IN THE CASE OF:	 

		BOARD DATE:	  18 September 2014

		DOCKET NUMBER:  AR20140011350 


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 item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show "Post-Traumatic Stress Disorder (PTSD)" vice "Personality Disorder." 

2.  The applicant states: 

* he was screened for and diagnosed with PTSD prior to his discharge
* he was subsequently diagnosed and rated by the Department of Veterans Affairs (VA) at 50 percent disabled, effective 17 October 2012
* in May 2013, he received a letter from the Office of the Assistant Secretary of the Army for Manpower and Reserve Affairs (Retherford Letter)

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Retherford Letter
* DD Form 2697 (Report of Medical Assessment)
* DA Form 4700 (Medical Record-Supplemental Medical Data)
* DD Form 2808 (Report of Medical Examination)
* DD Form 2807-1 (Report of Medical History)
* VA rating decision


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 6 November 2003 and he held military occupational specialty 31B (Military Police (MP)).  He was assigned to the 252nd MP Company, Fort Leonard Wood, MO.

3.  On 24 October 2005, he underwent a mental status evaluation at the Behavioral Health Clinic.  The military psychiatrist opined the applicant had the mental capacity to understand and participate in administrative proceedings and he was mentally responsible.

	a.  He revealed disturbances of emotional control that have escalated to disturbances in behavior and performance.  His current diagnosis included PTSD, chronic, and Personality Disorder.  He has a history of disassociative states and trauma.  He continues to worsen despite increasing treatment intervention.  It appears that the military environment was worsening his PTSD problems.

	b.  If he is retained in the military, the command may anticipate problems with depression and anxiety, alcohol abuse, suicidal gestures and attempts, unreliability, increased risk of accidents, and frequent hospitalization.

	c.  He was recommended for a paragraph 5-13 for personality disorder and he was not allowed to use weapons.  He was offered a medical evaluation board (MEB) but prefers a quicker separation.  The benefits of a medical board were discussed and he continues to waive his right to have one.  It is probably in his best interest to separate now and go to the VA for follow-up care.  He is currently safe.

4.  He underwent a separation physical on 26 October 2005.  He was found not qualified for separation and he was diagnosed with chronic low back pain, plantar fasciitis, and PTSD.  

5.  On 4 November 2004, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of Army Regulation 635-200, paragraph 5-13, by reason of a personality disorder.  He recommended an honorable characterization of service. The specific reasons are listed as his personality disorder and PTSD which interfered with his ability to perform his duties as a Soldier. 

6.  The applicant acknowledged receipt of the notification of separation action and he consulted with legal counsel, wherein he was advised of the basis for the contemplated separation and of the rights available to him in connection with the action.  He stated that he will not be able to overcome his deficiencies and waived the opportunity to do so. 

7.  Subsequent to this acknowledgement, the immediate commander initiated separation action against the applicant under the provisions of Army Regulation 635-200, paragraph 5-13, by reason of personality disorder and PTSD.  His intermediate commander recommended approval. 

8.  On 7 November 2005, subsequent to legal review and consistent with the chain of command recommendations, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, paragraph 5-13 and directed the applicant be issued an honorable characterization of service. 

9.  On 12 December 2005, the applicant was discharged accordingly.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, paragraph 5-13 with an honorable discharge.  He completed 2 years, 1 month, and 7 days of creditable active service.  Item 26 (Separation Code) shows the entry "JFX" and item 28 shows the entry "Personality Disorder." 

10.  In connection with the processing of this case, on 6 June 2013, an advisory opinion was obtained from the Office of The Surgeon General (OTSG), Director of Health Care Delivery.  The advisory official states conclusions for this advisory opinion are drawn solely based on available documentation from the applicant's time on active service unless otherwise noted.

	a.  The applicant asserts he was diagnosed with PTSD prior to his 12 December 2005 discharge for personality disorder.  He further affirms he was subsequently awarded service-connected disability for PTSD at the rate of 50 percent from the VA, effective 17 October 2012.  He asserts he received a letter from the Office of the Assistant Secretary of the Army for Manpower and Reserve Affairs advising him that if he had been, or was subsequently diagnosed with service-connected PTSD, and he believed this condition influenced his discharge, he could seek a review of his administrative separation and request a change to the reason for his discharge.  

	b.  His first documented outpatient behavioral health encounter was dated 12 October 2005, following a behavioral health-related emergency room visit.  The emergency room visit in question was unavailable for review.  He does not appear to have a documented history of behavioral healthcare prior to deployment to include behavioral health-related emergency room visits.  However, the available medical records suggest there were at least three behavioral health-related emergency room visits following his deployment, as well as behavioral health treatment for PTSD from June to December 2005.  His PTSD diagnosis is also sufficiently supported by the available medical records in accordance with the criteria established by the Diagnostic and Statistical Manual of Mental Disorders.  The applicant appears to have been exposed to a traumatic event during his deployment.  Criteria were additionally met for re-experiencing, avoidance, hyper-arousal, clinically significant distress and impairment in occupational functioning, as well as duration of disturbance greater than one month.

	c.  On 25 October 2005, his evaluating psychiatrist appears to have been of the professional opinion that a medical evaluation board (MEB) rather than an administrative separation was a better option for him.  The psychiatrist appears to have discussed this opinion with the applicant's command, who was reportedly in agreement.  It appears the applicant's psychiatrist and command may have been concerned about convincing him about agreeing to the MEB.  However, an active duty Soldier does not have the authority to opt out of an MEB process.

	d.  At the time of his discharge the applicant appeared to have met the diagnostic criteria for PTSD with significant impairment in occupational functioning.  An MEB would likely have been appropriate in accordance with Army Regulation 40-501 (Standards of Medical Fitness) for a determination of fitness status.  As well, his diagnosis of personality disorder does not appear supported by the medical record.  Therefore, the Behavioral Health Division at OTSG supports the narrative reason for separation to be PTSD. 

