IN THE CASE OF:  


		BOARD DATE:  30 April 2015	  

		DOCKET NUMBER:  AR20140015881 


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 his records to show he was: 

* medically discharged under honorable conditions instead of discharged with an uncharacterized discharge by reason of personality disorder
* discharged on 5 October 1989 instead of 26 September 1989 

2.  The applicant states:

	a.  Originally the Department of Veterans Affairs (VA) psychiatrist diagnosed him with anxiety plus manic depression.  He was going to give him a medical discharge.  However, he lacked insight of military and civilian systems at the time.  He begged the psychiatrist to change the diagnosis because he was worried about his civilian/future career life.  

	b.  He really was shipped back home to Ohio on 5 October 1989, one day before final graduation.  The day he was shipped, even one day before, the Soldiers in his platoon were wearing their green Army uniforms and doing final marching for graduation on 6 October 1989.  In the meanwhile, he was awaiting shipping and was put on detail, cleaning, working, and racking leaves. 

3.  The applicant provides three psychiatric statements, dated 2007, 2008, and 2009 respectively. 



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 for a period of 2 years and 20 weeks, in the rank/grade of private first class/E-3, on 8 August 1989.  He was assigned to Fort Jackson, SC, for training. 

3.  On 23 August 1989, he was counseled by his platoon sergeant for failing to polish his foot gear, failing to make his bunk properly, and failing to wear his road guard vest.  Likewise, on 25 August 1989, the platoon sergeant counseled him again regarding his consistent negative attitude. 

4.  On 8 September 1989, he was again counseled by his platoon sergeant for inability to adapt to military life.  The platoon sergeant indicated that the applicant displayed a negative attitude throughout all phases of training.  His actions, mannerism, and body language reflected negatively.  He had been unreceptive to counseling and his behavior was not tolerated. 

5.  Also, on 8 September 1989, his unit first sergeant counseled him about his negative attitude and lack of motivation.  The applicant attributed the attitude to a recruiter's lie and indicated on several occasions that he wanted out of the Army. He complained about the stress of basic training.  

6.  On 11 September 1989, the applicant's company commander counseled him regarding his lack of motivation and inability to adapt to military lifestyle.  Following this counseling, the applicant's commander referred him to a psychiatric evaluation after the applicant said he wanted out of the Army and became disruptive to training.  The commander requested a recommendation on the applicant's potential for developing into a productive Soldier. 

7.  On 7 September 1989, he underwent a mental status evaluation.  This evaluation shows: 
	a.  The unit stated that the applicant refused to do what he was told and was disruptive in training.  He stated he wanted out of the Army because the recruiter lied to him about the military occupational specialty which resulted in the applicant being unhappy.  During the mental status evaluation, the applicant was alert and oriented in all spheres.  There was no evidence of psychosis or thought disorder.  He did not have suicidal or homicidal ideation at the time.  His diagnosis was as follows: Axis I: adjustment disorder with work inhibition; and Axis II: personality disorder, not otherwise specified. 

	b.  The assessment was that he had no motivation for continued service.  Retaining him would have been detrimental to the unit and to himself.  His life history to date indicated his ability to handle stress was limited and he would make a hazard to himself and his unit in a combat situation.  He was strongly recommended for administrative separation. 

	c.  He was psychiatrically cleared for any administrative actions deemed appropriate by his chain of command.  His potential for retention was poor and his diagnosis supported administrative separation under the provisions of paragraph 5-13 of Army Regulation 635-200 (Enlisted Personnel Separations) by reason of a personality disorder.  

8.  On 11 September 1989, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of paragraph 5-13 of Army Regulation 635-200 by reason of a personality disorder.  The immediate commander recommended an uncharacterized discharge.

9.  On 11 September 1989, the applicant acknowledged receipt of the separation memorandum and he was offered an opportunity to consult with counsel.  He was advised of the basis for the contemplated separation action and its effect, of the rights available to him and the effect of any action taken by him in waiving his rights, and of the type of discharge and its effect on further enlistment or reenlistment.  He waived his right to consult with counsel and elected not to submit a statement on his own behalf.  He was also offered the opportunity to undergo a medical examination but declined a separation medical examination. 

