IN THE CASE OF: BOARD DATE: 20 February 2020 DOCKET NUMBER: AR20170000725 APPLICANT REQUESTS: In effect, correction to his DD Form 214 (Certificate of Release or Discharge from Active Duty) as follows: * Block 25 (Separation Authority) * Block 26 (Separation Code) * Block 27 (Reentry Eligibility Code) * Block 28 (Narrative Reason for Separation) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * medical letter of treatment dated 10 April 2019 * multiple civilian training certificates from the States of Georgia, Alabama and Florida for his training as a law enforcement officer * multiple letters of commendation or certificates for his duties as a law enforcement officer * certificates of recognition by the American Police Hall of Fame, the International Narcotic Enforcement Officers Association, Venerable Order of the Knights of Michael the Archangel, and numerous other organizations * numerous county good conduct awards and certificates of appreciation for his duty performance as a law enforcement officer FACTS: 1. The applicant did not file within the 3 year time frame provided in Title 10, U.S. Code, section 1552(b); however, the ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states his reason for separation, reentry code, and separation code are unjust due to the circumstance he was facing at the time of his separation. He requests these specific entries and codes be corrected to a more favorable rating. The indication he had a personality disorder was unjust because during his period of service and immediately prior to his separation he lost a baby daughter at her birth. She died in his arms. Since his discharge he completed the requirements and received a Master’s Degree. He has served for over 20 years as a law enforcement officer and was injured in the line of duty when he was hit in the chest in February 2002. At the time of his application he was serving on his State governor’s Driving under the Influence Task Force. He did not have a personality disorder at the time of his separation and does not have it now. He concludes by stating he was a young man under duress at the time of his separation due to the loss of his child. In effect he says this situational and traumatic event should be taken into consideration when reviewing his record. 3. With prior enlisted service in the State of Florida Army National Guard, the applicant enlisted in the Regular Army entering active duty on 25 October 1988. During in- processing he completed a DD Form 93 (Record of Emergency Data) showing he was married and had a daughter who was born in June 1988. 4. Filed in his official military personnel file are numerous DA Forms 4856 (General Counseling Form) showing he was counseled as follows: * on 22 November 1988, failure to report to appointed place of duty * on 29 November 1988, violating known military and civilian rules or regulations by failing to have automobile insurance and for minor traffic violations * on 16 December 1988, failure to report to appointed place of duty * on 22 December 1988, failure to report to formation on time 5. During his 16 December 1988 counseling, he stated he was a conscientious objector informing his chain of command of his position. He also informed his unit leadership he wanted out of the U.S. Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel). During each counseling noted above he was informed he could be administratively separated with a less than honorable discharge for his misconduct. 6. On 20 December 1988, the applicant underwent a mental status examination conducted by a military social worker. His behavior appeared normal, he was fully alert, and oriented to time and space. His mood or affect was noted as unremarkable with a clear thinking process and normal thought content. His memory was good. The military social worker stated the applicant had the mental capacity to understand and participate in proceedings. He meet the enlistment retention requirements of Army Regulation 40- 501 (Standards of Medical Fitness), chapter 3. She concluded by stating he was cleared for any administrative action deemed appropriate by his chain of command. She further recommended he undergo psychological testing scheduling an appointment for him on 21 December 1988. 7. On 23 December 1988, the applicant was evaluated by a psychologist who completed a DA Form 3822 (Report of Mental Status Evaluation). During this behavioral health examination the applicant appeared anxious. The psychologist stated the applicant was experiencing an adjustment reaction to the reasonable demands of the military service and he does not possess the essential characterological and emotional strengths necessary for effective soldiering. He stated the applicant met the retention requirements of Army Regulation 40-501. He recommended to the applicant’s chain of command that they consider an administrative separation. 8. On 9 January 1989, a medical doctor completed a DA Form 3922 indicating the applicant had a personality disorder, depression and his thought content was abnormal because he was having persistent suicidal thoughts. The psychiatrist’s diagnosed the applicant with a mixed personality disorder representing a characterological and behavioral disorder under the provisions of Army Regulation 635-200, paragraph 5-13. He stated, "This condition is a deeply ingrained maladaptive pattern of behavior of long duration which interferes with his ability to perform duty. His low frustration tolerance and impulsivity make him a persistent suicide risk." Further treatment of the applicant in the military medical system was not warranted and his condition was so severe that it inhibited his ability to function in a military environment. He concluded by recommending the applicant be expeditiously administratively separated. As he was a suicide risk, he should be in the line of sight of supervisory personnel. 