IN THE CASE OF: BOARD DATE: 17 November 2015 DOCKET NUMBER: AR20150012320 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: a. Correction of the separation code, reentry eligibility (RE) code, and narrative reason for separation shown on her DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 21 September 2006. b. Removal of the DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the period June 2005 through May 2006 from her Official Military Personnel File (OMPF). 2. The applicant states: a. A discharge upgrade is necessary for her to reenter active duty service and continue her career. The current discharge characterization is unjust and does not reflect the Soldier she was while serving in the Army. b. She was not medically cleared by a doctor and was forced to work, which was documented on numerous occasions. She was also antagonized by her commander and private medical information was released as a result. She was then referred to a psychologist at Fort Knox, KY, and was later misdiagnosed by a psychologist who never saw her. The memorandum the psychologist attached was contradictory to the personality disorder diagnosis. c. The NCOER covering the period June 2005 through May 2006 needs to be removed from her records. 3. The applicant provides: * service personnel records * sworn statements from NCOs with whom she worked, counselors who evaluated her, and a Department of Veterans Affairs (VA) psychologist * VA Rating Decision, dated 5 July 2007 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 on 8 January 2002 for a period of 8 years and trained as a chemical operations specialist and human resources specialist. She was ordered to active duty on 7 April 2003 in support of Operation Enduring Freedom. On 30 March 2004, she was released from active duty. She entered active duty in an Active Guard Reserve status on 12 September 2004. She was promoted to sergeant effective 17 June 2005. 3. The contested NCOER covers the period June 2005 through May 2006. In Part IVa (Army Values), the rater placed an "X" in the "No" box for: * Loyalty * Selfless-Service * Honor * Integrity 4. The rater entered the following bullet comments in Part IVa: * breached her trust and loyalty among members of the chain of command * placed self-interest above other factors * was untruthful in critical situations 5. In Part IV (Values NCO Responsibilities), she was rated as "Needs Improvement (Much)" in block b (Competence) by her rater with the following bullet comments: * required direct supervision when handling tasks * displayed inconsistent loyalty and could not be depended upon * produced just enough to get by * not a team player; applied herself only if the task would benefit her interest 6. In Part IV, she was rated as "Needs Improvement (Some)" in block d (Leadership) by her rater with the following bullet comments: * failed to tell the truth when confronted with stress or pressure * often demonstrated a lack of ability to weigh alternatives and make sound decisions * her actions have placed her integrity in question during this rating period 7. In Part V (Overall Performance and Potential), she was rated "Marginal" in block a (Overall Potential for Promotion and/or Service in Positions of Greater Responsibility) by her rater. 8. In Part V, she was rated "Fair-4" in block c (Overall Performance) and she was rated "Fair-4" in block d (Overall Potential for Promotion and/or Service in Positions of Greater Responsibility) by her senior rater. Her senior rater entered the following bullet comments in block e (Senior Rater Bullet Comments): * at times, lacked maturity and displayed poor judgement * not consistent when taking responsibility for her actions * often lacked integrity and compromised other Army values during this rating period * received over 12 negative counseling statements and a company-grade letter of reprimand during this counseling period 9. Her records show she was counseled for: * failing to notify command for accountability * failing the Army Physical Fitness Test * being insubordinate to an officer * not being present for duty at the designated time * failing to make suspense dates * disobeying direct orders * receiving a letter of reprimand from company commander * failing to appear for mandatory training * endorsing command documents when signature authority was not granted (twice) * disobeying a direct order and not being present for mandatory training * not recognizing the importance of sending information up the chain of command * having accountability of her assigned weapon * not being present for duty 10. On 10 May 2006, she underwent a mental status evaluation. The evaluating psychiatrist rendered the following diagnosis: * Axis I (Principal Disorder) – rule out anxiety disorder, situational stressors * Axis II (Personality Disorder) – no diagnosis 11. The psychiatrist recommended: From a psychiatric point of view, this individual demonstrates motivation for continued service and there appears to be sufficient basis to warrant rehabilitative efforts by Command. This Soldier is experiencing multiple stresses from duty but, she continues to be motivated towards resolving her problems through counseling services. Recommend this Soldier be assigned to another unit or given a compassionate reassignment. It is likely that with Command efforts to rehabilitate or develop this individual into a satisfactory member of the military will be successful. 