IN THE CASE OF: BOARD DATE: 4 November 2020 DOCKET NUMBER: AR20200000277 APPLICANT REQUESTS: in effect correction to his record to show he was medically retired instead of discharged. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 22 June 2001 * Department of Veterans Affairs (VA) compensation letter dated 26 February 2002 * VA compensation letter dated 22 March 2013 * VA compensation letter dated 16 October 2018 * VA verification letter of service-connected disabilities dated 19 August 2020 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, in effect, it is an injustice that he was not medically retired because his mental health conditions started when he was serving in Kosovo. His mental health conditions ended his military career. He served our Nation with dignity, honor and respect. He now requests correction to his record to show he was medically retired. 3. In the processing of this application a staff member of the Board contacted the applicant by email requesting he submit a copy of his Army administrative separation packet and medical records to support his request for medical retirement. The applicant submitted by email his numerous VA compensation verification letters. He was not able to submit his Army administrative separation packet and a copy is not filed within his official military personnel record maintained on the Interactive Personnel Records Management System by the U.S. Army Human Resources Command at Fort Knox, Kentucky. 4. On 29 September 1997 in preparation for his enlistment in the Regular Army, the applicant underwent a physical examination by a medical doctor who initiated and completed Standard Form 88 (Report of Medical Examination). The applicant was found qualified for entrance into the U.S. Army with no profile limitations. 5. With prior service in the Army National Guard of the United States (ARNGUS) and the U.S. Army Reserve, the applicant enlisted in the Regular Army on 15 October 1997. He served in military occupational specialty 13B (Cannon Crewmember). 6. The applicant served in Kosovo from 24 November 2000 through 23 February 2001. 7. On 18 June 2001 personnel at the Baumholder Transition Center part of U.S. Army – Europe published Orders 169-01 discharging the applicant from the Regular Army effective 22 June 2001 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). 8. On 22 June 2001 the applicant was honorably discharged from the Regular Army. He was issued a DD Form 214 documenting his active duty service of 3 years, 8 months, and 8 days. His DD Form 214 contains the following pertinent information: * Block 23 (Type of Separation) – discharge * Block 25 (Separation Authority) – Army Regulation 635-200, paragraph 5-13 * Block 26 (Separation Code) – JFK * Block 28 (Narrative Reason for Separation) – personality disorder 9. The applicant provided the following evidence in support of his application. a. A VA letter dated 26 February 2002 showing the VA received his claim for service connected compensation on 16 October 2001, within 4 months of his discharge from the Regular Army. As of 1 July 2001 his service connected compensation was started for depressive disorder rated 70 percent, tinnitus rated 10 percent and a right ankle bone spur rated 0 percent. By 1 February 2002, the VA reduced his disability rating for service connected depressive disorder to 20 percent. He did not provide his VA rating decision showing why his depressive disorder was significantly reduced in 2002. b. He provides no VA documents for the period from 1 February 2002 through on or about 21 March 2013. On 22 March 2013 the VA sent him a letter showing his service connected compensation and psychiatric diagnoses were changed after his claim dated 7 June 2012 was submitted for review and evaluation. Effective 1 August 2012 he was rated 100 percent disabled by the VA for schizoaffective disorder with depressive disorder not otherwise specified. Prior to this increase the applicant was rated 70 percent for the same medical condition. c. A VA letter dated 16 October 2018 showing he is rated 100 percent for service connected disabilities and receives monthly compensation from the VA. d. A VA letter dated 19 August 2020 verifying his service connected disabilities for schizoaffective disorder with depressive disorder not otherwise specified, tinnitus and a bone spur on his right ankle. His combined rating is 100 percent. 10. Army Regulation 635-200 currently in effect states this regulation sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. This regulation implements Department of Defense (DoD) Directive 1332.14 (Enlisted Administrative Separations) and various provisions of Title 10, U.S. Code. Within this regulation paragraph 5-17 (Other designated physical or mental conditions) states commanders may approve separations on the basis of other physical or mental conditions not amounting to a disability that interfere with assignment to or performance of duty. For Soldiers who have been deployed to an area designated as an imminent danger pay area, the diagnosis of personality disorder must be corroborated by the military treatment facility chief of behavioral health. The corroborated diagnosis will be forwarded for final review and confirmation by the Director, Proponency of Behavioral Health, Office of the Surgeon General. Medical review of the personality disorder diagnosis will consider whether post-traumatic stress disorder, traumatic brain injury and/or other comorbid mental illness may be significant contributing factors to the diagnosis. 