BOARD DATE: 29 June 2017 DOCKET NUMBER: AR20150016370 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 BOARD DATE: 29 June 2017 DOCKET NUMBER: AR20150016370 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: 29 June 2017 DOCKET NUMBER: AR20150016370 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 narrative reason for separation to show he was separated for "miscellaneous" instead of "personality disorder." 2. The applicant states, in effect: a. On 9 February 2000 a Case Review Committee prepared a memorandum that stated he had been involved in an alleged incident of domestic abuse. The memorandum contained recommendations for a treatment plan that included the following: * continued attendance at a men's group and parenting classes * if he failed to comply with the treatment or if his commanding officer did not agree with the Family Advocacy Program (FAP) plan, he could be separated from the service b. He was discharged on 13 June 2000 under Army Regulation (AR) 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-13, with a diagnosis of a personality disorder. His discharge was characterized as honorable and the narrative reason was "personality disorder." c. The Army committed a material error in that it failed to comply with AR 635-200, separation of Soldiers diagnosed with personality disorders. Paragraph 1-36e states counseling statements were to be made a part of the file. His record contains no evidence that: (1) A personality disorder interfered with his assignment or performance of duty and such a disorder was so severe as to significantly impair his ability to function effectively in the military environment. The 27 April 2000 separation memorandum merely stated the regulatory basis for his separation and that on 1 March 2000 he had been diagnosed with a personality disorder. (2) He had not been formally counseled concerning any deficiencies and had not been afforded ample opportunity to overcome those deficiencies as reflected by appropriate counseling or personnel records. (3) The separation proceedings commenced one month after his diagnosis; this hardly constituted an ample opportunity for him to address the alleged unfounded deficiencies. (4) There is no evidence that his discharge was given the requisite careful deliberation or that the case clearly indicated his discharge was appropriate. The separation memorandum does not allege that he failed to comply with the FAP. (5) The separation memorandum was merely conclusory as to the basis for the discharge. Specifically, the memorandum stated, "It would be in the best interest of the Army as he would not become a quality Soldier." No further justification or factual basis was provided. This is in clear violation of the requirements of the applicable regulations. d. The commanding officer alleged that he reviewed his past record, present performance, and potential for future service and advancement to render his decision to initiate separation proceedings; however, he failed to cite or reference the deficiencies in his record; while stating that there were no reductions, no record of court-martial or other non-judicial punishment, nor any other derogatory information available. e. There is no evidence in his record to indicate he ever faced disciplinary action or demonstrated substandard performance, prior to the alleged domestic abuse incident. Therefore, it is unclear as to what portion of the record his commanding officer reviewed that demonstrated unsuitability for further service. Accordingly, the basis for the discharge due to personality disorder was both unfounded and erroneous. f. Further, on 16 February 2000, 1 month prior to his personality disorder diagnosis, he sought treatment for an ankle injury. The report issued in response to the medical visit stated the applicant was mentally sound. It seems unlikely that a personality disorder of the severity required to warrant a discharge would have escaped the medical staff. g. In addition to the applicant's command's errors, the Army Discharge Review Board (ADRB) also committed a material error when that board failed to approve the applicant's request to change his narrative reason for discharge. The ADRB did not consider any of the facts of the discharge, namely that it satisfied none of the requirements of the regulation. h. In fact, the ADRB decision did not attempt a discussion of whether the commanding officer erred in his application of the regulations; rather, the decision merely stated the record confirms that based on the commander's notification, the applicant was diagnosed by a competent medical authority with a personality disorder and the commanding officer properly initiated discharge proceedings under AR 635-200, chapter 5, paragraph 5-13, due to personality disorder with a characterization of service of honorable. i. The ADRB decision clearly failed to address the issue of whether the actual separation was appropriate, namely that although his commanding officer may have "properly initiated discharge proceedings," the record neither justified the discharge nor did it meet the requirements of the governing regulations. Again, there is nothing in his record to suggest his diagnosis interfered with his ability to serve; in fact, there is no psychological report at all in in his record. j. His diagnosis of a personality disorder and subsequent discharge are particularly unjust because it is well established that for decades the Armed Forces routinely abused the personality disorder discharge. In fact, the abuse was so rampant that the U.S. Government Accountability Office (GAO) began an investigation into personality disorder discharges. After the investigation into the Department of Defense's failure to comply