible; he met the retention requirements of chapter 3, Army Regulation
40-501; and he was medically cleared for separation processing.

	b.  The psychologist diagnosed the applicant as having an atypical personality disorder with schizoid features.

	c.  The psychologist remarked that the diagnosis represented a characterological and behavioral disorder under the provisions of Army Regulation 635-200 (Enlisted Separations), paragraph 5-13.  This condition is a deeply ingrained maladaptive pattern of behavior of long duration which interferes with the Soldier's ability to perform duty.  The disorder and the problems presented by the Soldier are not amenable to hospitalization, treatment, transfer, disciplinary action, training, or reclassification within the military system.  The condition is so severe that the Soldier's ability to function effectively in a military environment is significantly impaired.  Efforts to rehabilitate or develop the Soldier into a satisfactory member of the military will not be effective.

	d.  The psychologist recommended that the applicant be administratively eliminated from the military as expeditiously as possible.  He opined that the applicant met the criteria for Personality Disorder with Schizoid and Paranoid features; therefore, his unit should consider an administrative separation in accordance with the provisions of Army Regulation 625-200, paragraph 5-13.  It was likely he would continue to present with emotional and behavioral difficulties that reflect a long-standing pattern of difficulties.

	e.  The psychologist concluded that the applicant possessed great potential for being an embarrassment to his unit.  His underlying personality disorder was severe, chronic and acute (in full force at this time).  Recommend most expeditious discharge possible.


11.  The applicant's record contains DA Forms 4187 which show he:

* departed his unit in an AWOL status on 24 June 1988
* was apprehended by civilian authorities on 15 July 1988
* was returned to the control of military authorities on 19 July 1988 after 5 days of confinement
* was returned to his unit of assignment on 21 July 1988

12.  The applicant's record contains a DA Form 4856 (General Counseling Form) which shows he was counseled by his company commander on 28 July 1988.  The commander stated:

"On 14 June 1988 after you returned from AWOL status and a visit to the psychiatric ward of Irwin Army Hospital, and after I talked to doctors and the battalion commander, I restricted you to the barracks for your own safety.  Between the time that I personally turned you over to the CQ at 1930 hours and approximately 2100 hours when I saw you again, I received numerous phone calls from the CQ and then the battalion SDNCO stating that they were having difficulties in restraining you.  When the SDNCO's runner held you one time you fell to the ground and pretended to have a severely injured back.  An ambulance crew, several MPs and doctors and nurses at the emergency room wasted their time denying your lie."

13.  To ensure a thorough understanding, the commander informed the applicant that failure to comply with the training standards or other acts in violation of Army Regulations, UCMJ, civil law or the customs and traditions of the Army in general would result in appropriate measures being taken, including a recommendation that he be eliminated from the service under the provisions of Army Regulation 635-200.  The applicant was advised of the various characterizations of service that may accompany such separation and of the probable effects of receiving a discharge under honorable conditions (General) or under other than honorable conditions, in terms of both VA and other benefits as well as prejudice in civilian life in general.

14.  On 28 July 1988, the applicant accepted NJP under the provisions of Article 15, UCMJ for violating Article 86, UCMJ by departing his unit in an AWOL status on 14 June 1988.


15.  The applicant's record contains a DA Form 4856 which shows he was counseled by his company commander regarding his:

* receipt of an Article 15 on 14 April 1988 for being disrespectful toward an NCO
* receipt of an Article 15 on 14 June 1988 for going AWOL
* receipt of general counseling for disobeying a direct verbal command by attempting to break restriction
* Report of Mental Status Evaluation, dated 15 June 1988, recommending discharge under the provisions of Army Regulation 635-200, paragraph    5-13

16.  To ensure a thorough understanding, the commander again informed the applicant that failure to comply with the training standards or other acts in violation of Army Regulations, UCMJ, civil law or the customs and traditions of the Army in general would result in appropriate measures being taken, including a recommendation that he be eliminated from the service under the provisions of Army Regulation 635-200.  The applicant was advised of the various characterizations of service that may accompany such separation and of the probable effects of receiving a discharge under honorable conditions (General) or under other than honorable conditions, in terms of both VA and other benefits as well as prejudice in civilian life in general.

17.  The applicant's record contains a DA Form 4856, dated 29 July 1988, which shows he was counseled by his company commander for being AWOL from
24 June 1988 until he was apprehended on 15 July 1988.  He advised the applicant that he would be discharged from the Army under the provisions of Army Regulation 635-200, paragraph 5-13.