11. Based on the applicant's contention the Army Review Board Agency medical staff provided a medical review for the Board members. See the "MEDICAL REVIEW" section. MEDICAL REVIEW: 1. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: While liberal consideration was applied and applicant’s assertions considered, documentation is insufficient to determine the discharge was improper or inequitable. However, per ARBA procedures, the 5-13, Personality Disorder, should be changed to a 5-17, Condition not a Disability. 2. Due to the period of service, active duty electronic medical records are void. Hard copy medical records were unavailable. 3. The applicant is 100% service connected for Schizoaffective Disorder, initially service connected for Depression. In October 2001, the applicant was seen for anxiety and depression after an overdose related to psychosocial stressors. The applicant was hospitalized and discharged with diagnoses of Adjustment Disorder and Paranoid Personality Disorder. In May 2002, his diagnosis was Depressive Disorder. In July, the applicant’s diagnosis was Schizoaffective Disorder. In January 2007, the applicant was screened for a substance program denying “symptoms of PTSD” and reporting being discharged with “a diagnoses of personality disorder;” no further information was provided. He was hospitalized and then transferred to a substance program with diagnoses of Depressive Disorder NOS, Alcohol Abuse, and Psychotic Disorder NOS. The applicant was discharged due to a positive UA with Schizoaffective Disorder and Cocaine Abuse. In May, he had a Compensation and Pension (C&P) exam noting SC in which the provider maintained the service connection for Depression, but noted future providers should consider PTSD. The applicant has been in treatment on and off since then with additional hospitalizations related to drug use. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records, a medical advisory opinion and published DoD guidance for liberal consideration. The Board considered the applicant's statement and his record of service. The Board considered the medical records, VA documents provided by the applicant and the review and conclusions of the advising official. The Board concurred with the medical advisory opinion finding documentation is insufficient to determine the discharge was improper or inequitable. Prior to closing the case, the Board did note the analyst of record administrative notes below, and recommended the correction is completed to more accurately depict the military service of the applicant. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING XXX XXX XXX DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: Except for the correction addressed in Administrative Note(s) below, the Board found 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. 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. ADMINISTRATIVE NOTES: A review of the applicant’s record shows his DD Form 214 with the through date of 22 June 2001 should be amended with the following administrative corrections: * Block 25 (Separation Authority) – AR 635-200 - 5-17 * Block 28 (Narrative Reason for Separation) - Condition not a Disability REFERENCES: 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 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. 2. Army Regulation 635-200 effective 1 January 2001 stated this regulation set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons. This regulation implements Department of Defense (DoD) Directive 1332.14 (Enlisted Administrative Separations) and various provisions of Title 10, U.S. Code. a. Paragraph 5-3 (Secretarial plenary authority) states separation under this paragraph is the prerogative of the Secretary of the Army. Separations under this paragraph are effective only if approved by the Secretary of the Army or the Secretary’s approved designee as announced in memorandums. Separation under this paragraph may be voluntary or involuntary and is exercised on a case-by-case basis. b. Paragraph 5-13 (Separation because of personality disorder) provided the guidance for separating Soldiers who have a personality disorder not amounting to a disability under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). (1) Commanders could separate a Soldier for personality disorder (not amounting to a disability) when the condition was a deeply-ingrained maladaptive pattern of behavior of a long duration such that it interfered with his/her performance of duty. The diagnosis of personality disorder must have been established by a psychiatrist or a doctoral-level clinical psychologist with necessary and appropriate professional credentials who is privileged to conduct mental health evaluations for the DoD components. The diagnoses are as described in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV. (2) Commanders were only authorized to pursue separation when the disorder was so severe the Soldier's ability to function effectively was significantly impaired. In addition, commanders could not initiate separation processing until the Soldier's chain of command had formally counseled him/her concerning deficiencies and given the Solder ample time to improve. (3) When it was determined a Soldier should be separated under this paragraph, the unit commander was required to take actions specified in the notification