MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  1 June 2000
	DOCKET NUMBER:   AR2000036848

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. Theodore G. Heartley		Analyst	

  The following members, a quorum, were present:

	Mr. James C. Hise		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Raymond V. O’Connor, Jr.		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  Reinstatement on active duty in the Regular Army (RA) with back pay pending the results of medical evaluation board (MEB) and physical evaluation board (PEB) processing.

APPLICANT STATES:  That he was discharged for disability without a medical board and without an opportunity to qualify for medical retirement due to his disability.  He also submitted a letter of support from a former colleague.

COUNSEL CONTENDS:  In effect, that the applicant was entitled to have his case presented for MEB & PEB evaluation; and that he clearly suffers from a severe depressive disorder that necessitates prolonged hospitalization and anti-depressant medication yet he was separated from the Army without any medical or disability evaluation and provisions for continuing treatment and care.  Counsel further stated that in light of the Criminal Investigation Division’s (CID) failure to substantiate criminal charges, his commander pursued separation action under the provisions of Army Regulation (AR) 635-200, paragraph 5-18, thereby enabling a board of Army line officers to make a medical and disability determination instead of trained medical professionals as mandated by Congress. 

EVIDENCE OF RECORD:  The applicant's available military records show:

He had prior RA service as an indirect fire infantryman in military occupational specialty (MOS) 11C from 9 March 1987 to 7 March 1989.  On 19 November 1990, he enlisted in the RA for training in MOS 91F, psychiatric specialist.  His MOS 91F assignments included Fitzsimons Army Medical Center, Colorado; 97th General Hospital, Frankfurt, Germany; 2nd General Hospital, Landstuhl, Germany; Walter Reed Army Medical Center, Washington, D.C.; and Tripler Army Medical Center (TAMC), Honolulu, Hawaii. His highest attained rank was staff sergeant. 

On 8 October 1998, his unit commander initiated separation proceedings in accordance with AR 635-200, chapter 5, paragraph 5-18, based on a diagnosis of a nonspecified personality disorder that interfered with his ability to function effectively in a military environment and a maladaptive pattern of behavior that interfered with his ability to perform his duties.  The unit commander recommended that rehabilitative transfer be waived since the specific circumstances involved would create a serious disciplinary problem or hazard to the military mission or to the soldier.  The recommendation for separation was also supported by his intermediate commander.  An accompanying formal counseling statement indicated that he was officially advised of the results of the command directed mental health evaluation summarized below, that identified his paraphilia tendencies and describes the basis for command’s decision to pursue separation out of concern and the possibility that he might act upon those tendencies in a predatory manner.

A summary of the accompanying psychiatric evaluation, signed by the Chief, Emergency Psychiatry Service, TAMC, an Army major, revealed the diagnoses of paraphilia, not otherwise specified, and major depressive disorder.  

Paraphilia is a sexual disorder manifested in the engagement in bizarre imagery or acts for the realization of sexual excitement.  The evaluation indicated that he had stressors in his life related to his work, marriage, and church that increased the intensity of his unwanted sexually obsessive behavior, which he would not describe.  

The evaluation further indicated that he attempted suicide in June 1998, and also noted a history of significant family dysfunction including drug and alcohol abuse by his parents and sisters; neglect and emotional abuse; exposure to deviant sexual practices by his father; knowledge of his sisters sexual involvement with his father; knowledge of his parents involvement with numerous sex partners throughout his childhood; divorce of his parents when he was 6 years old; and his own stoppage of alcohol use at age 
20 with the help of Alcoholics Anonymous.  The evaluation also indicated that during the past year, his deep depression and suicide attempt were brought on by a threatened divorce, a poor relationship with his supervisor wherein he felt no way out, a deteriorating relationship with his church members wherein he had previously sought solace from them but received negative judgement instead, and a deteriorating relationship with God.  Additional history data was obtained from his unit commander and from CID interviews including a sworn statement from a church counselor that he had admitted to a sexual relationship involving oral sex with a psychiatric patient.  Other information revealed that he attempted suicide after being observed masturbating in a car; that he would drive around, then park and masturbate while viewing attractive women; and that he also admitted to brief sexual contact (less than 10 seconds) with former patients prior to his assignment at TAMC.  

