IN THE CASE OF:  	  

		BOARD DATE:  16 December 2014	  

		DOCKET NUMBER:  AR20140006637 


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, through her Member of Congress, reconsideration of her previous request for correction of the separation authority and narrative reason for separation, which includes the Separation Program Designator and the Reentry (RE) Code on her DD Form 214 (Certificate of Release or Discharge from Active Duty), from "Personality Disorder" to "Medical Separation." 

2.  The applicant's Member of Congress states on behalf of the applicant: 

	a.  The Board's original denial seems to be based in part on the fact that the applicant's personnel file is silent on the sexual assault.  She is a survivor of Military Sexual Trauma (MST) and she receives 100 percent service-connected disability compensation from the Department of Veterans Affairs (VA).  She reported that she was sexually assaulted; she notified the chaplain who recommended she notify the unit first sergeant.  After she reported the incident, she was immediately separated by reason of personality disorder.

	b.  Given that, according to DOD, the significant majority of sexual assaults go unreported, and given her service-connected disability for post-traumatic stress disorder (PTSD), the reason for separation should change.  The U.S. Court of Federal Appeals for the Federal Circuit recently held in "AZ vs Shinseki" that the VA may not rely on a veteran's failure to report an in-service sexual assault to military authorities as pertinent evidence that the sexual assault did not occur."  The Court also held that the absence of a report of unreported sexual assault is too ambiguous to have probative value; thus, the evidence of record is not pertinent evidence one way or another to that determination.  In sum, basic evidentiary principles preclude treating the absence of a record of an unreported sexual assault as evidence of the non-occurrence of the assault. 

	c.  While the aforementioned decision addresses the VA's disability claims process of victims of MST, he believes the Court's insistence regarding the absence of record in sexual assault cases can and should apply in the applicant's case in front of the Army Discharge Review Board (i.e., the Army Board for Correction of Military Records (ABCMR)).  She has been diagnosed by the VA as suffering from PTSD which conflicts with the personality disorder diagnosis the Army assigned her at separation.  The VA has not continued or diagnosed her with a personality disorder.  Moreover, an assigned personality disorder upon separation (after she attempted to report the sexual assault) calls into question the presumption of soundness she was actually granted, as the Army found her fit for duty prior to enlistment and a personality disorder would have had to predate military service.  

	d.  In light of the VA disability rating related to sexual assault and the Federal Court's decision, the Member of Congress requests reconsideration of the applicant's case and removal of the personality disorder from her DD Form 214. 

3.  The applicant and/her Member of Congress did not provide any evidence. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130005677, on 12 December 2013.

2.  The applicant's Member of Congress provides a new argument which was not previously considered.  Therefore, it is considered new evidence and as such warrants consideration by the Board. 

3.  The applicant enlisted in the Regular Army on 17 September 1986 and she held military occupational specialty (MOS) 91A (Medical Specialist). She was advanced to E-4 on 1 February 1988.  

4.  On 24 May 1988, following a report from her commander that she was "moody" and "always angry or upset," she underwent a mental status evaluation at Fort Rucker, AL.   This evaluation indicated that:

	a.  The applicant was initially seen at the Community Mental Health at Fort Rucker on 14 December 1987.  She reported that her inability to control her temper was a major problem.  She described a history of physical altercations with others beginning as early as junior high school.  She reported in the initial session that she was afraid she would lose her temper and physically assault many of the NCOs she disliked.  She continued with therapy but her progress was minimal.  The chief of psychology diagnosed her as follows: 

* Axis I:  Alcohol Abuse, manifested by alcohol-related problems 
* Axis II:  Borderline Personality Disorder, manifested by a pervasive pattern of unstable interpersonal relationships characterized by conflicts with classmates and coworkers; Identity Disturbance, manifested by confusion about self-image; Affective Instability characterized by intense anger and physical fights; and Impulsiveness characterized by excessive drinking 

	b.  During the evaluation, the applicant stated that none of the people at her job liked her.  They said she talked too much.  She said her friends told her she was too aggressive.  She described two relationships that terminated shortly after they began.  She stated each relationship resulted in physical altercations when conflict emerged.  She described fear of being alone and therefore feels angry when things begin to fall apart.  Unit personnel reported that she had a tendency to discuss her social life extensively, in particular her sex life.  She was said to graphically describe details of sexual encounters. 

