IN THE CASE OF: BOARD DATE: 11 August 2016 DOCKET NUMBER: AR20150004428 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ____X____ ___X_____ ___X_____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 11 August 2016 DOCKET NUMBER: AR20150004428 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by processing her through the PDES to determine if she should have been discharged or retired by reason of physical disability. a. In the event that a formal PEB becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of her case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. b. Should a determination be made that the applicant should have been separated as a result of a PDES, these proceedings will serve as the authority to void her administrative discharge and to issue her the appropriate separation retroactive to her original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains changing her reason and authority for discharge without benefit of an evaluation under the PDES. _____________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. IN THE CASE OF: BOARD DATE: 11 August 2016 DOCKET NUMBER: AR20150004428 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 correction of her record to show she was medically retired instead of separated for personality disorder. 2. The applicant states that, based on the Department of Veterans Affairs (VA) diagnosis of bipolar disorder rated at 50 percent disabling, she should have been retired by reason of physical disability. She states that her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she was discharged under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-13, due to personality disorder. 3. The applicant provides: * DA Form 3822-R (Report of Mental Status Evaluation), dated 10 August 2005 * DD Form 214, dated 9 September 2005 * Page 2 of a VA Rating Decision * medical records, dated 12 February and 20 March 2013 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. On 15 June 2004, the applicant enlisted in the Regular Army. She completed training as a food service specialist. 3. The applicant was counseled on six separate occasions between 10 March and 22 April 2005 for failure to go to her appointed place of duty. 4. On 10 August 2005, the applicant underwent a mental status evaluation. The DA Form 3822-R documenting the evaluation shows she was being considered for discharge for the good of the service. The examining psychologist found: a. The applicant had the mental capacity to understand and to participate in proceedings deemed appropriate by her chain of command, she was mentally responsible, and met the retention requirements of chapter 3, Army Regulation 40-501 (Standards of Medical Fitness). b. She had a history of emotional instability, multiple suicide attempts, and two psychiatric hospitalizations. She had been diagnosed with adjustment disorder and she exhibited symptoms consistent with a diagnosis of personality disorder – not otherwise specified. c. Her condition was unlikely to remit, even with continued mental health treatment. 5. The psychologist recommended a chapter 5-13 separation for personality disorder. The psychologist noted that the applicant would continue to be followed by mental health until she was separated from the service. 6. On 19 August 2005, the applicant was notified that she was being recommended for discharge under the provisions of Army Regulation 635-200, paragraph 5-13. The commander cited her personality disorder diagnosis as the basis for his recommendation. 7. She acknowledged receipt of the notification, and after consulting with counsel she elected not to submit a statement in her own behalf. 8. The appropriate authority approved the recommendation for discharge on 24 August 2005. On 9 September 2005, the applicant was honorably discharged under the provisions of Army Regulation 635-200, paragraph 5-13, by reason of personality disorder. 9. The applicant provides page 2 of a VA Rating Decision, which shows that her bipolar disorder (previously rated as major depression) was assigned a 50 percent service-connected disability rating effective 29 May 2012. She provides patient records showing she was seen and treated for mood swings on 12 February 2013 and she was seen for a brief psychotherapeutic intervention on 20 March 2013. 10. During the processing of this case, an advisory opinion was obtain from a Medical Evaluation Board (MEB)/Integrated Disability Evaluation System (IDES) Board Certified Psychiatrist who states the following: a. In his judgment, the evidence supports the presence of an affective disorder (initially manifested by depressive symptoms and currently diagnosed as bipolar disorder) that failed medical retention standards at the time of separation from active duty. b. The records review supports the presence of a significant depressive disorder that manifested in 2005, while the applicant was serving on active duty. In addition to six counseling statements for failure to go to her appointed place of duty at the designated time, the applicant required two psychiatric hospitalizations due to suicide attempts. c. The evidence supports the presence of significant depressive symptoms (diagnosed by the VA as major depression) at that time. Bipolar disorder is often associated with periods that meet the diagnostic criteria for major depressive disorder. It is not unusual for depressive symptoms to be the initial focus of attention. Periods of increased energy may be regarded as periods of improvement in depressive symptoms that are only later recognized as evidence of bipolar disorder. 12. The applicant was provided a copy of the advisory opinion, but she did not respond. REFERENCES: 1. