BOARD DATE: 30 April 2019 DOCKET NUMBER: AR20160016780 APPLICANT REQUESTS: In effect, reconsideration to change his: * Separation Code * Reentry Code * Narrative Reason for Separation APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Self-written statement * Letters of recommendation * Character reference letters * Previous Army Board for Correction of Military Records (ABCMR) Docket Number AR20090021646 with allied documents * Medical records * Military personnel records * Psychological evaluations * Resume * Awards and training certificates * Education transcripts with college degrees * Military Orders * Department of Veterans Affairs (VA) rating decision * Criminal background check FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20090021646 on 8 June 2010. 2. The applicant states: a. He is writing this letter to address that his discharge was improper. He was denied the rights available to him in the administrative discharge proceedings that could have afforded a more favorable narrative of separation. The purpose of this letter is to improve the quality of opportunities denied to him due to an improper diagnosis which was given with minimal psychiatric evaluation when multiple, equally trained professionals have rejected the diagnosis since his discharge. He humbly requests that his narrative reason for separation and reentry (RE) code be reviewed for an upgrade or change based on the events described and supporting evidence provided. b. After high school, he decided to enlist in the Army to help with his mother at home who was on renal dialysis after being diagnosed with end stage renal disease. In 2005, he enlisted into the Army on active duty status and served with distinguished honor until he was discharged under a chapter 5-13 for a personality disorder. However, he was never diagnosed with this disorder prior to his discharge. c. While serving in the Army he suffered from a torn ACL/Meniscus. Shortly after he was injured, he underwent surgery to repair his right knee and was re-assigned to a rear detachment unit while his main unit deployed to Iraq. He was given 6 months to recover before meeting his unit mid-tour in Iraq. Shortly after his surgery, in November 2006 his rear detachment unit decided that he was fit enough to deploy. d. With the constant back and forth between his doctors and rear detachment unit, he was torn between the stress of being deployed prior to making a full recovery and the stress of having an ill mother back home. The rear detachment unit began to be confrontational with him as if he were telling the doctors not to clear me for deployment. His rear detachment unit continued to send him to his doctors for clearance until one of his supervisors sat in with him and the doctors explained to his supervisors why they would not grant him clearance to deploy, and that their decision was based on what was best for his recovery. e. While being under all of this pressure from his unit and the stress from not being close to his sick mother back home, he experienced a lapse of poor judgment that was attributed to his immaturity and his inexperience. He was only 19 years old at the time and rather than facing his issues as the mature adult he is now, he regrettably admits that he turned to abusing his prescribed medication from the knee surgery and acting out for attention. When his rear detachment unit learned about this, they decided to use an isolated incident as grounds for a chapter 5-13. f. He did not understand completely what was going on or what the long-term effects of this chapter would do to his life in regards to pursuing employment. Prior to his chapter, his command denied him the opportunity to submit a statement on his own behalf in the discharge proceedings and before he knew what was happening his discharge recommendation was forwarded prior to the time allowed to submit his statement. He was not made aware that he had these rights and was out of the Army before he knew it, “under honorable conditions” but classified with a personality disorder and given a RE code of 3. He has experienced trouble obtaining jobs and also encounter problems with enlisting back in the Army. He has tried to obtain a waiver with no success. The ABCMR denied his previous request to change his RE code. g. Since discovering more details about his discharge, he is now attempting to submit another appeal with all of the additional supporting evidence he was able to obtain over the years. He has also included the military records requested and received in 2016 from the National Personnel Records Center, located in Fort Knox, Kentucky. Enclosed are his psychological evaluations over the years, character references from individuals who have known him before, during, and after his military service. In addition, included is a copy of his DD Form 214 and the response letter from the Army Board for Correction of Military Records from 2010 as well as additional supporting documents. h. In conclusion, his mother has since recovered from her kidney failure and received a transplant that has greatly improved her quality of life and health. With time, he has grown and matured with life experiences that have made him a smarter and stronger person. Prior to his chapter, he was an exceptional Soldier who performed honorably and with great distinction and attention to detail. He received awards for achievements and service. Wearing the uniform and serving in the Army was the greatest honor he could have ever achieved. He understands that this is a very complicated situation and that this letter does not do his story the justice it truly deserves. 