IN THE CASE OF:	  

		BOARD DATE:	  9 December 2014

		DOCKET NUMBER:  AR20140005809 


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:

* correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) to show she was retired for length of service vice discharged by reason of disability with severance pay
* amendment of Orders 0111-1, dated 21 April 1998, to show a reporting date other than 27 April 1998

2.  The applicant states:

	a.  She should have been allowed to retire from the Army with all of her benefits after serving for 17 years and 11 months and should not have been forced to go through a medical evaluation board (MEB).  She should have received help for her major family stressors such as counseling or help from Army Community Services (ACS) and then allowed to finish up her time.  In addition, Orders 0111-1 should be corrected to show a report date of something other than 27 April 1998.

	b.  On 12 September 1996, while stationed at Fort Drum, NY, she was reported as absent without leave (AWOL) for 1 day.  She then went AWOL again on 18 September 1996 due to major family stressors.  On 25 September 1996, the military police picked her up and she was sent to the Personnel Confinement Facility (PCF), Fort Knox, KY.  

	c.  She was going through a divorce which caused her some distress and the PCF sent her to Ireland Army Community Hospital (IACH), Fort Knox.  IACH referred her to the Department of Veterans Affairs Medical Center (VAMC), Louisville, KY, where she was hospitalized from 30 September to 9 October 1996.  At the time, she was referring to Jesus Christ who she kept talking about and was making reference to the fact that when she got out of the Army she was going to preach the gospel based on her unwavering faith.  

	d.  She refused a mental evaluation and medication as she was not mentally ill because of her faith.  At the time of the MEB, she had 16 years in the Army and never had any issues until she was faced with a divorce that really hurt her.  As a result, she was diagnosed with a psychotic disorder and medically discharged with a 10 percent (%) disability rating.  She received orders to report to her home address on 27 April 1998.  

3.  The applicant provides:

* her DD Form 214
* DA Form 4856 (General Counseling Statement), undated
* DA Form 4384 (Commander’s Report of Inquiry/Unauthorized Absence), dated 10 September 1996
* DA Form 4187 (Personnel Action), dated 16 September 1996
* DA Form 3822 (Report of Mental Status Evaluation), dated 16 September 1996
* DA Form 2823 (Sworn Statement), dated 18 September 1996
* a Terminate Apprehension form, dated 24 September 1996
* VA Form 10-797 (Authorized Absence/Discharge Orders), dated 9 October 1996
* two orders, dated 10 April 1997 and 21 April 1998
* DA Form 3349 (Physical Profile), dated 10 April 1997
* DA Form 3947 (MEB Proceedings), dated 24 July 1997
* Optional Form (OF) 275 (Medical Record Report), dated 8 July 1997
* MEB Addendum, dated 8 October 1997
* page 1 of DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 14 April 1998
* DA Form 638 (Recommendation for Award), dated 22 April 1998

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 30 June 1980 and she held military occupational specialty (MOS) 92G (Food Service Specialist).  On 1 November 1987, she attained the rank/grade of staff sergeant (SSG)/E-6.  On 7 December 1994, she was assigned to Headquarters and Headquarters Company (HHC), Division Support Command (DISCOM), Fort Drum, NY.

3.  On 10 September 1996, she was reported as AWOL from her assigned unit.  On 11 September 1996, she returned to her assigned unit.  On 11 September 1996, she underwent a mental evaluation for separation processing under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, for misconduct.

4.  The examining psychologist noted her behavior was normal, she was fully alert and oriented, her thinking process and thought content were normal, she had the capacity to understand and participate in separation proceedings, and found she did meet retention standards under Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  

5.  On 15 September 1996, she was reported as AWOL from her assigned unit and on 18 September 1996, she was dropped from the rolls (DFR) as a deserter. 

6.  On 24 September 1996, she was returned to military control at Fort Drum and was transferred to Fort Knox, KY, and assigned to the PCF, Fort Knox.  She was counseled by her immediate commander that he was initiating separation action against her under the provisions of Army Regulation 635-200, chapter 14, for misconduct - based on her pattern of going AWOL.

7.  On 30 September 1996, she was hospitalized at the VAMC, Louisville, KY, for exhibiting erratic behavior.  She was released from the VAMC on 9 October 1996.  On 13 November 1996, she was assigned to the Medical Holding Company, U.S. Army Medical Department Activity (MEDDAC), IACH, Fort Knox.