with personality disorder discharge protocol, the GAO released a statement that, in part, underscored the procedures that all branches of the Armed Forces must follow: (1) The service member must receive notification of the impending separation because of a personality disorder; (2) the service member must receive, prior to the notification, a diagnosis of personality disorder by a psychiatrist or psychologist who determines the personality disorder interferes with the enlisted service member's ability to function in the military; and (3) the service member must receive formal counseling about his or her problem functioning in the military. k. He contends the reason for requirement (2) above is that a diagnosis of a personality disorder is not, in and of itself, an acceptable basis for discharge. It is clearly stated that a discharged based on the diagnosis of a personality disorder is improper unless the diagnosis interferes with a member's service. l. There was no evidence that a psychologist or psychiatrist determined that his personality disorder interfered with his ability to perform his job functions. The Army's failure to comply with the regulations clearly demonstrates his diagnosis and discharge were of the type investigated by the GAO; it also means his discharge violated federal law. It is a well-established fact that the Department of Defense (DOD) knew all branches of the U.S. military were discharging service members based on unsubstantiated allegations of personality disorders. His discharge is just one of many such improper actions. This conclusion is underscored by the USGAO's statement that: [W]e found that DOD did not have reasonable assurance that its key personality disorder separation requirements had been followed by the military services ... m. Further, the psychological report that stated he suffered from a personality disorder is not a part of his personnel file. However, he underwent a subsequent psychological examination in 2013 as part of his efforts to obtain a waiver to enlist in the National Guard. This examination was comprised of a mini-mental status examination and a clinical interview. The doctor who conducted the evaluation concluded that: While it appears [the applicant] had a volatile relationship with his wife in the earliest part of their marriage that began to impair his performance in the military, the difficulty he experienced at the age of 20 appears to have been the result of emotional immaturity rather than a personality disorder. This conclusion is well aligned with the applicant's brief military history: Besides the unfounded allegations of domestic abuse the applicant's records contained no other derogatory information. n. While his discharge was characterized as honorable, as this Board knows, when a service member's DD Form 214 Certificate of Release or Discharge from Active Duty) states the reason for discharge was a personality disorder, both the diagnosis and the discharge follow him for life. o. To underscore the material injustice of the diagnosis and resultant discharge is the evidence of his personal and professional performance since his separation. As a recent psychological examination stated, he has been in a stable marriage for many years, has had no financial or legal troubles, and has been successful both academically and professionally. These accomplishments are hardly those of an individual with such a severe personality disorder as indicated by his commanding officer. p. His separation clearly failed to comply with the strict regulations outlined by DOD and the Army. The Army failed to provide any evidence to justify his discharge beyond his diagnosis of personality disorder. The reason for this failure to comply with the regulations is clearly that no justification existed. Accordingly, the material errors and material injustice of this case demonstrate that he deserves removal of the narrative reason for discharge, "personality disorder," from his record. 3. The applicant provides: * DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) * DD Form 214 * memorandum, subject: Case Review Committee (CRC) Recommendation * DA Form 2173 (Statement of Medical Examination and Duty Status) * 11 pages of separation documents * Report to Suspend Favorable Personnel Actions (Flag) * ADRB Decisional Document * GAO publication GA-10-1013T (Defense Health Care Status of Efforts to Address Lack of Compliance with personality disorder Separation Requirements) * 15 September 2014 letter of recommendation 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 23 July 1998, completed training, and was awarded military occupational specialty 96D (Imagery Analyst). 3. A DA Form 2173, dated 17 November 1999, provided by the applicant shows he was seen by a medical provider for an ankle sprain on 17 November 1999. The form makes no mention of a personality disorder. 4. On 21 January 2000, the applicant was flagged for adverse action. The reason for the flag appears to have been indebtedness. . 5. A CRC recommendation memorandum, dated 9 February 2000, shows the applicant was involved in an alleged spousal abuse incident and the Fort Hood CRC determined it was substantiated. The CRC recommended that he continue to attend a men's group and a therapeutic parenting program. 6. On 27 April 2000, the applicant's immediate commander notified the applicant of his intent to initiate separation action against him under the provisions of AR 635-200, paragraph 5-13, for a personality disorder, with an honorable discharge. The proposed action was based on a 1 March 2000 psychiatric evaluation. The applicant was advised of his rights. The applicant acknowledged notification on 27 April 2000. 