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. Paragraph 5-13, in effect at the time, provided that a Soldier could be separated for personality disorder, not amounting to disability under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), which interfered with assignment to or performance of duty. The regulation required that the condition be a deeply-ingrained maladaptive pattern of behavior of long duration that interfered with the Soldier's ability to perform duty. The regulation also directed that commanders would not take action prescribed in this chapter in lieu of disciplinary action, required that the diagnosis concluded the disorder was so severe that the Soldier's ability to function in the military environment was significantly impaired, and stated that separation for personality disorder was not appropriate when separation was warranted under Army Regulation 635-40. 2. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency, under the operational control of the Commander, U.S. Army Human Resources Command (HRC), is responsible for administering the Physical Disability Evaluation System (PDES) and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and AR 635-40. a. The objectives of the system are to: * maintain an effective and fit military organization with maximum use of available manpower * provide benefits for eligible Soldiers whose military service is terminated because of service-connected disability * provide prompt disability processing while ensuring that the rights and interests of the government and the Soldier are protected b. Soldiers are referred to the PDES when they: * no longer meet medical retention standards in accordance with Army Regulation 40-501, chapter 3, as evidenced in an MEB * receive a permanent medical profile, P3 or P4, and are referred by an MOS Medical Retention Board * are command-referred for a fitness-for-duty medical examination * are referred by the Commander, HRC c. The PDES assessment process involves two distinct stages – the MEB and the PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability are either separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are separated receive a one-time severance payment, while service members who retire based upon disability receive monthly military retirement payments and have access to all other benefits afforded to military retirees. d. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 3. Army Regulation 635-40 establishes the Army PDES and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating. It states there is no legal requirement in arriving at the rated degree of incapacity to rate a physical condition which is not in itself considered disqualifying for military service when a Soldier is found unfit because of another condition that is disqualifying. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. 4. Army Regulation 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. Once a determination of physical unfitness is made, the PEB rates all disabilities using the Veterans Affairs Schedule for Rating Disabilities. Army Regulation 40-501, chapter 3, gives the various medical conditions and physical defects, which may render a Soldier unfit for further military service and which fall below the standards required for the individuals in paragraph 3-2, below. These medical conditions and physical defects, individually or in combination, are those that significantly limit or interfere with the Soldier's performance of his or her duties; may compromise or aggravate the Soldier's health or well-being if he or she were to remain in the military service (this may involve dependence on certain medications, appliances, severe dietary restrictions, or frequent special treatments, or a requirement for frequent clinical monitoring); may compromise the health or well-being of other Soldiers; or may prejudice the best interests of the government if the individual were to remain in the military Service. Soldiers with conditions listed in this chapter who do not meet the required medical standards will be evaluated by an MEB. a. Paragraph 3-31 (Diagnosis with Psychotic Features) states the causes for referral to an MEB are as follows: diagnosed psychiatric conditions that fail to respond to treatment or restore the Soldier to full function within 1 year of onset of treatment or mental disorders not secondary to intoxication, infections, toxic, or other organic causes, with gross impairment in reality testing, resulting in interference with social adjustment or with duty performance. b. Paragraph 3-33 (Anxiety, Somatoform, or Dissociative Disorders) states the causes for referral to an MEB are as follows: persistence or recurrence of symptoms sufficient to require extended or recurrent hospitalization, or persistence or recurrence of symptoms necessitating limitations of duty or duty in protected environment, or persistence or recurrence of symptoms resulting in interference with effective military performance. DISCUSSION: 1. Prior to discharge, the applicant underwent a mental status evaluation that diagnosed her as having a personality disorder that impacted her ability to effectively perform her duties. As a result, her chain of command initiated separation action against her under the provisions of Army Regulation 635-200, paragraph 5-13. 3. Although her complete service medical records are not available for review with this case, the existing mental status evaluation and the medical records she provided confirm she was later diagnosed with major depression and then bipolar disorder. Bipolar disorder is a condition that requires an MEB when it is suspected that the condition may fail to meet retention standards. 4. The advisory official opines she should have been referred for an MEB. An equitable resolution based on the evidence in this case may be to refer her case to the PDES for review and any action deemed appropriate based on that review. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150004428 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150004428 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2