10.  Following this acknowledgement, the applicant's immediate commander initiated separation action against him in accordance with paragraph 5-13 of Army Regulation 635-200.  His intermediate commander recommended approval of the recommendation for separation under the provisions of paragraph 5-13 of Army Regulation 635-200.

11.  On 19 September 1989, the separation authority approved the proposed separation action against the applicant in accordance with paragraph 5-13 of Army Regulation 635-200 and directed he receive an uncharacterized separation.  

12.  On 20 September 1989, Headquarters, U.S. Army Training Center, Fort Jackson, SC, published Orders 182-142 ordering the applicant to report to the U.S. Army Transition Point for separation outprocessing effective 25 September 1989 with a date of discharge as 25 September 1989. 

13.  On 25 September 1989, Headquarters, U.S. Army Training Center, Fort Jackson, SC, published Orders 185-139, amending the applicant's date of discharge to 26 September 1989. 

14.  The applicant was discharged on 26 September 1989.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200, paragraph 5-13, by reason of personality disorder.  He completed 1 month and 19 days of active service.  This form further shows the following entries:

* item 25 (Separation Authority) shows the entry - Army Regulation 635-200, paragraph 5-13
* item 26 (Separation Code) shows the entry "JFX"
* item 28 (Narrative Reason for Separation) shows the entry "Personality Disorder"

15.  On 16 May 1991, the Army Discharge Review Board (ADRB) reviewed his separation processing and found it proper and equitable.  Accordingly, the ADRB denied his petition for a change to the characterization of service. 

16.  He provides three psychiatric statements as follows: 

	a.  Two statements, dated 13 July 2007 and 28 May 2008, a psychiatrist states she is the treating physician for the applicant.  He has been receiving psychiatric treatment and case management services from her and Core Behavioral since 2005.  He has mental illness and has been diagnosed by her as having schizoaffective disorder and post-traumatic stress disorder.  He has been a client of Core Behavioral Health Center since 27 July 2004 and has been receiving psychiatric treatment.  He does not currently have any drug or alcohol dependency issues that need addressing.  According to his DD Form 214, he was separated from the Army on 5 October 1989 (i.e., 26 September 1989) for having a personality disorder which is a mental illness.   Since his separation from the service he has developed frequent and painful urination, weight gain from depression, frequent troubles sleeping, excessive worry, nervousness, auditory hallucinations, and delusions.  He did not seek medical attention right after his discharge from the Army because he lacked insight into his illness.  He didn't realize that he was sick, which is very common for people with mental illness.  His schizoaffective disorder impaired his judgment.  His symptoms started while he was in the Army.  In her professional opinion the time he spent in the Army was stressful and contributed to his development of mental illness.  Stress in the Army triggered his mental illness and his mental condition developed to at least ten percent compensable disability upon his discharge from the Army.

	b.  A third statement, dated 9 February 2009, from a psychiatrist who states he is the treating psychiatrist for the applicant.  He has only been treating him for a limited time, but he has been receiving psychiatric treatment from Centerpoint Health since 27 July 2004.  He has been diagnosed by the psychiatrist indicated above as having schizoaffective disorder.  She has been treating him for several years.  He agrees with this diagnosis.  The applicant does not currently have any drug or alcohol dependency issues that need addressing.  According to his DD Form 214, he was separated from the Army on 5 October 1989 for having a personality disorder which is a mental illness.  Since his separation from the service he has developed frequent and painful urination, weight gain from depression, frequent troubles sleeping, excessive worry, nervousness, auditory hallucinations, and delusions.  He did not seek medical attention immediately after his discharge from the Army because he lacked insight into his illness.  His schizoaffective disorder impaired his judgment.  As a veteran and a current Army psychiatrist, it is his professional opinion that the time the applicant spent in the Army contributed to the development of his mental illness.  He also has prior work experience as a VA psychiatrist doing exams to evaluate for disability. Based on his experience, the applicant should meet the criteria for service connected-disability. 

