IN THE CASE OF: BOARD DATE: 4 August 2016 DOCKET NUMBER: AR20150004705 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 IN THE CASE OF: BOARD DATE: 4 August 2016 DOCKET NUMBER: AR20150004705 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. IN THE CASE OF: BOARD DATE: 4 August 2016 DOCKET NUMBER: AR20150004705 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 the narrative reason for separation from "Condition, Not a Disability" to something different. 2. The applicant states before he joined the Army, he did not have homicidal nightmares. He now wakes up in cold sweats. His girlfriend told him he was shaking in his sleep. He has anxiety attacks on a regular basis. He also has blurry vision, aching pain, paranoia, and memory loss. He needs help, as his symptoms are getting worse. It is very hard for him to function in the civilian world. The dreams are scary and he has no place to go. The civilian world is not the same. 3. The applicant provides: * Department of Veterans Affairs (VA) progress notes * Medicaid Comprehensive Clinical Assessment * DD Form 214 (Certificate of Release or Discharge from Active Duty) 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, and 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 17 June 2008 and held military occupational specialty 92Y (Unit Supply Specialist). He was assigned to the 1st Brigade Combat Team, Fort Bliss, TX. 3. On 17 November 2009, the applicant underwent a command-directed mental health/fit for duty evaluation. He was found unfit for duty due to a serious mental condition that was not expected to be resolved within 1 year. His judgment and insight were found poor and his ability to regulate actions was very poor due to an aggressive nature and impulsivity. The examiner diagnosed him with an adjustment disorder with disturbance of emotions and conduct and cannabis abuse. The examiner recommended his administrative separation. 4. On 18 December 2009, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17, due to other designated physical or mental disorder. The immediate commander stated the applicant had been diagnosed with an adjustment disorder with disturbance of emotions and conduct. He recommended an honorable discharge. 5. On 18 December 2009, the applicant acknowledged receipt of the separation notification memorandum and subsequently consulted with legal counsel. He was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights. He acknowledged he understood that he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him. 6. Subsequent to this acknowledgement and legal consultation, the applicant's immediate commander initiated separation action against him under the provisions of AR 635-200, paragraph 5-17, due to other designated physical or mental health condition. The commander recommended not to transfer him to the Individual Ready Reserve and opined that the applicant did not possess the potential to perform useful service to meet mobilization requirements and should be discharged. The intermediate commander recommended approval. 7. On 22 December 2009, consistent with the chain of command's recommendations, the separation authority approved the applicant's discharge under the provisions of AR 635-200, paragraph 5-17, due to other designated physical or mental health condition with an honorable discharge. 8. His DD Form 214 shows he was honorably discharged on 14 January 2010 under the provisions of AR 635-200, paragraph 5-17, due to condition, not a disability. He completed 1 year, 6 months, and 28 days of creditable active military service. This form also shows the following entries: * item 26 (Separation Code) – "JFV" * item 27 (Reentry Code) – "3" 9. The Board provided his VA medical records to The Office of the Surgeon General (OTSG) for review. An OTSG official provided an advisory opinion on 6 July 2016. The official referenced the Diagnostic and Statistical Manual 5th Edition; AR 40-501 (Standards of Medical Fitness) with revision, dated 4 August 2011; and AR 635-200, dated 6 September 2011. The official stated: a. The applicant last entered active duty on 17 June 2008 and received an honorable discharge on 14 January 2010, in accordance with AR 635-200 paragraph 5-17 (Condition, Not a Disability). In March 2015, he requested that the Board upgrade his discharge due to post-traumatic stress disorder (PTSD). OTSG was asked to determine if the applicant's military separation was due to PTSD or any other behavioral health (BH) condition. This opinion is based on the information provided by the Board and records available in the DOD electronic medical record (AHLTA). b. The applicant presented to BH in November 2009 with anxiety and depression and was referred for a fit for duty evaluation. On 17 November 2009, he was diagnosed with "Adjustment Disorder with Disturbance of Emotions and Conduct" and "Cannabis Abuse" and found not fit for duty. He was administratively discharged in December. c. In July 2012, the VA determined that he neither suffered a traumatic brain injury nor met criteria for PTSD. It was further noted that he had "no exposure to a traumatic event." The diagnoses included in his Compensation and Pension (C&P) Examination were Alcohol Dependence and Cannabis Abuse on Axis I and Antisocial Personality Disorder (ASPD) on Axis II. d. In March 2015, he presented at the VA Military Trauma Treatment Program with insomnia and depression. Shortly after his initial assessment, the VA learned that he was not eligible for healthcare, as he did not have 2 years consecutive service. He subsequently sought services at Monarch where a comprehensive clinical assessment dated 26 June 2015 indicated that he was self-medicating his anxiety with alcohol. At the time, he denied any history of trauma and acknowledged multiple felony convictions. No personality disorder features were noted. e. There is no indication in his records that he met criteria for PTSD at the time of his separation. His discharge diagnoses were Adjustment Disorder and Cannabis Abuse. Similarly, his VA C&P Exam does not include a diagnosis of PTSD and the only Axis I disorders are substance use disorders. Therefore, it is not likely that his military separation was due to PTSD or any other BH condition that would fall below retention standards. REFERENCES: 1. AR 635-200 provides for the separation of enlisted personnel from active duty. Paragraph 5-17, states commanders who are special court-martial convening authorities may approve separation under this paragraph based on other physical or mental conditions not amounting to disability that potentially interfere with assignment to or performance of duty. A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition. Members may be separated for physical or mental conditions not amounting to disability, which is sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired. 2. AR 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD code to be entered on the DD Form 214. It identifies SPD code JFV as the appropriate code to assign to enlisted Soldiers who are administratively discharged under the provisions of AR 635-200, paragraph 5-17, based on a condition, not a disability. 3. AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army physical disability evaluation system (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 provides for medical evaluation boards, which are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualifications for retention based on the criteria in AR 40-501. Paragraph 3-1 provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating. To ensure all Soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in AR 40-501, chapter 3. 4. AR 40-501 governs medical fitness standards for enlistment; induction; appointment, including officer procurement programs; retention; and separation, including retirement. DISCUSSION: 1. The evidence of record shows the applicant underwent a command-directed mental health evaluation/fit for duty evaluation. He was diagnosed with "Adjustment Disorder with Disturbance of Emotions and Conduct" and "Cannabis Abuse" and found not fit for duty. As a result, his chain of command initiated separation action against him for a condition that did not amount to a disability. 2. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. His separation under the provisions of AR 635-200, paragraph 5-17, due to a condition – not a disability, was appropriate. His narrative reason for separation is correctly shown on his DD Form 214 and he has provided insufficient evidence to warrant changing this reason. 3. Requests for changing the narrative reason for separation are not granted solely for the purpose of making the applicant eligible for veteran?s benefits. Every case is individually decided based upon its merits when an applicant requests a change in his or her reason for separation. The applicant has not shown an error, an injustice, or a reason to make a correction to his military records. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150004705 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150004705 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2