BOARD DATE: 10 November 2016 DOCKET NUMBER: AR20150010790 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 November 2016 DOCKET NUMBER: AR20150010790 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 November 2016 DOCKET NUMBER: AR20150010790 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 his separation code and reentry (RE) code. 2. The applicant states, in effect, he was separated in April 1988 under the provisions of paragraph 5-13 of Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel) due to a personality disorder. This reason for discharge ultimately led to the denial of his claim for Department of Veteran Affairs (VA) benefits. Subsequent long-term medical treatment revealed he had no personality disorder. Personality disorder is a persistent life-long condition, which he does not exhibit according to current professionals' and doctors' opinions. 3. The applicant provides: * 1988 DD Form 214 (Certificate of Release or Discharge from Active Duty) * 2014 licensed psychologist?s opinion * 2014 medical doctor?s statement * 2014 psychiatric progress notes 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 period 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 30 December 1986 and he held military occupational specialty 11H (Heavy Anti-Armor Weapons Infantryman). 3. On 24 March 1988, he underwent a mental status evaluation. The division psychiatrist, a medical doctor, prepared a DA Form 2822-R (Report of Mental Status Evaluation). This form shows: a. The applicant’s behavior was hostile. He was fully alert and oriented. He displayed an anxious mood, and had clear thought process with normal thought content. He had the mental capacity to understand and participate in the administrative proceedings. He was mentally responsible, and he met the retention requirements of AR 40-501 (Standards of Medical Fitness). b. He was diagnosed with mixed personality disorder, chronic, mild. This diagnosis represents a characterological and behavioral disorder under the provisions of AR 635-200, paragraph 5-13. This condition was a deeply ingrained, maladaptive pattern of behavior of long duration, which interfered with the applicant?s ability to perform duty. The disorder and problems presented by the applicant were not amenable to hospitalization, treatment, transfer, disciplinary action, training, or reclassification within the military system. His condition was severe enough that his ability to function effectively in a military environment was significantly impaired. c. He recommended the applicant’s administrative separation be acted upon as expeditiously as possible. 4. On 12 April 1988, the applicant's immediate commander notified him of his intent to initiate separation action against him under the provisions of paragraph 5-13 of AR 635-200, due to a personality disorder. The immediate commander stated a psychiatrist had diagnosed the applicant with a personality disorder. The commander recommended an honorable characterization of service. 5. On 12 April 1988, the applicant acknowledged receipt of the separation memorandum and consulted with counsel. Counsel advised him of the basis for the contemplated separation action and its effect, of the rights available to him and the effect of any action taken by him in waiving his rights, and of the type of discharge and its effect on future enlistments or reenlistments. He waived his right to a personal appearance hearing before an administrative separation board and elected not to submit a statement. 6. Following this acknowledgement, his immediate commander initiated separation action against him in accordance with paragraph 5-13 of AR 635-200. His intermediate commander recommended approval. 7. On 20 April 1988, the separation authority approved the applicant’s separation action in accordance with paragraph 5-13 of AR 635-200. He directed issuance of an honorable discharge. Accordingly, the applicant was discharged on 29 April 1988. 8. The DD Form 214 he was issued shows he was discharged under the provisions of AR 635-200, paragraph 5-13, by reason of personality disorder. He completed 1 year and 4 months of active service. This form also shows: * item 25 (Separation Authority) – AR 635-200, paragraph 5-13 * item 26 (Separation Code) – JFX * item 28 (Narrative Reason for Separation) – Personality Disorder 9. He provides a statement, dated 22 August 2014, from a clinical psychologist who states: a. He has treated the applicant in excess of 10 years. He is a board certified, licensed psychologist. He is an expert in the diagnosis and treatment of post-traumatic stress disorder (PTSD), among other conditions. He is also presently a psychological evaluator for the California Department of Consumer Affairs Enforcement Division. Among his duties, he is required to determine if a personality disorder exists in an examinee. b. He has treated people with PTSD professionally in excess of 30 years. He has also treated people with comorbid personality disorders. If one is conversant with protocols for diagnosis in the Diagnostic and Statistical Manual of Mental Disorders (DSM)-IV, DSM 5, International Statistical Classification of Diseases and Related Health Problems (ICD) 9, ICD 10, a clinician should know that having a personality disorder (a secondary diagnosis), does not exclude a primary diagnosis, such as major depression, bipolar disorder or PTSD. To make a diagnosis of personality disorder requires clinical