	c.  There was evidence suggesting she abused alcohol.  She reported she drank 4 to 5 beers per weekend.  She also reported she was arrested on 4 March 1988 for driving under the influence.  While intoxicated that evening, a friend accused her of taking money from her pocketbook and after checking, the applicant did indeed discover the money.  Recently, she came under investigation for revealing the identity of an AIDS patient.  The applicant reported that U.S. Army Criminal Investigation Command staff told her that 4 people reported that she revealed this information while under the influence of alcohol. 

	d.  Her relationship with coworkers was poor.  She reported that two months earlier she physically assaulted another service member for putting a finger in her face and pushing her.  Although the incident occurred off post, she reported that she received 7 days of extra duty.  She also stated she filed a sexual harassment charge against an NCO but she was unable to find others to corroborate her claim.  

	e.  The psychologist found no evidence of paranoid, homicidal or suicidal ideation and there were no disorders of thought process or content.  Her behavior represented a life-long pattern of maladaptive reactions to situations and immediate recovery was not expected.  She was recommended for separation under the provisions of paragraph 5-13 of Army Regulation 635-200 (Enlisted Personnel Separations).

5.  On 31 May 1988, the immediate commander notified the applicant of his intent to initiate separation action against her under the provisions of paragraph 5-13 of Army Regulation 635-200 by reason of a personality disorder.  The immediate commander cited that his recommendation was based on the doctor's recommendation that she had a personality disorder incompatible with military service.  The immediate commander recommended an honorable discharge.

6.  The applicant acknowledged receipt of the separation memorandum and she was offered an opportunity to consult with counsel.  She was advised of the basis for the contemplated separation action and its effect, of the rights available to her and the effect of any action taken by her in waiving her rights, and of the type of discharge and its effect on further enlistment or reenlistment.  She was advised of the criteria for consideration of her case by an administrative separation board and a personal appearance before a board; however, she was not qualified because she had less than 6 years of total service. 

7.  Following her acknowledgement and consult with counsel, the immediate commander initiated separation action against her in accordance with paragraph 5-13 of Army Regulation 635-200.  The immediate commander stated that the applicant had been diagnosed with a personality disorder.  Her behavior represented a life-long pattern of maladaptive reaction to situations and immediate recovery was not expected.  

8.  Her intermediate commander recommended approval of the recommendation for separation under the provisions of Army Regulation 635-200, paragraph 5-13 with an honorable discharge.  He stated that rehabilitation would not be in the best interests of the Army as it would not produce a quality Soldier.  She had no potential for useful service in the future under conditions of full mobilization and she should not be transferred to the Individual Ready Reserve. 

9.  The separation authority approved the proposed separation action against the applicant in accordance with paragraph 5-13 of Army Regulation 635-200 and directed she receive an honorable character of service.  On 28 June 1988, the applicant was accordingly discharged.  Her DD Form 214 shows she completed 1 year, 9 months, and 12 days of creditable active service.  It also shows in: 

* item 25 (Separation Authority) - Army Regulation 635-200, paragraph 5-13
* item 26 (Separation Code) - JFX
* item 27 (RE Code) - RE-3
* item 28 (narrative Reason for Separation - Personality Disorder
10.  On 12 December 2013, the Board considered her case but the evidence p[resented did not demonstrate the existence of an error or an injustice.  As such, the Board denied her request. 