12. On 25 May 2006, a licensed clinical psychologist diagnosed her with a personality disorder. The psychologist stated: SM [service member] was seen in this clinic on 10 May 2006. She was referred by her Command for fitness for duty. Commander sent extensive documentation for behavioral health review. SM has had extensive behavioral problems and has not responded to serial verbal or written counseling from her command. When seen in this clinic for mental status evaluation, SM denied psychiatric problems. She was found to be fully oriented, well-kept, bright mood/affect, and clear thought processes. SM denied SI/HI [suicidal ideation/homicidal ideation]. She stated that her problem was a "hostile work environment." The undersigned reviewed her behavioral health records, documentation from her command regarding her behavioral problems, and discussed her case with her commander on several occasions. It is noteworthy that SM exhibited the same or similar behavioral problems with her commander, per commander's report, as she has under current command. I also discussed her case with the behavioral health providers who saw/assessed her on 10 May 2006… The following conclusions are warranted: * SM does not have an Axis I condition that requires mental health treatment * her problems are behavioral * SM has not benefitted from counseling from her command * SM has had the same or similar problems now as she had under prior commander * SM has Axis II defenses of projection of blame, denial and rationalization of her behavior * SM has Axis II condition (Personality Disorder, NOS [not otherwise specified] with Prominent Cluster B traits * Administrative separation from service under ch. 5-13 [Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-13], Personality is warranted Recommendation: SM be expeditiously separated from service. 13. On 15 June 2006, discharge proceedings were initiated against her for personality disorder under the provisions of Army Regulation 635-200, paragraph 5-13. Her commander stated he was initiating action to separate her following the recommendation of the attending licensed clinical psychologist after a command-directed psychological evaluation conducted on 10 May 2006. 14. She consulted with counsel, requested consideration of her case by an administrative separation board (she had less than 6 years of service and was not entitled to a separation board), and elected to submit written statements in her behalf. She provided several statements from fellow Soldiers attesting: * she performed all her tasks in a timely manner * she was a good, hard working, conscientious Soldier * she always conducted herself in a professional way * on a bad day she met Army standards and on a good day she raised them * she was a highly-qualified NCO * her overall work performance was good * the commander prevented her from being effective in her job because of ridiculous micro-management and harassment she has to endure on a daily basis 15. On 16 August 2006, the separation authority approved the applicant's separation by reason of personality disorder under the provisions of Army Regulation 635-200, paragraph 5-13, and directed the issuance of an honorable discharge. On 21 September 2006, she was discharged accordingly. 16. Her DD Form 214 for the period ending 21 September 2006 shows in: * item 25 (Separation Authority) – Army Regulation 635-200, paragraph 5-13 * item 26 (Separation Code) – JFX * item 27 (Reentry Code) – 3 * item 28 (Narrative Reason for Separation) – Personality Disorder 17. She provided a VA Rating Decision, dated 5 July 2007, showing her claim for service connection for personality disorder was denied. 18. A review of the applicant's performance folder of her OMPF in the interactive Personnel Electronic Records Management System revealed a copy of the contested NCOER. 19. She provided a character-reference letter from her former commander (a major) for whom she worked during the period April 2003 to March 2004, dated 5 June 2015. The major attests: * the applicant has always been a tremendous asset to the military * she was an outstanding Soldier * she goes above and beyond the call of duty to ensure mission accomplishment * she exhibited leadership characteristics and strong potential early in her career 20. She provided a character-reference letter from a retired sergeant first class, dated 12 June 2015, who states: * he held the position of operations/training manager and he worked with the applicant from January 2002 to July 2004 * she is a highly-intelligent leader who takes initiative to originate a plan to solve many problems * she is a motivator who inspires others * she has strong work ethics and is committed to excellence 21. She provided a character-reference letter from a former supervisor (a sergeant first class) for whom she worked during the period January 2002 to July 2004, dated 11 July 2015, who contends: * she was a model Soldier * she has always shown great potential * she completes her tasks in a timely manner * she has been successful accomplishing her goals * she is an outstanding individual and has great potential to be an excellent leader in today's military 22. She also provided a character-reference letter from a squad leader (a sergeant first class) she worked for during the period January 2002 to July 2004, dated 11 July 2015, who attests: * she has always performed her duties in an exceptional manner * she possessed a knowledge base that was seldom seen in someone of her rank * she showed all of the characteristics of an excellent leader in the making 23. Army Regulation 635-200 prescribes policy for the administrative separation of enlisted personnel. a. Paragraph 5-13 provides for separating members by reason of personality disorder (as determined by medical authority) not amounting to disability that interferes with assignment or with performance of duty. b. Individuals will be assigned RE codes based on their service records or the reason for discharge prior to discharge or release from active duty. 24. Army Regulation 635-5-1 (Separation Program Designator (SPD)) Codes), in effect at the time, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. It stated that SPD code JFX was the appropriate code to assign to Soldiers being separated under the provisions of Army Regulation 635-200, paragraph 5-13, by reason of personality disorder. 25. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing in the Regular Army, U.S. Army Reserve, and Army National Guard. Table 3-1 provides a list of RE codes. a. RE code 1 applies to persons completing their term of active Service who is considered qualified to reenter the U.S. Army. b. RE code 3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation but the disqualification is waivable. 26. The SPD/RE Code Cross Reference Table, dated 15 June 2006, shows that Soldiers assigned the SPD code of JFX will be assigned an RE code 3. 27. Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System. This includes the DA Form 2166-8. a. Appeals based solely on statements from rating officials claiming administrative oversight or typographical error of an NCOER will normally be returned without action unless accompanied by additional substantiating evidence. b. Appeals based on administrative error will only be adjudicated by the Headquarters, Department of the Army, Evaluation Appeals Branch (AHRC-PDV-EA) for Active Army NCOERs. Claims of administrative error pertain to Parts I, II, and III of the NCOER (DA Form 2166-8). Such claims may include, but are not limited to, deviation from the established rating chain, insufficient period of observation by the rating officials, errors in the reporting period, and errors in the height/weight. c. The rated Soldier's authentication in Part II of a DA Form 2166-8 verifies the information in Part I. It also confirms that the rating officials named in Part II are those established as the rating chain and authenticates the accuracy of the Army Physical Fitness Test performance and height and weight data entries made by the rater. Appeals based on alleged administrative errors in those portions of a report previously authenticated by the rated Soldier (Parts I, II, and IIIa) will be accepted only under the most unusual and compelling circumstances. The rated Soldier's signature also verifies the rated Soldier has seen a completed evaluation report. Correction of minor administrative errors seldom serves as a basis to invalidate an evaluation report. Removal of a report for administrative reasons will be allowed only when circumstances preclude correction of errors, and then only when retention of the report would clearly result in an injustice to the Soldier. d. Alleged bias, prejudice, inaccurate or unjust ratings, or any matter other than administrative error are substantive in nature and will be adjudicated by the Army Special Review Board (ASRB). Claims of inaccuracy of a substantive type pertain to Parts III, IV, and V of the DA Form 2166-8. These are generally claims of an inaccurate or an unjust evaluation of performance or potential or claims of bias on the part of the rating officials. e. Substantive appeals will be submitted within 3 years of an NCOER "THRU" date. Failure to submit an appeal within this time will require the appellant to submit his or her appeal to the ABCMR. The ASRB will not accept appeals that are over 3 years old or appeals from Soldiers who are no longer on active duty or part of the U.S. Army Reserve or Army National Guard. f. Administrative appeals will be considered regardless of the time that has elapsed since the period of the report and a decision will be made in view of the regulation in effect at the time the evaluation report was rendered. The likelihood of successfully appealing a report diminishes, as a rule, with the passage of time. Prompt submission is, therefore, recommended. g. To justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of an administrative error or factual inaccuracy. The burden of proof rests with the appellant. 28. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes policies governing the OMPF. Table 2-1 states an NCOER will be filed permanently in the performance folder of the OMPF. 29. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. Paragraph 2-9 states 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 applicant contends her separation code, RE code, and narrative reason for separation should be changed because she was misdiagnosed as having a personality disorder. However, there is no evidence and she provided no evidence showing her personality disorder diagnosis was in error. 2. The evidence shows: * on 10 May 2006, a psychiatrist ruled out that she had an anxiety disorder * on 25 May 2006, she was diagnosed with a personality disorder by competent medical authority (licensed clinical psychologist) * on 21 September 2006, she was discharged by reason of personality disorder * in 2007, her claim for service connection for personality disorder was denied by the VA 3. Her separation code, RE code, and narrative reason for separation were administratively correct and in conformance with applicable regulations at the time of her discharge. There is no error or injustice; therefore, there is no basis for amending these entries. 4. The applicant contends the contested NCOER should be removed from her OMPF. However, there is no evidence that the information contained in the contested NCOER does not represent the considered opinion and objective judgment of the rating officials at the time of preparation. 5. The governing regulation states NCOERs will be filed in the performance folder of the OMPF. The NCOER in question is properly filed in her military records in accordance with the governing regulation. 6. Based on the foregoing evidence, there is an insufficient basis for granting the requested 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 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) AR20150012320 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150012320 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1