observation in a variety of contexts, including when the patient is high functioning, or having their best day. However, a diagnosis of personality disorder only is not an accepted diagnosis, but the title of a category. Without qualifiers of whether the clinician observed paranoid personality disorder, schizoid personality disorder, schizotypal, antisocial, borderline, histrionic, narcissistic, avoidant, dependent, obsessive-compulsive, mixed, or other (traits must be specified) personality disorder, he must conclude that the clinician who wrote the 1988 diagnosis was not conversant with how to diagnose. c. In his 10 years of treating the applicant, he never observed traits of a personality disorder. It is his opinion that the applicant’s symptoms do not meet the criteria for any personality disorder diagnosis. His symptoms meet criteria for severe PTSD (309.81 DSM-IV, ICD 9). He confirmed the application?s diagnosis through psychological testing and in coordination with several psychiatrists who examined him. The purpose of testing the applicant was to clarify his symptoms so he could effectively treat him. In State and Federal disability law (he is an expert witness for several State and Federal courts in diagnosis of disability), the diagnosis of the treating clinician always trumps that of an evaluator. Personality disorders do not go away. Under the principle of parsimony, if one of the 12 unspecified personality disorders was not observed in the past 10 years, it never existed. The applicant’s diagnoses are as follows: major depression, severe, recurrent; PTSD, chronic; traumatic brain injury, unspecified; pain disorder, related to a general medical condition; no personality disorder; post traumatic headaches associated with concussion, vertigo; sciatica, knee and other joint trauma; degenerative disk disease; and extreme stressors in all areas. His Global Assessment of Functioning (GAF) score is 55. 10. He also provides a statement, dated 22 August 2014, from a medical doctor who states he treated the applicant at an outpatient clinic. A doctor initially saw him in an urgent care clinic on 2 April 2012. He was diagnosed with depressive disorder not otherwise specified (NOS), anxiety disorder (NOS), and polysubstance abuse. Per his diagnoses, he was appropriately medicated. Since 5 June 2012, he received routine treatment in an outpatient mental health clinic. His current diagnosis is mood disorder, NOS, with a history of polysubstance abuse. His current diagnoses exclude personality disorder. Apart from intermittent depressive and anxiety symptoms, his current medications provide him with mental stability. 11. He further provides three progress notes, dated April, May, and July 2014. These documents reflect a diagnosis on Axis I – mood disorder NOS, he denies depression; has intermittent nervousness and insomnia; polysubstance abuse/dependent, but he denies any; Axis II – deferred; and Axis III – arthritis, sciatica and chronic pain, macular degeneration, vertigo episodes. 12. The Board forwarded his medical documents and separation packet to the Office of The Surgeon General (OTSG) for review. OTSG rendered an advisory opinion on 22 August 2016, in his case. An OTSG official referenced the Diagnostic and Statistical Manual-5th edition; AR 40-501 with revisions, dated 4 August 2011; and AR 635-200, dated 6 September 2011. The official stated: a. OTSG was asked to determine if the applicant's behavioral health conditions were appropriately considered during his separation processing. This opinion is based solely on the information provided by the Board. b. The applicant received positive monthly counseling statements through August 1987 when he began to put on weight. The only behavioral health condition noted in his military record is a personality disorder diagnosed by a military psychiatrist who conducted the 24 March 1988 mental status examination required prior to administrative separation. c. Post-service in April 2012, he was seen at a community clinic and diagnosed with mood disorder NOS. He was cleared by neurology for traumatic brain injury (TBI). In a letter dated 22 August 2014, a civilian psychologist notes that he has treated the applicant "in excess of 10 years" for major depressive disorder, PTSD, and TBI. There is no mention of the precipitating trauma or description of symptoms or functional impairment. A letter from his medication provider at the Santa Clara Valley Health and Hospital System includes diagnoses of depressive disorder, NOS; anxiety disorder, NOS; and polysubstance abuse by history. Both clinicians specifically state that he is not being treated for personality disorder. d. There is no evidence that he met criteria for any behavioral condition at the time of his separation. Although it is not common practice to diagnose a personality disorder in a single session, there is insufficient information to support or refute the behavioral health provider's diagnosis. In either case, records indicate that his behavioral health conditions were appropriately considered during his separation processing. 