IN THE CASE OF:	  

		BOARD DATE:	  2 April 2015

		DOCKET NUMBER:  AR20150002608 


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 his discharge for personality disorder be changed to a medical retirement for post-traumatic stress disorder (PTSD).

2.  The applicant states he recently learned that several service members were unjustly discharged as having a pre-existing personality disorder, when in fact they had PTSD.  He was recently granted service-connected disability compensation by the Department of Veterans Affairs (VA) for PTSD rated at     50 percent.  His records should be corrected to reflect a medical retirement.

3.  The applicant provides his VA Rating Decision, dated 6 April 2013.

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 U.S. Army Reserve (USAR) on 8 April 2003.

3.  On 9 December 2004, he was ordered to active duty as a member of his USAR unit in support of Operation Iraqi Freedom.  He entered active duty on    16 December 2004 and he arrived in the imminent danger pay area on 
13 February 2005.

4.  On 5 November 2005, he enlisted in the Regular Army.

5.  He returned to the United States on or around 13 December 2005.

6.  On 17 October 2006, he underwent a mental status evaluation at Fort Hood, TX.  The Medical Command (MEDCOM) Form 699-R (Report of Mental Status Evaluation) states:

	a.  The evaluation was provided in support of an earlier assessment conducted in June 2006.

	b.  The applicant continued to exhibit behavior that was consistent with a personality profile that demonstrated significant levels of psychological distress and deterioration.  He experienced a great deal of difficulty with emotional control, developed bizarre plans, and he could become easily confused or disorganized in thinking.  He had a tendency to withdraw into fantasy and paranoid ideation.  He was impulsive and excitable and when bored and would seek to "stir things up."

	c.  Retention of such emotionally and behaviorally disordered Soldiers put them at high risk to engage in such behaviors incompatible with military service, especially while deployed.  The applicant represented a command liability and he impaired overall unit readiness and functioning.

	d.  His condition was not amenable to hospitalization, treatment, rehabilitative transfer, disciplinary action, training, or reclassification to another type of duty within the military.

	e.  He denied any suicidal/homicidal ideations and he was mentally sound and able to appreciate any wrongfulness in his conduct and to conform to the requirements of the law.  He had the mental capacity to understand and participate in board or other administrative proceedings.  He met the retention standards of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, and he did not have an unfitting diagnosis that would require a medical evaluation board.

7.  He was diagnosed with personality disorder, not otherwise specified (NOS). The evaluating official recommended his separation under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-13 (separation because of personality disorder).

8.  On 6 December 2006, the applicant's immediate commander notified him of his intent to initiate separation action against him under the provisions of paragraph 5-13, Army Regulation 635-200 because of personality disorder.  The commander stated the applicant represented a command liability and impaired overall unit readiness and functioning.

9.  On 6 December 2006, the applicant acknowledged the notification for separation.  He consulted with legal counsel and he was advised of the basis for the contemplated separation and of the rights available to him.

10.  On 7 December 2006, the separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, paragraph 5-13, by reason of personality disorder and directed the applicant be issued an honorable characterization of service.  On 12 December 2006, he was discharged accordingly.

11.  The applicant's record is void of medical documentation indicating that he was suffering from an unfitting PTSD condition during his active duty service.  In addition, there is no evidence showing he was unable to perform his military duties due to an unfitting medical condition or that he was deemed unfit for retention at the time of his discharge.

12.  He provided a VA Rating Decision, dated 6 April 2013, that shows he was granted service-connected compensation for PTSD effective 27 July 2012.

13.  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.

14.  Army Regulation 40-501 provides that for an individual to be found unfit by reason of physical disability, he/she must be unable to perform the duties of his office, grade, rank or rating.  Performance of duty despite impairment would be considered presumptive evidence of physical fitness.

15.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Physical Disability Evaluation System (PDES) and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  It provides for a medical evaluation board that is 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 qualifications for retention based on the criteria in Army Regulation 40-501, chapter 3.  Disability compensation is not an entitlement acquired by reason of service-incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.
	
	a.  Paragraph 2-1 provides that the mere presence of impairment does not of itself justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating.  The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before he or she can be medically retired or separated.

	b.  Paragraph 2-2b(1) provides that when a member is being processed for separation for reasons other than physical disability (e.g., retirement, resignation, reduction in force, relief from active duty, administrative separation, discharge, etc.), his or her continued performance of duty (until he or she is referred to the PDES for evaluation for separation for reasons indicated above) creates a presumption that the member is fit for duty.  Except for a member who was previously found unfit and retained in a limited assignment duty status in accordance with chapter 6 of this regulation, such a member should not be referred to the PDES unless his or her physical defects raise substantial doubt that he or she is fit to continue to perform the duties of his or her office, grade, rank, or rating.

	c.  Paragraph 2-2b(2) provides that when a member is being processed for separation for reasons other than physical disability, the presumption of fitness may be overcome if the evidence establishes that the member, in fact, was physically unable to adequately perform the duties of his or her office, grade, rank, or rating even though he or she was improperly retained in that office, grade, rank, or rating for a period of time and/or acute, grave illness or injury or other deterioration of physical condition that occurred immediately prior to or coincidentally with the member's separation for reasons other than physical disability rendered him or her unfit for further duty.

16.  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 an 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, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is requesting his discharge for a personality disorder be changed to a medical retirement for PTSD.  He bases his request on the fact that he was granted service-connected compensation for PTSD by the VA.

2.  The available records show he underwent a mental status evaluation that led to a diagnosis of a personality disorder.  Accordingly, his chain of command initiated separation action against him.

3.  His record is void of any clear indication that he was suffering from an unfitting PTSD condition at the time of his discharge.  It is possible he may have developed PTSD at a later date; however, there is insufficient medical evidence indicating he was unfit to perform his military duties due to PTSD. 

4.  An award of a VA rating does not establish entitlement to medical retirement or separation.  The VA is not required to find unfitness for duty.  Operating under its own policies and regulations, the VA awards ratings because a medical condition is related to service, i.e., service-connected.  Furthermore, the VA can evaluate a veteran throughout his lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army must find unfitness for duty at the time of separation before a member may be medically retired or separated.

5.  The evidence confirms his separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

6.  The applicant has failed to show that his separation processing under the provisions of Army Regulation 635-200, paragraph 5-13 was in error or unjust.  As a result, there is no basis for granting the applicant a medical retirement. 

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)                                         AR20150002608



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ABCMR Record of Proceedings (cont)                                         AR20150002608



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