procedures identified in chapter 2, section I of this regulation. * The Soldier would be notified in writing of their pending administrative separation. * The unit commander will cite specific allegations and specific regulations authorizing an administrative separation. * The Soldier would be counseled concerning the reason for discharge, the proposed character of service and the rights available to them including – * military legal counsel would be made available * submitting statements on their behalf * obtaining copies of all documents used in preparing the administrative separation packet * ability to waive their rights in writing * may withdraw their waiver of rights at any time prior to the date of separation authority orders, directs, or approves the separation (4) Characterization of service was honorable, unless in an entry-level status. c. Paragraph 5-17 (Other designated physical or mental conditions) states commanders may approve separations on the basis of other physical or mental conditions not amounting to a disability that interfere with assignment to or performance of duty. (1) Among the disorders are those manifesting disturbance of perception, thinking, emotional control, or behavior sufficiently severe that the Soldier’s ability to effectively perform military duties is significantly impaired. (In the regulatory edition in effect in 2019, Soldiers who have 24 months or more of active duty service may be separated under this paragraph based on a personality disorder.) (2) When a commander determines that a Soldier has a physical or mental condition that potentially interferes with assignment to or performance of duty, the command will refer the Soldier for a medical examination and/or mental status evaluation in accordance with Army Regulation 40-501 (Standards of Medical Fitness). Command directed mental status evaluations will comply with paragraph 1-32e which states a Soldier being considered for separation under paragraph 5-13 and 5-17 must have a diagnosis of personality disorder established by a psychiatrist or doctoral-level clinical psychologist. A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition. 3. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific reasons for separating Soldiers from active duty and the associated SPD codes to be entered on the DD Form 214. a. SPD code JFX is the appropriate code to assign to Soldiers involuntarily discharged under the provisions of Army Regulation 635-200, paragraph 5-13, due to personality disorder. b. SPD code JFV is the appropriate code to assign to Soldiers involuntarily discharged under the provisions of Army Regulation 635-200, paragraph 5-17 due to a condition, not a disability. c. SPD code KFF is the current code for use directed by the service secretary under the provisions of Army Regulation 635-200, Chapter 5, Section Il. 4. The SPD/RE Code Cross-Reference Table provides instructions for determining the RE code for Regular Army and Reserve Component Soldiers being separated. The table in effect at the time stipulates an RE code of 3 will be assigned to members separated with an SPD code of JFX or JFV. 5. Army Regulation 40-501 Chapter 3 (Medical Fitness Standards for Retention and Separation, including Retirement) provides the various medical conditions and physical defects which may render a Soldier unfit for further military service and which fall below acceptable physical standards. For anxiety, somatoform, dissociative disorders and mood disorders (depression) a Soldier can be referred to a medical evaluation board if the medical condition(s) require extended or recurrent hospitalization, limitation of duty or duty in a protected environment or interfere with effective military performance. Situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability, but may be the basis for administrative separation if recurrent and causing interference with military duties. 6. Army Regulation 635-8 (Separation Processing and Documents) prescribes policy and procedural guidance relating to transition management. It consolidated the policies, principles of support, and standards of service regarding processing personnel for transition. The DD Form 214 is a summary of the Soldier’s most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior action, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The DD Form 214 is not intended to have any legal effect on terminations of a Soldier’s service. When separation is ordered, the separation approval document must be present for transition processing these included the Enlisted Record Brief or Officer Record Brief, separation approval documents, separation orders and any other document authorized for filing in the personnel records. a. For Block 25 (Separation Authority) enter the regulatory directives authorizing separation. b. For Block 26 (Separation Code) enter the separation code from Army Regulation 635-5-1 which corresponds to the regulatory and reason for separation. c. For Block 28 (Narrative Reason for Separation) states for this block enter the narrative description as defined in regulatory authorities or directions. One can use the cross reference found in Army Regulation 635-5-1. 7. 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 under the provisions of Title 10, U.S. Code, section 1552. The ABCMR members will direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200000277 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1