11.  On 13 August 2014, a copy of the advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.
12.  Army Regulation 635-200 prescribes the policy for the administrative separation of enlisted personnel.  Paragraph 5-13 provides for separating members by reason of personality disorder (not amounting to disability) that interferes with assignment or with performance of duty.

13.  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 members separating under the provisions of Army Regulation 635-200, paragraph 5-13, by reason of personality disorder.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.

   a.  Paragraph 3–9 provides guidance for the Temporary Disability Retired List (TDRL).  Specifically, it states the TDRL is used in the nature of a "pending list."  It provides a safeguard for the Government against permanently retiring a Soldier who can later fully recover or nearly recover from the disability causing him or her to be unfit.  Conversely, the TDRL safeguards the Soldier from being permanently retired with a condition that may reasonably be expected to develop into a more serious permanent disability.  Requirements for placement on the TDRL are the same as for permanent retirement.  The Soldier must be unfit to perform the duties of his or her office, grade, rank, or rating at the time of evaluation.  The disability must be rated at a minimum of 30 percent or the Soldier must have 20 years of service computed under Title 10, U.S. Code, section 1208 (10 USC 1208).  In addition, the condition must be determined to be temporary or unstable.

   b.  Paragraph 4-17 provides guidance for Physical Evaluation Boards (PEBs). Specifically, it states PEBs are established to evaluate all cases of physical disability equitably for the Soldier and the Army.  The PEB is not a statutory board.  Its findings and recommendation may be revised. 

15.  The VA Schedule for Ratings Disabilities (VASRD), section 4.129, provides information regarding mental disorders due to traumatic stress.  Specifically, it states that when a mental disorder that develops in service as a result of a highly stressful event is severe enough to bring about the veteran’s release from active military service, the rating agency shall assign an evaluation of not less than
50 percent and schedule an examination within the 6-month period following the veteran’s discharge to determine whether a change in evaluation is warranted.

16.  The 2008 National Defense Authorization Act (NDAA), section 3.1, effective 28 January 2008, provides that in making a determination of a member's disability rating the Military Department shall, to the extent feasible, utilize the VASRD in use by the VA.

17.  In a 17 July 2009 memorandum, the Office of the Under Secretary of Defense (Personnel and Readiness) directed that as a matter of policy, all three Boards for Correction of Military Records will apply VASRD Section 4.129 to PTSD unfitting conditions for applicants discharged after 11 September 2001 and, in such cases where a grant of relief is appropriate, assign a disability rating of not less than 50% for PTSD unfitting conditions for an initial period of 6 months following separation, with subsequent fitness and PTSD ratings based on the applicable evidence.  It would be inequitable to treat PTSD unfitting conditions differently than any other unfitting conditions.  Therefore, as a matter of equity and policy, provisions of Department of Defense or Army regulations or guidelines relied upon by the PEB will not be considered by the ABCMR to the extent they were inconsistent with the VASRD in effect at the time of the adjudication in all cases in which the applicant was discharged on or after 
11 September 2001.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged from active duty on 12 December 2005 by reason of a personality disorder.  While his documented behaviors were strongly suggestive of a personality disorder, the record does not demonstrate the history needed to support that diagnosis; that is, whether these behaviors were evident prior to deployment.  

2.  Although he was fully responsible for his choices and behavior, his PTSD contributed to his behavior.  Given his reluctance to make changes, it is unlikely he would have been able during his active service to have a successful treatment outcome.  

3.  At the time of his discharge from active duty, he was clearly diagnosed with PTSD which he developed following combat experience.  Although this condition was evident, he was reluctant to participate in the MEB process.  An MEB would likely have been appropriate in accordance with Army Regulation 40-501 for determination of his fitness.

4.  Under the principles of the 2008 NDAA the applicant's PTSD conditions warrant correction of his record by voiding his 12 December 2005 discharge by reason of personality disorder and to show he was instead separated by reason of disability, temporary on 12 December 2005, and placed on the TDRL on 13 December 2005, at a 50-percent disability rating.

5.  Based on the available evidence, the U.S. Army Physical Disability Agency (USAPDA) should evaluate the applicant’s medical conditions to determine if the applicant’s condition 6 months after placement on the TDRL warrants a permanent disability retirement.

6.  A Survivor Benefit Plan (SBP) election must be made prior to the effective date of retirement or the SBP will, by law, default to automatic SBP spouse coverage (if married).  This correction of records may have an effect on the applicant's SBP status/coverage.  The applicant is advised to contact his nearest Retirement Services Officer (RSO) for information and assistance immediately.  A listing of RSOs by country, state, and installation is available on the Internet at website http://www.armyg1.army.mil/RSO/rso.asp.  The RSO can also assist with any TRICARE questions the applicant may have.

BOARD VOTE:

____X____  ___X_____  __X______  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: 

* retroactively placing the individual on the TDRL for a minimum of 6 months at a 50-percent disability rating for PTSD effective the date initially separated
* 
the USAPDA evaluating the applicant's medical conditions based on all available evidence to determine the appropriate final disability rating
* paying him any retired pay due



      ____________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)                                         AR20140011350





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ABCMR Record of Proceedings (cont)                                         AR20140011350



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