11.  Army Regulation 635-200 provides for separation of enlisted personnel.  Paragraph 5-13 provides the criteria for discharge because of a personality disorder.  It states that a Soldier may be separated for personality disorders, not amounting to disability under Army Regulation 635-40, which interferes with assignment to or performance of duty.  The diagnosis of a personality disorder must have been established by a physician trained in psychiatry and psychiatric diagnosis.  Separation because of a personality disorder is authorized only if the diagnosis concludes the disorder is so severe that the Soldier's ability to function effectively in the military environment is significantly impaired.

12.  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 SPD code of JFX is the correct code for Soldiers separating under paragraph 5-13 of Army Regulation 635-200 by reason of a personality disorder.

13.  Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve.  This regulation prescribes basic eligibility for prior-service applicants for enlistment.  That chapter includes a list of Armed Forces RE codes including Regular Army RE codes.  

* An RE-1 applied to persons who completed an initial term of active service who were fully qualified for enlistment when separated
* An RE-3 applied to persons who were not qualified for reentry or continuous service at the time of separation, but the disqualification was waivable

14.  The SPD/RE Code Cross Reference Table provides instructions for determining the RE code for Active Army Soldiers and Reserve Component Soldiers.  This cross reference table shows the SPD code and a corresponding RE code.  The table in effect at the time of her discharge shows the SPD code of "JFX" has a corresponding RE code of "3."

15.  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.

16.  Army Regulation 40-501 (Standards of Medical Fitness) 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 the regulation (in effect at the time of her separation) 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.

17.  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 of less than 30 percent.

18.  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 on the part of the Army.  The Army rates only conditions determined to be physically unfitting at the time of discharge which disqualify the Soldier from further military service.  The Army disability rating is to compensate the individual for the loss of a military career.  The VA does not have authority or responsibility for determining physical fitness for military service.  The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability.  As a result, the VA may award a rating even though the Army did not find the individual to be unfit.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.

19.  The U.S. Court of Appeals for the Federal Circuit, AZ vs. Shinseki, was decided on 30 September 2013.  

	a.  Veterans AZ and AY filed claims with the VA seeking disability compensation for PTSD alleged to have resulted from sexual assaults that occurred during service.  The veterans’ service records do not reflect any reports of the alleged sexual assaults.  The VA Regional Office (“RO”), Board of Veterans’ Claims (“Board”), and the Court of Appeals for Veterans Claims (“Veterans Court”) rejected the claims in part on the ground that the veterans’ service records did not include reports of the alleged assaults, and because the veterans stated that the assaults were never reported to military authorities. 

	b.  The veterans argue that the Board and Veterans Court erred by treating the absence of reports of the alleged sexual assaults as pertinent evidence that the assaults did not occur.  The Court agreed with the veterans that the absence of a service record documenting an unreported sexual assault is not pertinent evidence that the sexual assault did not occur.  They further held that the Board and Veterans Court may not rely on a veteran’s failure to report an in-service sexual assault to military authorities as pertinent evidence that the sexual assault did not occur.

20.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR considers individual applications that are properly brought before it.  In appropriate cases, it directs or recommends correction of military records to remove an error or injustice.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The Member of Congress raises four issues here: (1) the personality disorder separation and its corresponding codes, (2) medical separation, (3) alleged sexual assault, and (4) the VA ruling (AZ vs Shinseki).  Each issue will be addressed below. 

2.  With respect to the personality disorder: 

	a.  The evidence of record shows the applicant underwent a mental status evaluation by a qualified mental health professional that determined she was diagnosed with a personality disorder that affected her ability to function effectively in a military environment.  Based on the history she gave to the Community Mental Health (i.e., a history of physical altercations with others beginning as early as junior high school) it appears her personality disorder was long-standing.  Accordingly, her chain of command initiated separation action against her under the provisions of paragraph 5-13 of Army Regulation 635-200. Her discharge was administratively correct and in conformance with applicable regulations with no indication of any violations of her rights.