8.  On 10 April 1997, she was given a permanent profile of 4 in the S (psychiatric) category of the PULHES for a psychotic disorder.  She was given limitations of no assignment to isolated areas where definitive psychiatric care was not available and no handling of weapons.

9.  In conjunction with her MEB, a narrative summary (NARSUM) was completed on 8 July 1997, wherein the examining psychiatrist, in part, stated:

	a.  The applicant was referred to IACH, Fort Knox, from the VAMC where she was sent by the PCF, Fort Knox, when it was suspected she had a psychotic disorder.  She had been placed in the PCF after going AWOL on two occasions and was being processed for elimination for disciplinary reasons.  Less than 1 week after arriving at the PCF, her behavior was observed to be erratic; specifically, she was noted to be "lost in a daze at the Post Exchange."

	b.  She had refused to sign for routine items such as linens and appeared paranoid.  She had not eaten for several days and was noted to be "hyper religious," talking about Jesus, and refusing to discuss her personal situation.  On 30 September 1996, she was transferred to the VAMC to rule out schizophrenia.

	c.  Evaluation at the VAMC was difficult as she would not cooperate with any aspects of the evaluation.  She refused any laboratory studies, would not give any historical information, would not take any medication, and would not permit a physical examination.  The most salient feature of her behavioral disturbance was her extreme preoccupation with religious themes.  

	d.  She was appropriately dressed, made good eye contact, sat quietly, and had no bizarre mannerisms.  Her thought process was linear and coherent but there was a pervasive preoccupation with religious themes.  She denied any auditory or visual hallucinations and her cognitive functioning appeared intact.  Her judgment and insight were both poor.  

	e.  She was diagnosed with psychotic disorder, not otherwise specified (NOS), manifested by illusions of grandiosity, paranoid thinking, extreme religious preoccupations, and odd reclusive behavior.  She was determined to be mentally competent for pay purposes and was capable of understanding the nature of and cooperating with the MEB proceedings.

10.  On 10 July 1997, an MEB was convened at IACH, Fort Knox and after consideration of clinical records found she had been diagnosed with a psychotic disorder and she was unfit for further military duty under the provisions of Army Regulation 40-501, chapter 3.  The MEB recommended she be referred to a PEB and indicated she did not desire to continue on active duty.

11.  On 24 July 1997, after being counseled as to her legal rights and options, the applicant concurred with the MEB findings and recommendation. 

12.  In an MEB Addendum, dated 8 October 1997, the examining physician, in part, stated:

	a.  In his opinion, medication was clearly indicated for the applicant's psychotic level delusions, paranoid behavior, and social withdrawal.  She was not on medication because she flatly refused them and refused to take psychological testing or get a computerized tomography (CT) scan of her head.  

	b.  Her first sergeant (1SG) stated she had been unable to competently discharge the simplest duties since her arrival at Fort Knox.  She did not exhibit any aggressive agitation common to some chronically psychotic individuals but was so extremely paranoid, avoidant, and disorganized that it was hard to imagine her functioning stably.  The Medical Holding Company staff had little doubt that she could not reliably negotiate the demands of day-to-day living.  

	c.  She presents the unusual situation of a Soldier who is manifestly impaired but who refuses psychiatric evaluation or treatment.  Unless she was suicidal, homicidal, or gravely endangered, they did not have legal authority to force her to accept psychiatric treatment or evaluation.  The best option was to diagnose her with psychotic disorder NOS and hope she will eventually accept further evaluation and treatment.  Until them, she was not fit for duty and he recommended she be medically separated under the provisions of Army Regulation 40-501.

13.  In an MEB Addendum, dated 2 April 1998, the examining psychiatrist, in part, stated:

	a.  The applicant had continued to function as a Soldier in the Medical Holding Company and her 1SG stated she was currently performing well in a clerical job.  She has attended group therapy on a weekly basis.  The group therapist stated she displayed no evidence of psychosis and her occasional references to her spirituality seemed moderate and appropriate.  She agreed to participate in psychological testing and was competent to make decisions about her medical treatment.  

	b.  She continued to have some degree of religious preoccupation and her presentation was consistent with a diagnosis of psychotic disorder NOS in partial remission.  She continued to refuse to take medication.  She currently had a structured environment and functioned well in the environment.  However, she is vulnerable to relapse in a less structured, more stressful environment.  Her psychotic disorder significantly impaired her ability to perform her military duties and her refusal of medication only increased the vulnerability.  It was likely that a return to full military duty would soon lead to the type of delusions and disorganized behavior she displayed in 1996.

