MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           13 June 2000                  
	DOCKET NUMBER:   AR1999034488

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Elizabeth Buchanon 		Chairperson	
	Mr. John H. Kern 		Member	
	Ms. Barbara J. Ellis 		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:  In effect, physical disability separation or retirement, and that his separation code of “JFX” be changed to a code that does not require recoupment of his bonus.  

APPLICANT STATES:  That when he reenlisted in December 1998 he had every intention of serving another three years.  However, he was involuntarily discharged from the Army not long after seeking psychiatric treatment for a major depressive disorder.  He is receiving a 30 percent service connected disability rating from the VA for a psychological disorder.

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

The applicant served in the Army National Guard prior to his enlistment in the Regular Army on 10 April 1996.  He completed training and was assigned to Fort Carson, Colorado in June 1996 as a fire support specialist.  The applicant was promoted to pay grade E-4 on 1 December 1997, and he has received four awards of the Army Achievement Medal.  

A 1 April 1999 counseling form shows that the applicant was counseled by his commanding officer as a result of an evaluation by an Army physician, who found that he met the psychiatric criteria for separation in accordance with the provisions of Army Regulation 635-200, paragraph 5-13.  That doctor recommended that the applicant be separated from the Army if his suicidal ideations returned.  The applicant’s commanding officer informed the applicant  that he would do so if he (the applicant) continued to have suicidal ideations. 

A 22 April 1999 report of mental status evaluation indicates that the applicant had the mental capacity to understand and participate in proceedings.  That evaluation shows that he had been admitted with suicidal behavior and was unable to fully appreciate the consequences of his actions at the time of his behavior.  His condition was diagnosed as dyslymic disorder without bipolar disorder, not specified, and alcohol abuse; personality disorder, not specified; and suicide attempt by overdose.  That evaluation shows that the applicant had been readmitted on 7 April because of an overdose while drinking, and that he had a long standing history of problems with destructive behavior when stressed, and was stressed with problems with his military career.  That was his third admission to psychiatry for suicide thoughts or behavior.  The doctor recommended that the applicant be processed for administrative separation under the provisions of Army Regulation 635-200, paragraph 5-13.

In requesting an elimination packet, the applicant’s commanding officer indicated that the applicant had attempted suicide on 7 April 1999, that he had two positive urinalyses, one on 2 January 1999, and one on 15 March 1999.

On 17 May 1999 the applicant’s commanding officer notified the applicant that he was initiating action to discharge him for a personality disorder, a disorder of such severity that it impaired his ability to perform his military duties.  That official stated that the applicant would receive an honorable discharge if his separation was approved.  The applicant consulted with counsel, stated that he had been advised of the basis of the contemplated action, its effects, and the rights available to him.  He declined to submit statements in his own behalf.

The applicant’s commanding officer recommended to the separation authority that the applicant be discharged.  On 27 May 1999 the separation authority approved that recommendation and directed that the applicant receive an honorable discharge.  The applicant’s DD Form 214 is not available.   

A 4 November 1999 VA rating decision indicates that the applicant was awarded a 30 percent service connected disability rating for major depressive disorder, with psychotic features, in remission.  That decision shows that his condition was evaluated at 30 percent because of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, and since there was a likelihood of improvement, the evaluation was not considered permanent and was subject to a future review examination.  The VA rating provided a brief history of his medical problems while in the Army, and went on to say that since getting out of the Army, he had not been seen for any mental problems; and that the applicant had indicated his anxiety was improved and that he currently denied being depressed.  He was living with his father, working a new job, sleeping well, and eating OK.  He felt that his life was going in a positive direction, but was still subject to some feelings of sadness and sometimes had an emotional sense of things being pointless or hopeless.  The objective findings showed that he was anxious during the interview, but did not show psychotic symptoms or a formal thought disorder.   

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-13 establishes policy and prescribes procedures for  separating members for personality disorder (not
amounting to a disability under Army Regulation 635-40), a deeply-ingrained maladaptive pattern of behavior which interferes with the individual's ability to perform.  Prior counseling with a view to correcting deficiencies is mandatory.  The service of a soldier separated will be characterized as honorable.

Army Regulation 635-5-1 provides the specific authorities, reasons for separating soldiers, and the separation program designator (SPD) codes to be used on the DD Form 214.  A separation under the provisions of Army Regulation 635-200, paragraph 5-13 for personality disorder calls for an SPD code of “JFX”.

Title 10, United States Code, chapter 61, provides disability retirement or separation for a member who is physically unfit to perform the duties of his office, rank, grade or rating because of disability incurred while entitled to basic pay.

Army Regulation 635-40 provides that when a member is undergoing evaluation because of a referral arising during processing for separation for reasons other than physical disability, his continued performance of duty until he is scheduled for separation creates a presumption that the member is fit for duty.

Army Regulation 635-40, paragraph 3-2b states in pertinent part that 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 they can no longer continue to reasonably perform because of a physical disability incurred or aggravated in service.  

That paragraph goes on to say that when a member is being separated by reason other than physical disability, his continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he was unable to perform his duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.

Title 38, United States Code, sections 310 and 331, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

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 administrative processing for separation because of a personality disorder was proper and was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  Absent evidence to the contrary it is presumed that he was discharged on 4 June 1999 as the applicant has indicated in his request, and that his SPD code on his DD Form 214 is “JFX.”  His separation because of a personality disorder does not amount to a disability as defined by Army Regulation 635-40.  He did not have any medically unfitting disability which required physical disability processing.  Therefore, there is no basis for physical disability retirement or separation.  There is no reason to change his SPD code.

2.  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.

3.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

4.  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 that requirement.

5.  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

___jhk___  ___eb___  ___bje__  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR1999034488	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000613	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  177	108.00	
2.		
3.		
4.		
5.		
6.