The attending psychiatrist found that he met the medical retention standards and did not require processing through medical channels.  He was cleared for any administrative actions deemed appropriate by his command including separation under AR 635-200, chapter 5, paragraph 5-18.  The psychiatrist noted a positive prognosis to his diagnoses of major depression given his response to medication and pyschotherapy.  The psychiatrist further noted that his diagnosis of paraphilia was based on his long standing unwanted sexual obsessions and apparent masturbatory behaviors which in many cases is deeply ingrained and resistant to treatment; and that given his refusal to reveal specific sexual obsessions, it was difficult to predict future behavior since different obsessions may be associated with different risks and potential to respond to treatment. The psychiatrist expressed great concern over his prior admission of sexual contact with psychiatric patients which suggested predatory-type behavior in a segment of population considered to be at greatest risk for exploitation therefore, recommended that he be placed in a duty position that permanently avoided patient care.  A report of medical examination cleared him for separation.

On 21 December 1998, an administrative separation board convened to determine if he should be separated based upon his severe mental condition that had the potential to interfere with his assignment or the performance of his duty.  

The administrative board determined, after careful consideration by majority vote, the preponderance of evidence, supported allegations of misconduct and therefore recommended that he be separated from service with an honorable characterization of service. 

The Board noted that counsel’s statement, the applicant’s psychiatric evaluation, and the record of administrative separation board proceedings made references to a CID report of investigation pertaining to allegations of misconduct related to his paraphilia condition however, the report was not contained in his available records.

On 14 January 1999, after considering the facts and circumstances submitted in the administrative separation board, the separation authority, a major general, directed his release from active duty under AR 635-200, chapter 5-18, with the issuance of an Honorable Discharge Certificate.

His DD Form 214, separation document, shows that he was separated on 12 February 1999, under the provisions of AR 635-200, chapter 5, paragraph 5-18, by reason of a physical condition, not a disability.  He had completed a total of 10 years, 4 months, and 23 days of creditable service.

Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 5, paragraph 5-18, of this regulation states, in pertinent part, that a soldier may be separated for other physical or mental conditions not amounting to disability (AR 635-40) that potentially interferes with assignment to or performance of duty. Such conditions may include but are not limited to, chronic air sickness or sea sickness, enuresis, dyslexia, sleepwalking, severe nightmares, claustrophobia, and other disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the soldier’s ability to effectively perform military duties is significantly impaired. The regulation further states that when a commander determines that a soldier has a physical or mental condition that potentially interferes with assignment to or performance of duty, the commander will refer the soldier for a medical examination or mental status evaluation in accordance with AR 40-501.  The regulation also states that a recommendation for separation must be supported by documentation confirming the existence of a physical or mental condition; that separation processing may not be initiated until the soldier was formally counseled concerning deficiencies and was afforded the opportunity to overcome those deficiencies; that nothing precluded separation for a condition described under the provision above or other provisions of the regulation; and that notification and administrative board procedures were required under this provision.

Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred and will, if it appears as though a member is not medically qualified to perform duty or fails to meet retention criteria, refer the member to a MEB.  Those members who do not meet medical 
retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and specialty with the medically disqualifying condition.  The fact that an individual has a medically disqualifying condition does not mandate separation from the service.  Fitness for duty, within the perimeters of the individual’s grade and military specialty, is the determining factor regarding separation.  
If the PEB determines that an individual is physically unfit, it will recommend a percentage of disability to be awarded which, in turn, determines whether that individual will be discharged with severance pay or retired.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined the individual suffers from an impairment that disqualifies the individual from further military service.  In this regard, the Army rates only conditions determined to be physically unfitting, thereby compensating the individual for the loss of a career.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The applicant’s allegation, reinforced by counsel’s statement, that despite his entitlement to MEB and PEB processing, he was denied such processing and thereby denied physical disability retirement is not supported by the evidence of record or evidence submitted by him.

2.  The evidence of record, particularly his psychiatric evaluation including the diagnoses of paraphilia and major depressive disorder, confirmed the existence of a condition, not considered a disability, that had the potential for interfering with his performance of duty and overall mission accomplishment and clearly did not warrant processing through the physical disability system.   

3.  The Board concludes that given the nature of his condition and the potential for future predatory behavior and misconduct as indicated by the evidence which strongly suggested a highly probable outcome, his chain of command and administrative separation board alike determined that the risk of retaining him on active duty was too great and therefore, correctly and appropriately, recommended his separation under the provisions of AR 635-200, chapter 5, paragraph 5-18.

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

5.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__JH__  __MM___  __RO___  DENY APPLICATION

						Karl F. Schneider
				     Director, Army Review Boards Agency

INDEX

CASE ID	AR2000036848	
SUFFIX		
RECON		
DATE BOARDED	20000601	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19990212	
DISCHARGE AUTHORITY	AR635-200	
DISCHARGE REASON	PHYSICAL CONDITION, NOT A DISABILITY	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110	
2.		
3.		
4.		
5.		
6.