9. Also on 9 January 1989 the psychiatrist completed a DA Form 3349 (Physical Profile) for the applicant issuing him a psychological factor of "2" profile. The medical condition was described as an adjustment disorder with mixed emotional features and suicidal ideation with a low frustration tolerance and impulsivity. He stated the applicant required close supervision and recommended he undergo an administrative separation. 10. On 12 January 1989 the applicant’s commander notified him in writing that he was being considered for administrative separation under the provisions of Army Regulation 635-200, paragraph 5-13 based on the psychiatrist’s recommendation. He was advised of his rights: * to consult with appointed counsel or a civilian counsel of his choice at no cost to the government * to submit written statements * to obtain copies of all documents pertaining to his separation * waive his rights noted above 11. On 13 January 1989 the applicant acknowledged receipt of his administrative notification advising him he could be administratively separated for a personality disorder. He elected not to submit statements on his own behalf. He did meet with counsel to review his administrative notification document. 12. On an unknown date the applicant was hospitalized for apparent suicidal ideation. A DA Form 4700 (Medical Record – Supplemental Medical Data) shows he was discharged from the hospital on 16 January 1989. He was diagnosed with an adjustment disorder and depression. 13. On 17 January 1989 the applicant’s unit commander recommended his administrative separation prior to the completion of his expiration of term of service. Within the recommendation the unit commander stated the applicant had attempted suicide and had verbally stated he would commit suicide. All required behavioral health evaluations were completed and supporting evidence was provided with the recommendation. There was no indication his rights were violated. 14. On 20 January 1989 the separation approval authority waived the rehabilitation requirement and approved the administrative separation action under the provisions of Army Regulation 635-200, paragraph 5-13. He directed issuance of an Honorable Discharge Certificate. He did not direct transfer to the U.S. Army Reserve (Individual Ready Reserve). 15. On 25 January 1989, a personnel service center issued Orders 17-3 directing the applicant’s discharge effective the same date. Accordingly he was discharged and issued a DD Form 214 documenting his service as follows: * Block 12c (Net Active Service This Period) – 1 month and 25 days * Block 23 (Type of Separation) – discharge * Block 24 (Character of Service) – honorable * Block 25 (Separation Authority) – Army Regulation 635-200, paragraph 5-13 * Block 26 (Separation Code) – JFX * Block 27 (Reentry Eligibility Code) – RE-3 * Block 28 (Separation Authority) – personality disorder 16. In support of his application the applicant provided certificates showing his accomplishments and training as a law enforcement officer: * multiple civilian training certificates from the States of Georgia, Alabama and Florida for his training as a law enforcement officer * multiple letters of commendation or certificates for his duties as a law enforcement officer * certificates of recognition by the American Police Hall of Fame, the International Narcotic Enforcement Officers Association, Venerable Order of the Knights of Michael the Archangel, and numerous other organizations * numerous county good conduct awards and certificates of appreciation for his duty performance as a law enforcement officer 17. On 10 April 2019 the staff of the Army Review Boards Agency sent the applicant a letter requesting he provide his military medical records and his civilian medical records as evidence to support his application. On the same date he submitted a doctor’s verification of treatment letter. The medical doctor stated the applicant did not have a personality disorder. He was being treated and seen for a diagnosis of attention deficit disorder. He also had a history and treatment for post-traumatic stress disorder and major depression, which at the time of the letter were in remission. 18. In the processing of this application, a medical advisory was obtained from the Army Review Boards Agency clinical psychologist who reviewed all available evidence. She restated his military history and his periods of service. She identified and outlined his negative military disciplinary history, his mental status evaluations, history of hospitalization for attempted suicide, and the administrative discharge proceedings. She noted the applicant met the medical fitness standards outlined in Army Regulation 40-501. Upon her thorough review, irrespective of the applicant’s current functioning, at the time of his separation his providers engaged in the appropriate diagnostic steps, psychological assessment, inpatient observation and assessments. She concludes there is no evidence the diagnoses was inaccurate at the time of his military service. She opines his record should be corrected to show he had a condition, not a disability under the provisions of Army Regulation 635-200, paragraph 5-17. A copy of the complete medical advisory was provided to the Board for their review and consideration. 