18.  On 4 August 1988, the applicant accepted NJP under the provisions of Article 15, UCMJ for violating Article 86, UCMJ, by departing his unit in an AWOL status from 24 June 1988 until he was apprehended on 15 July 1988.

19.  The applicant's immediate commander notified him of his intent to initiate separation action against him under the provisions of paragraph 5-13 of Army Regulation 635-200 by reason of an atypical personality disorder with schizoid features.  The commander also noted that he had been AWOL twice and received an Article 15 for being disrespectful toward an NCO.  The commander stated he was recommending that the applicant receive an under honorable conditions characterization of service.


20.  The applicant acknowledged receipt of the notification of his pending separation action and he was subsequently advised by counsel of the basis for the contemplated action to separate him for a personality disorder under the provisions of paragraph 5-13 of Army Regulation 635-200.  He elected to waive his rights for consideration of his case by an administrative separation board, personal appearance before an administrative separation board, consulting counsel, and to be represented by counsel.  He also elected not to submit a statement in his own behalf. 

21.  His immediate commander initiated separation action against him under the provisions of paragraph 5-13 of Army Regulation 635-200 by reason of personality disorder.  The commander remarked that he was diagnosed with an atypical personality disorder with schizoid features.  The commander also noted that he had been AWOL twice and received an Article 15 for being disrespectful toward an NCO.  The commander noted that the applicant had been examined by a psychologist on three separate occasions and was diagnosed as not possessing the essential strength to be an effective Soldier.  The applicant's intermediate commander recommended approval of his separation with a general discharge under honorable conditions.

22.  On 12 August 1988, the separation authority approved the proposed separation action against the applicant in accordance with paragraph 5-13 of Army Regulation 635-200 and directed that his service be characterized as honorable.

23.  On 18 August 1988, he was discharged accordingly.  His DD Form 214 shows he completed 1 years, 2 months, and 2 days of creditable active service during this period.  The form also contains the following entries:

* item 25 (Separation Authority) shows the entry "Army Regulation 635-200, chapter 5-13"
* item 26 (Separation Code) shows the entry "JFX"
* item 28 shows the entry "Personality disorder"

24.  The applicant's record is void of any evidence and he has not provided any evidence to substantiate his claim that he was either tortured by his drill sergeant or assaulted by his 1SG or other members of his unit.

25.  Army Regulation 635-200 provides 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 Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), 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.

26.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) states that the SPD codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty.  The "JFX" SPD code is the correct code for members separating under the provisions of paragraph 5-13 of Army Regulation 635-200 by reason of personality disorder.

27.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  Paragraph 2-11 contains guidance on ABCMR hearings and it states that applicants do not have a right to a hearing before the ABCMR.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his narrative reason for separation should be corrected.

2.  The evidence also shows he underwent mental status evaluations and the psychologist opined that he met the criteria for Personality Disorder with Schizoid features and it was likely he would continue to present with emotional and behavioral difficulties that reflect a long-standing pattern of difficulties.  Accordingly, he was discharged in accordance with the provisions of paragraph 
5-13 of Army Regulation 625-200.

3.  The evidence of record shows his separation action was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would have jeopardized his rights.  The discharge proceedings were conducted in accordance with the law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service.  

4.  The applicant's narrative reason for separation was assigned based on the fact that he was discharged under the provisions of paragraph 5-13 of Army Regulation 635-200 for a personality disorder.  Absent this condition, there was no fundamental reason to process him for a discharge.  The only valid narrative reason for separation permitted under this paragraph and its corresponding SPD code is "Personality disorder."  Therefore, he received the appropriate narrative reason for separation.

5.  As for the applicant's request for the initiation of an investigation into the assaults that he endured at the hands of his drill sergeant and members of his unit, his record contains the aforementioned sworn statements regarding the incident which led to him being restrained and allegedly sustaining a back injury.
Aside from that, his record is void of any evidence and he has not provided any evidence to substantiate his claim that he was either tortured by his drill sergeant or assaulted by his 1SG or other members of his unit.  

6.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence and he has failed to do so.

7.  The applicant also requested information on how to obtain a "QVC Report" prepared by a doctor at the VA Center located in Bakersfield, CA on 21 January 2013.  In view of the fact that this request is not within the purview of this Board, the applicant is advised to contact the VA Center directly at the following address:  Bakersfield Vet Center, 1110 Golden State Avenue, Bakersfield, CA  93301; or telephonically at:  (661) 323-8387 or (877) 927-8387.

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)                                         AR20130022237



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ABCMR Record of Proceedings (cont)                                         AR20130022237



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