13. The applicant responded to the advisory opinion. In his response, he provided statements, dated 22 August 2014 and 26 September 2016, from Santa Clara Valley Health and Hospital System, the statement from a clinical psychologist described above, selected service medical records, and a certificate of achievement. REFERENCES: 1. AR 635-200, in effect at the time, provided the basic authority for the separation of enlisted personnel. Paragraph 5-13 stated a Soldier could be separated for personality disorder (as determined by medical authority), not amounting to disability under AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation), provided the personality disorder 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. Commanders would not take action prescribed in this paragraph in lieu of disciplinary action. The diagnosis must have concluded that the disorder was so severe that the Soldier’s ability to function in the military environment was significantly impaired. 2. Assistant Secretary of the Army (Manpower and Reserve Affairs) memorandum, subject: Enlisted Administrative Separations, dated 10 February 2009, provided immediate guidance to the field concerning administrative separation under AR 635-200, paragraph 5-13. The guidance states separation under the provisions of this paragraph was limited to enlisted Soldiers who have less than 24 months of active duty service as of the date separation proceedings were initiated. 3. AR 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of a physical disability. It provides that the mere presence of an impairment does not justify a finding of unfitness because of physical disability. 4. AR 40-501, published in 1983 and periodically updated, governs medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). It outlines medical conditions which may render an individual unfit or which may preclude enlistment and notes that both personality and adjustment disorders will be dealt with through administrative and not medical channels. Paragraph 3-32.1 stated an individual with a history of or current manifestations of personality disorder effecting duty normally did not render a Soldier unfit to perform his duties because of physical disability. Paragraph 3-32.2 stated adjustment disorders (transient, situational maladjustments due to acute or special stress) also did not render a Soldier unfit because of physical disability. Those conditions at the time rendered an individual administratively unfit for continued military service. Such conditions should be processed through administrative channels, including processing for separation in accordance with procedures outlined in AR 635-200. 5. AR 635-5-1 (Separation Program Designator (SPD) Codes) states that the SPD codes are three-character alphabetic combinations which identify reasons for and types of separation from active duty. The SPD code "JFX" is the correct code for Soldiers separating under paragraph 5-13 of AR 635-200 because of a personality disorder. The SPD/RE code cross reference table in effect then shows an SPD of "JFX" has a corresponding RE code of 3. DISCUSSION: 1. The applicant served on active duty from 30 December 1986 through 29 April 1988. a. The applicant?s chain of command determined he had difficulties performing of his military duties. Thus, a mental status evaluation was requested by his chain of command. The psychiatrist diagnosed him with a personality disorder. This diagnosis does not amount to a disability under AR 635-40. His diagnosis of a personality disorder affected his ability to function effectively in a military environment. As a result, his chain of command initiated separation action under the provisions of paragraph 5-13 of AR 635-200. b. His administrative discharge under the provisions of paragraph 5-13 of AR 635-200 for a personality disorder appears to be proper . The narrative reason for his separation was based on the diagnosis he received in 1988 and was in direct relation to his military service. His discharge was administratively correct and in conformance with applicable regulations with no indication of any violations of his rights. c. His post-service medical records document a diagnosis of major depression, PTSD, TBI, and other stressors. There is no evidence in his available military medical records showing these diagnoses occurred during his military service. The applicant nor his medical doctors provided the causative factors that led to a diagnosis of PTSD. Concerning the TBI, there is no line of duty investigation or similar report in his military record showing that while on active duty he suffered a head injury or concussion that could result in a diagnosis of TBI post-service. d. An advisory official found no evidence that he met criteria for any behavioral health condition at the time of his separation and stated that, although it is not common practice to diagnose a personality disorder in a single session, there is insufficient information to support or refute the behavioral health provider's diagnosis. 2. With respect to the separation code and RE code: a. His narrative reason for separation was assigned because he was discharged under the provisions of AR 635-200, paragraph 5-13 for personality disorder. Absent this disorder, it appears there was no fundamental reason to process him for separation. b. The only valid narrative reason for separation permitted under this paragraph is "Personality Disorder" and its corresponding separation code is "JFX." The RE code associated with this separation code is RE-3. This RE code is correctly listed on his DD Form 214. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150010790 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150010790 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2