19. On or about 17 January 2020 the applicant was mailed a copy of the medical advisory opinion as required by law to allow him an opportunity to respond or rebut the medical advisory. He did not respond. BOARD DISCUSSION: 1. After reviewing the application, the supporting documents, the records, applicable regulations, and the facts above, the Board found that partial relief is warranted as recommended in the Board Determination and Recommendation below. 2. While the Board found sufficient evidence to correct the Separation Authority, Separation Code, and the Narrative Reason for Separation, the Reentry Eligibility Code remains a RE-3 for the corrected reason for separation. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 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 showing on his DD Form 214 for the period ending 25 January 1989 that: • Block 25 (Separation Authority) – Army Regulation 635-200, paragraph 5-17 • Block 26 (Separation Code) – JFV • Block 28 (Separation Authority) – due to a condition, not a disability 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 the block 27 (Reentry Eligibility Code) – RE-3. 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. REFERENCES: 1. Title 10, United States 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 ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 635-200, in effect at the time, prescribed policies and procedures for the administrative separation of enlisted personnel. a. An honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and duty performance. b. A general discharge was a separation under honorable conditions, and applied to those Soldiers whose military record was satisfactory, but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 5-13 (Separation Because of Personality Disorder). (1) Commanders could separate a Soldier for personality disorder (not amounting to a disability) when the condition was a deeply-ingrained maladaptive pattern of behavior of a long duration such that it interfered with his/her performance of duty; or the diagnosis had to have been established by a physician trained in psychiatry and psychiatric diagnosis. (2) Commanders were only authorized to pursue separation when the disorder was so severe the Soldier's ability to function effectively was significantly impaired. In addition, commanders could not initiate separation processing until the Soldier's chain of command had formally counseled him/her concerning deficiencies and given the Solder ample time to improve. (3) Characterization of service was honorable, unless in an entry-level status. d. Chapter 5, Section II (Secretarial Authority), states the separation of enlisted personnel for the convenience of the government is the prerogative of the Secretary of the Army. 3. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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 behavioral health 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 behavioral health condition. Members may be separated for physical or behavioral health conditions not amounting to disability, which is sufficiently severe that the Soldier's ability to effectively perform military duties is significantly impaired. 4. Army Regulation 601-210 (Active and Reserve Components Enlistment Program) covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army, U.S. Army Reserve, and Army National Guard. Table 3-1 (U.S. Army Reentry Eligibility Codes) includes a list of reentry (RE) codes. a. RE code 1 applies to Soldiers completing their terms of active service who are considered qualified to reenter the U.S. Army. They are qualified for enlistment if all other criteria are met. b. RE code 3 applies to Soldiers who are not considered fully qualified for reentry or continuous service at time of separation, but disqualification is waivable. They are ineligible for enlistment unless a waiver is granted. c. Recruiting personnel have the responsibility for initially determining whether an individual meets current enlistment criteria and are responsible for processing waivers. 5. Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific reasons for separating Soldiers from active duty and the associated SPD codes to be entered on the DD Form 214. a. SPD code JFX is the appropriate code to assign to Soldiers involuntarily discharged under the provisions of Army Regulation 635-200, paragraph 5-13, due to personality disorder. b. SPD code JFV is the appropriate code to assign to Soldiers involuntarily discharged under the provisions of Army Regulation 635-200, paragraph 5-17 due to a condition, not a disability. c. SPD code KFF is the current code for use directed by the service secretary under the provisions of Army Regulation 635-200, Chapter 5, Section Il. 6. The SPD/RE Code Cross-Reference Table provides instructions for determining the RE code for Regular Army and Reserve Component Soldiers being separated. The table in effect at the time stipulates an RE code of 3 will be assigned to members separated with an SPD code of JFX or JFV. 7. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170000725 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1