7. On the same date the applicant's immediate commander recommended the applicant's discharge under the provisions AR 635-200, paragraph 5-13, for a personality disorder, with an honorable discharge. The applicant's commander stated: * there were no disciplinary actions, court-martials, or time lost * both a Report of Medical Examination and a Report of Mental Status Evaluation were attached to the recommendation at the time * he was authorized the Army Service Ribbon * further rehabilitation would be neither feasible nor appropriate in his opinion 8. On 28 April 2000, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and of the rights available to him in connection with this action. He waived his right to have his case heard by an administrative separation board, waived a personal appearance before an administrative board, and declined to submit a statement on his own behalf. 9. On 29 April 2000, the applicant's intermediate commander recommended approval of the applicant's discharge with an honorable characterization of service. 10. On 3 May 2000, trial counsel reviewed the separation packet and found the evidence in the separation packet legally sufficient to separate the applicant. 11. The separation authority approved the recommendation for separation, directing the issuance of an honorable discharge for a personality disorder under the provisions of AR 635-200, chapter 5, paragraph 5-13. The approval authority also directed that any unearned bonus may be recouped, and the applicant would not be transferred to the Individual Ready Reserve. 12. The applicant was discharged on 5 June 2000. His DD Form 214 lists his character of service as honorable and his narrative reason for separation as "personality disorder." He was assigned separation program designator (SPD) code JFX and reentry eligibility code 3. He completed 1 year, 10 months, and 13 days of creditable active service. His awards are shown as the Army Service Ribbon, Expert Marksmanship Qualification Badge with Grenade Bar, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar. 13. On 20 June 2014, the Army Discharge Review Board (ADRB) denied the applicant's request to change his narrative reason for separation. The ADRB determined that a psychiatric evaluation had been conducted on 1 March 2000, indicating the applicant suffered from a personality disorder which was consistent with the criteria for separation under the provisions of AR 635-200, paragraph  5-13. Both the applicant and the ADRB indicated that a psychological evaluation, dated 20 December 2013, was submitted at the time of the applicant's ADRB application; however, it is not currently available for review. 14. The applicant references GAO-10-1013T (Defense Health Care Status of Efforts to Address Lack of Compliance with Personality Disorder Separation Requirements), dated 15 September 2010. This report was the testimony of the Director, Health Care, Department of Veterans Affairs (VA), on the effect of a personality disorder separation and its effect on a veteran's ability to receive VA care. It dealt primarily with the effects on service members who served in areas of imminent danger. It cites two VA reviews (2008 and 2010) of DOD's compliance with regulations pertaining to the proper use of and compliance of all provisions pertaining to discharges based on a diagnosis of a personality disorder. The sample size for the review was less than 35 percent of this type of discharge and was taken from only four bases. The review sampled two Army bases, Fort Carson and Fort Hood. Neither had a greater than 73-percent compliance rate on the proper diagnosis reporting/recording requirements. 15. An advisory opinion was obtained from the Army Review Boards Agency Senior Medical Advisor wherein he stated the available evidence does not support a diagnosis of post-traumatic stress disorder, that the applicant met medical retention standards, and that personality disorders are not medically boardable conditions. 16. A copy of the advisory opinion was forwarded to the applicant with no response. REFERENCES: 1. AR 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 AR 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 or general discharge is issued as determined to be appropriate by the separation authority based upon the individuals overall record. 2. AR 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant references a GAO report, which states military branches were still not meeting the requirements for proper documentation of personality disorder diagnoses in 2010. This appears to be a report by the VA on the effect of a personality disorder discharges related to combat veterans. The earliest cited review was conducted 8 years after the applicant's discharge. 2. The applicant's contention that the 1 March 2000 psychiatric evaluation diagnosing him with a personality disorder is not in his available record is correct. However, the preponderance of the evidence shows it was available at the time of his discharge. Further, there is no subsequent evaluation available. 3. The fact that the psychiatric evaluation is not currently available for review is not evidence that his discharge was improperly executed. 4. The available evidence supports a conclusion that his behavior necessitated his command's referral for a psychiatric evaluation. Accordingly, his immediate commander initiated separation action against him as a result of a personality diagnosis. The preponderance of the evidence indicates his administrative separation was accomplished in compliance with applicable regulations at the time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016370 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016370 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2