14.  On 17 April 1998, an informal PEB convened at Fort Sam Houston, TX, and confirmed her one unfitting disability of psychotic disorder, NOS, that was in partial remission and rated as mild.  The PEB found because of her psychiatric illness, she was unable to perform the duties of her MOS and prevented her from reasonable performance required by her grade and specialty.  She was rated under the Department of Veterans Affairs Schedule for Rating Disabilities (VASRD) Code 9210 with a 10% disability rating.  The PEB recommended she be separated with severance pay.

15.  On 21 April 1998, after being advised of her legal rights and options, the applicant concurred with the PEB findings and waived a formal hearing of her case.  

16.  Orders 0111-1, dated 21 April 1998, issued by HQ, U.S. Army MEDDAC, Fort Knox, assigned her to XXXX S____ W_____ Road, R_______, KY, (her home address), effective 27 April 1998.  These orders stated she was not required to return to Fort Knox to outprocess and would be discharged in absentia.

17.  She was honorably discharged on 18 May 1998 in the rank of SSG by reason of disability with severance pay in the amount of $49,579.20.  She completed 17 years, 10 months, and 19 days of net active service.

18.  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 physical disability.  It states MEB's/PEB’s 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 qualification for retention based on the criteria in Army Regulation 40-501, chapter 3.

19.  The Army physical profile serial system is based primarily upon the function of body systems and their relation to military duties.  The functions of the various organs, systems, and integral parts of the body are considered.  An individual having a numeric designation of "1" under all factors is considered to possess a high level of medical fitness.  A profile containing one or more numerical designations of 3 signifies the individual has one or more medical condition that may require significant limitations.  A permanent profile of 3 or 4 or would require referral to an MEB.

20.  Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement.  Once a determination of physical unfitness is made, the PEB rates all disabilities using the VASRD.  Ratings can range from 0 percent to 100 percent, rising in increments of 10 percent.

21.  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 rating of at least 30 percent.  Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating at less than 30 percent.

22.  The VASRD is used by the Army and the VA as part of the process of adjudicating disability claims.  It is a guide for evaluating the severity of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service.  This degree of severity is expressed as a percentage rating.  

23.  VASRD Code 9210 pertains to a psychiatric disorder, NOS.  A rating of 10% is assigned in cases of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms that on 10 April 1997 the applicant received a permanent profile of 4 for a psychotic disorder that limited her assignment and stated she could not handle weapons.  Based on her permanent profile, she was appropriately referred to an MEB as required by applicable regulations.  At the time, she refused a psychiatric evaluation or treatment of any kind to include medication.

2.  On 10 July 1997, an MEB found her condition of psychotic disorder was medically unacceptable and did not meet retention standards.  The MEB also indicated the applicant did not want to remain on active duty and recommended she be referred to a PEB.  She concurred with the MEB findings and recommendation.

3.  She subsequently participated in group therapy and psychological testing and did well in a structured environment; her psychotic disorder was found to be in partial remission and considered mild.  However, 1 year after she received a permanent profile she continued to have a preoccupation with religion, refused medication which made her vulnerable to relapse, and her psychotic disorder still significantly impaired her ability to perform her military duties.

4.  On 17 April 1998, the PEB found her unfit for psychotic disorder, NOS, in partial remission that prevented her from performing her military duties.  The PEB rated her under VASRD code 9210 and properly assigned a 10% disability rating based on her condition being mild at that time.  The PEB recommended separation with entitlement to severance pay with a 10% disability rating.  On 21 April 1998, she concurred with the PEB findings and recommendation.

5.  As she was not required to be present at Fort Knox for her outprocessing, Orders 0111-1 appropriately assigned her to her home address effective 27 April 1998.  On 18 May 1998, she was honorably discharged with entitlement to severance pay. 

6.  Notwithstanding her contention that she should have been referred to ACS for the stress she was experiencing, there is no evidence that shows she requested assistance prior to going AWOL.  In addition, the evidence of record confirms once she was diagnosed with a psychotic disorder she was referred for the appropriate treatment but initially declined all treatment.  Had the MEB/PEB not found that she had a medically unfitting condition, she would have been processed for elimination and still not be entitled to a 20-year retirement.

7.  Her physical disability evaluation was conducted in accordance with law and regulations and she concurred with the recommendation of the PEB.  There does not appear to be an error or an injustice in her case.

8.  In view of the foregoing, she is not entitled to 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)                                         AR20140005809





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ABCMR Record of Proceedings (cont)                                         AR20140005809



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