17.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.

   a.  Paragraph 5-13 at the time stated a Soldier could be separated for personality disorder (as determined by medical authority), not amounting to disability under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), that interfered with assignment to or performance of duty.  The regulation required that the condition be a deeply-ingrained maladaptive pattern of behavior of long duration that interfered with the Soldier's ability to perform duty.  Commanders would not take action prescribed in this paragraph in lieu of disciplinary action.  The diagnosis must have concluded that the disorder was so severe that the Soldier’s ability to function in the military environment was significantly impaired.

	b.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  Paragraph 3-9a(1) states a separation will be described as entry-level with service uncharacterized if processing is initiated while a Soldier is in an entry-level status, except when characterization under other than honorable conditions is authorized under the reason for separation and is warranted by the circumstances of the case.  Entry-level status is defined as the first 180 days of continuous active duty or the first 180 days of continuous active service after a service break of more than 92 days.  It further states the character of service for members separated while in an entry-level status will be uncharacterized.  For the purposes of characterization of service, the Soldier's status is determined by the date of notification as to the initiation of separation proceedings.

18.  Army Regulation 635-40 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.  

19.  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 this regulation 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.

20.  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 JFX is the correct code for Soldiers separating under paragraph 5-13 of Army Regulation 635-200 by reason of a personality disorder.
DISCUSSION AND CONCLUSIONS:

1.  There are three issues of contention in this case: the reason for separation, the characterization of service, and the date of discharge. 

2.  With respect to the reason for separation: 

	a.  The evidence of record shows shortly after his entry on active duty in August 1989 (within the first week), the applicant displayed a negative attitude toward training and he was unable to adapt to military life.  Concerned with his disruptive behavior and negative attitude, his commander referred him to a mental status evaluation.

	b.  The mental status evaluation yielded a personality disorder diagnosis.  This diagnosis did not amount to a disability under Army Regulation 635-40.  It interfered with the applicant's ability to complete training.  Because this mental status evaluation determined he was diagnosed with a personality disorder that affected his ability to function effectively in a military environment, his chain of command initiated separation action against him under the provisions of paragraph 5-13 of Army Regulation 635-200.  

	c.  His administrative discharge under the provisions of paragraph 5-13 of Army Regulation 635-200 for a personality disorder was proper.  His discharge was administratively correct and in conformance with applicable regulations with no indication of any violations of his rights.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.  Therefore, there is no reason to correct the reason for his separation.  

	d.  The post-service psychiatric evaluation he provides appears to have been drafted for eligibility for service-connection compensation.  Nevertheless, according to accepted medical principles, the manifestation of a congenital or hereditary condition or trait from date of entry on active military service (or so close to that date of entry that the disease could not have started in so short a period) is accepted as proof that the disease existed prior to entrance into active military service.  

	e.  A personality disorder does not equate to a finding of "unfit."  In order for a condition to be compensable (by the Army), the condition must first be diagnosed to have occurred while the member is entitled to basic pay, must also be determined to have failed retention standards, is determined to be unfitting, and medical officials must determine the degree of unfitness.  There was no evidence of this condition being disabling at the time of his separation.  

	f.  Whenever there is a physical or a mental disability, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating.  A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating.  A disability rating assigned by the Army is based on the level of disability at the time of the Soldier's separation, not his diagnosis some 20 years later.  

3.  With respect to the characterization of service: 

	a.  During the first 180 days of continuous active military service, a member's service is under review.  When separated within the first 180 days, service is usually not characterized unless the circumstances of the separation warrant a discharge under other than honorable conditions.  An honorable characterization may be given only if the service clearly warrants that characterization by unusual circumstances of personal conduct and performance of military duty and the characterization must be approved by the Secretary of the Army.

	b.  An uncharacterized discharge is neither positive nor negative; it is not derogatory.  An uncharacterized character of service is not meant to be a negative reflection of a Soldier's military service.  It merely means the Soldier has not served on active duty long enough for his/her character of service to be rated.

	c.  Because this condition was identified within his first 180 days of active duty service, his discharge was appropriately uncharacterized.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He received the appropriate characterization of service and there is no reason to change his character of service.

4.  With respect to the date of separation:  

	a.  The discharge orders (as amended) issued by Headquarters, U.S. Army Training Center, Fort Jackson, SC, clearly show his date of separation as 26 September 1989.  This is further confirmed by the DD Form 214 that he signed.  

	b.  There is no evidence in his records and he provides none to show he was held beyond this date.  




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)                                         AR20140015881



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ABCMR Record of Proceedings (cont)                                         AR20140015881



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