BOARD DATE: 10 May 2016 DOCKET NUMBER: AR20140020489 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ __x______ __x______ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 10 May 2016 DOCKET NUMBER: AR20140020489 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. BOARD DATE: 10 May 2016 DOCKET NUMBER: AR20140020489 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, in effect, correction of his record to show he was retired for disability. 2. The applicant states, in effect, he was discharged for a personality disorder when he should have been sent to a Medical Evaluation Board/Physical Evaluation Board (MEB/PEB) due to mental illness. Now, he has no Department of Veterans Affairs (VA) or military retirement benefits. 3. The applicant provides his DD Form 214; a DA Form 3975 (Military Police Report), dated 28 October 1997; his separation packet; Cortland County Mental Health Clinic outpatient progress notes, dated between 2005 and 2006; and a private medical statement, dated 17 November 2014. 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 Regular Army on 2 July 1996, completed training, and was awarded military occupational specialty 88H (Cargo Specialist). 3. The applicant received several negative general counseling statements between February and July 1997, including one on 30 May 1997 showing he was counseled for indebtedness by having written over $3,500 in worthless checks in the preceding 6 months. He was convicted by a civilian court for passing worthless checks, spent 30 days in jail, and had further civilian court action and jail time pending. 4. On 18 August 1997, the applicant attempted suicide by hanging himself with his belt in the shower in the barracks. The attempt was thwarted by Soldiers conducting a routine barracks inspection. 5. He was hospitalized and referred to the Womack Army Medical Center Psychiatry Service as a result of attempting suicide. The attending psychiatrist diagnosed him as suffering from a personality disorder, not otherwise specified, of a passive/aggressive type. He was recommended for and cleared for administrative separation. 6. On 28 October 1997, his unit commander initiated separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-13, for personality disorder. 7. The applicant waived his administrative rights contingent upon receipt of an honorable discharge. 8. The discharge authority approved the separation recommendation and directed the applicant be honorably discharged due to a personality disorder. 9. The applicant was honorably discharged on 17 December 1997. His DD Form 214 shows he had 1 year, 5 months, and 16 days of creditable service. The authority and narrative reason for separation are listed as Army Regulation 635-200, paragraph 5-13, personality disorder. 10. In a 17 November 2014 letter, Dr. K_____ states, in his medical opinion, the applicant should have been referred to an MEB/PEB and medically discharged because of a psychotic illness. The doctor gave a history, as provided by the applicant, of having a clear induction medical examination with no prior history of mental illness. The applicant reported that he sustained a head injury in December 1996. He stated his personality and behavior changed after that time. He reported that he had received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on at least 13 occasions. The doctor stated the applicant was diagnosed as suffering from paranoid schizophrenia in 2005. This doctor first treated the applicant in 2012 and the current diagnosis he affords the applicant is schizoaffective disorder, bipolar type. Dr. K_____ notes the applicant’s post-discharge history of homelessness and hospitalization. 11. The applicant's service medical records are not available for review and the applicant has not provided any service medical records to corroborate his claim to have incurred a head injury. 12. An advisory opinion was obtained from the Chief, Behavioral Health Division, Office of Surgeon General, dated 11 April 2016. The opinion was based solely on the information provided by the Board as the Department of Defense electronic medical record system (AHLTA) was not in use at the time of the applicant's service. The advisory official noted that although a psychiatrist makes reference, in 2014, to "significant psychiatric symptoms" and "documented symptoms of psychotic illness," there are no military records to confirm or deny that the applicant exhibited these symptoms during his military service. Given the absence of any Army health records, it is not possible to determine whether or not his behavior and condition(s) were duly considered in the processing of his administrative discharge. 13. A copy of the advisory opinion was forwarded to the applicant. He did not respond in the time allotted. REFERENCES: 1. Title 10, U.S. Code, chapter 61, provides for disability retirement or separation of 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. 2. Army Regulation 40-501 (Standards of Medical Fitness) provides medical fitness standards for retention and separation, including retirement. Chapter 3 provides the various medical conditions and physical defects that render individuals unfit for further service. Personality disorders may render individuals administratively unfit rather than unfit due to physical disability. Interference with effective performance of duty in association with these conditions is to be dealt with through appropriate administrative channels. 3. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states: * a personality disorder does not render an individual unfit because of physical disability, but may be the basis for administrative separation if recurrent and causing interference with military duty * a Soldier may be separated for personality disorder (not amounting to disability) that interferes with assignment or with performance of duty 4. 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. A diagnosis by a psychiatrist is required. Separation under this paragraph may not be used in lieu of disciplinary action solely to spare a Soldier who has committed serious acts of misconduct. An honorable discharge is issued unless an entry level separation is required. 5. Army Regulation 15-185 (ABCMR) states the ABCMR begins its consideration of each case with the presumption of administrative regularity. It will decide cases on the evidence of record and it is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The available evidence shows the applicant was diagnosed with a personality disorder in 1997 while on active duty, which became the basis for his discharge. In 2005, he was diagnosed with a psychotic disorder, possibly paranoid schizophrenia, and in 2014 he was diagnosed with schizoaffective disorder, bipolar type. 2. The available records do not contain documentary evidence indicating a diagnostic error occurred in 1997. In the absence of such evidence, it must be presumed that the applicant was not then displaying symptoms that warranted referral to an MEB/PEB. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20140020489 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20140020489 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2