	b.  She was discharged under the provisions of paragraph 5-13 of Army Regulation 635-200 for a personality disorder.  Absent her personality disorder, there was no fundamental reason to process her for discharge.  The underlying reason for her discharge was her personality disorder.  The only valid narrative reason for separation permitted under that paragraph is "Personality Disorder" and the appropriate separation code associated with her discharge is JFX, both of which are correctly shown on his DD Form 214.

	c.  By regulation, an SPD code of "JFX" has a corresponding RE code of "3" which would not have permanently prohibited her from reentering military service. An RE-3 is assigned to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but the disqualification is waivable.  

	d.  Her administrative discharge under the provisions of paragraph 5-13 of Army Regulation 635-200 for a personality disorder was proper, administratively correct, and in conformance with applicable regulations with no indication of any violations of her rights.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.  Therefore, there is no reason to correct her DD Form 214 as she has requested.  She has not shown error, injustice, or inequity for the relief she requests.

3.  With respect to the medical discharge: 

	a.  The diagnosis of PTSD related to MST resulting in a 100% disability rating from the VA is not contested.  However, while on active duty the applicant repeatedly demonstrated behavior which was incompatible with service as a Soldier (i.e., a personality disorder).  There is no evidence that this pattern of behavior was associated with a sexual assault resulting in PTSD while she was in the Army.  There is no evidence in the applicant's records that shows she was diagnosed with a medical condition that failed retention standards and/or was found unfitting.  There is no evidence that she developed the symptoms of PTSD while in the military.  Likewise, there is no record of a permanent physical profile or the existence of any conditions that warranted her entry into the PDES. 

	b.  By regulation, a history of or current manifestations of personality disorders render an individual administratively unfit rather than unfit because of physical illness or medical disability.  These conditions will be dealt with through administrative channels, not medical channels

	c.  A key element of the Army disability system is the Soldier's condition at the time of separation.  It is not intended to be a prediction of future medical ailments.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation.  Therefore, there is no reason to correct her DD Form 214 as she has requested.  She has not shown error, injustice, or inequity.

4.  With respect to the sexual assault: 

	a.  The ABCMR decides cases on the evidence of record.  It is not an investigative body.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

	b.  Again, the diagnosis of PTSD related to MST is not contested.  However, there is no evidence that this incident led to a diagnosis of PTSD while she was on active duty, and/or more importantly, that this diagnosis was found unfitting.  The preponderance of the evidence that is required is simply not supported or met in the applicant's case.  She has not shown error, injustice, or inequity for the relief she requests.

5.  With respect to the VA ruling as stated in "AZ vs Shinseki": 

	a.  The Army and the VA disability evaluation systems are independent of one another.  A diagnosis of a medical condition and/or a subsequent award of a rating by another agency do not establish an error by the Army.  Operating under different laws and its own policies, the VA does not have the authority or the responsibility for determining medical unfitness for military service.  The VA may award ratings because a medical condition is related to service (service connected) and affects the individual's civilian employability.  

	b.  Rulings by the VA do not establish precedence for this Board.  The VA has the responsibility and jurisdiction to recognize any changes in a condition over time by adjusting a disability rating.  In the applicant's case, the Army did not choose the personality disorder (and PTSD was a recognized mental disorder when she separated); it was her behavior or actions and subsequent mental status evaluations that led the staff psychologists to reach this conclusion.  The evidence clearly indicates the applicant did indeed have a personality disorder as shown by her mental status evaluations.

6.  In summary, after a comprehensive review of the applicant's argument (through her Member of Congress), the arguments she presented are not sufficiently mitigating to change the applicant's discharge to a medical discharge or retirement.  The preponderance of evidence indicates the applicant did indeed have a personality disorder as shown by her mental status evaluation and complete separation packet.  Regrettably, she remains not entitled to any 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 to amend the decision of the ABCMR set forth in Docket Number AR20130005677, dated 12 December 2013.



      _______ _   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)                                         AR20140006637





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ABCMR Record of Proceedings (cont)                                         AR20140006637



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