3. On 23 August 2005, with parental consent, the applicant enlisted in the Regular Army. 4. The complete facts and circumstances surrounding the applicant's discharge are not contained in the available records. However, his DD Form 214 shows that on 12 March 2007 he was honorably discharged under the provisions of Army Regulation (AR) 635- 200 (Personnel Separations - Active Duty Enlisted Administrative Separations), paragraph 5-13, by reason of a personality disorder. He completed 1 year, 6 months, and 20 days of creditable active service. 5. The applicant’s DD Form 214 also shows in: * item 26 (Separation Code) – JFX * item 27 (Reentry Code) – 3 * item 28 (Narrative Reason for Separation) – Personality Disorder 6. In support of his claim, the applicant provided a psychological evaluation, dated 17 April 2008, which shows he was diagnosed with adjustment disorder with depressed mood. The evaluation states the applicant's prognosis is good, his mental status and symptoms are stable, and he [the applicant] reports he is ready to return to military duty. He also provided: a. Letters of recommendation and character reference letters stating in part, the applicant was an outstanding individual who was proud to serve his country and was always ready to do whatever it took to complete any mission set in front of him. He was trustworthy and responsible. The applicant always showed outstanding leadership potential and was by far one of the most responsible and dependable roommates he had ever had. It was a pleasure serving with the applicant. b. Medical and personnel records that detail his medical history, treatment, diagnosis, prognosis, and military career. c. A copy of an Army Achievement Medal. He was also authorized the National Defense Service Medal, Global War on Terrorism Service Medal, and Army Service Ribbon. d. VA rating decision dated 9 October 2007 that shows service connection for status post anterior cruciate ligament (ACL) repair, right knee (includes claim for right ACL condition and meniscus repair) is granted "with an evaluation of 10 percent (%) effective 13 March 2007. It also shows service-connection for major depression single episode, well into remission is granted with an evaluation of zero percent effective 13 March 2007. e. College transcripts and copies of college degrees. He also provided a copy of a criminal background check. 7. On 20 December 2018, a medical advisory opinion was rendered concerning this case by the Army Review Boards Agency (ARBA) psychiatrist. The Board was provided a copy of the advisory, it states, in pertinent part: a. There is no indication in the applicant's military records that he failed military medical retention standards in accordance with Army Regulation 40-501(Standards of Medical Fitness). A review of the VA electronic medical record (JLV) indicates that the applicant is 10% service connected for a knee condition and 0% service connected for Major Depression. VA records indicate that the applicant has been diagnosed with Chronic Adjustment Disorder with Depression and Anxiety. Of note, he has not been diagnosed with a Personality Disorder. b. After reviewing the applicant's ABCMR application, the applicant provided medical documentation and the applicant's military and VA medical records, it is the opinion of the ARBA psychiatrist that the applicant's maladaptive behaviors while on active duty were not due to a Personality Disorder but, rather, were due to an Adjustment Disorder caused by the stressors of family illness and unit mistreatment. As such, the applicant's chapter 5-13 separation for "Personality Disorder" is considered inappropriate. A more appropriate narrative reason for discharge would be a chapter 5-17 separation for "Other designated physical or mental conditions" (AR 635-200). 8. On 3 January 2019, a copy of the medical advisory was sent to the applicant; nevertheless, he did not respond. 9. Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel. a. Paragraph 5-13 provides that a Soldier may be separated for personality disorder, not amounting to a disability under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), that interferes with assignment to or performance of duty. The regulation requires that the condition is a deeply-ingrained maladaptive pattern of behavior of long duration that interferes with the Soldier's ability to perform duty. The diagnosis of personality disorder must have been established by a physician trained in psychiatry and psychiatric diagnosis. b. Paragraph 5-17 provides that a Soldier may be separated for other designated physical or mental conditions, not amounting to disability (AR 635–40) and excluding conditions appropriate for separation processing under paragraph 5–11 (separation of personnel who did not meet procurement medical fitness standards) or 5–13 (separation because of personality disorder) that potentially interfere with assignment to or performance of duty. When a commander determines that a soldier has a physical or mental condition that potentially interferes with assignment to or performance of duty, the commander will refer the soldier for a medical examination and/or mental status evaluation in accordance with AR 40–501. A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition. 10. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons. The regulation states the reason for discharge based on the separation code of JFX is personality disorder and the regulatory authority is Army Regulation 635-200, paragraph 5-13. It also states the reason for discharge based on the separation code of JFV is a condition, not a disability (AR 635-200, paragraph 5-17). 11. Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge. AR 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment processing into the Regular Army and the U.S. Army Reserve. Chapter 3 of that regulation prescribes basic eligibility for prior-service applicants for enlistment. That chapter includes a list of Armed Forces RE codes. * RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable * RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated 12. The SPD/RE Code Cross Reference Table, dated 15 June 2006, shows that Soldiers given an SPD of JFX and JFV will be given an RE code of 3. 13. In reaching its determination, the Board can consider the applicant's petition, his service record, and his statements in light of the published DOD guidance on equity, injustice, or clemency. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is sufficient evidence to grant partial relief. The applicant’s contentions and the medical advisory opinion were carefully considered. The advisory official opined the narrative reason for separation listed on his DD Form 214 was inappropriate, and should have shown his reason as "Other designated physical or mental conditions." The Board agreed with the advisory official. The separation code should also be changed to coincide with the corrected reason for separation. However, the Board agreed the reentry code should remain the same as he would require a waiver to reenlist into the military, BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is 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 amending his DD Form 214 for the period ending 12 March 2007 by showing in: * Item 25 (Separation Authority) the entry “AR 635-200, PARA 5-17 * Item 26 (Separation Code) the entry “JFF” * Item 28 (Narrative Reason for Separation) the entry “Other designated physical or mental conditions” 2. The Board further determined 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 to changing his reentry code. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations) provides the basic authority for the separation of enlisted personnel. a. Paragraph 5-13 provides that a Soldier may be separated for personality disorder, not amounting to a disability under Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), that interferes with assignment to or performance of duty. The regulation requires that the condition is a deeply-ingrained maladaptive pattern of behavior of long duration that interferes with the Soldier's ability to perform duty. The diagnosis of personality disorder must have been established by a physician trained in psychiatry and psychiatric diagnosis. b. Paragraph 5-17 provides that a Soldier may be separated for other designated physical or mental conditions, not amounting to disability (AR 635–40) and excluding conditions appropriate for separation processing under paragraph 5–11 (separation of personnel who did not meet procurement medical fitness standards) or 5–13 (separation because of personality disorder) that potentially interfere with assignment to or performance of duty. When a commander determines that a soldier has a physical or mental condition that potentially interferes with assignment to or performance of duty, the commander will refer the soldier for a medical examination and/or mental status evaluation in accordance with AR 40–501. A recommendation for separation must be supported by documentation confirming the existence of the physical or mental condition. 2. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) prescribes the specific authorities (regulatory, statutory, or other directives), the reasons for the separation of members from active military service, and the SPD codes to be used for these stated reasons. The regulation states the reason for discharge based on the separation code of JFX is personality disorder and the regulatory authority is Army Regulation 635-200, paragraph 5-13. It also states the reason for discharge based on the separation code of JFV is a condition, not a disability (AR 635-200, paragraph 5-17). 3. Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned RE codes based on their service records or the reason for discharge. AR 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment processing into the Regular Army and the U.S. Army Reserve. Chapter 3 of that regulation prescribes basic eligibility for prior-service applicants for enlistment. That chapter includes a list of Armed Forces RE codes. * RE-3 applies to persons who are not considered fully qualified for reentry or continuous service at the time of separation, but the disqualification is waivable * RE-1 applies to persons completing an initial term of active service who were fully qualified when last separated 4. The SPD/RE Code Cross Reference Table, dated 15 June 2006, shows that Soldiers given an SPD of JFX and JFV will be given an RE code of 3. 5. Army Regulation 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 regulation also states that 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. 6. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. ABCMR Record of Proceedings (cont) AR20160016780 4 ABCMR Record of Proceedings (cont) AR20160016780 1