IN THE CASE OF: BOARD DATE: 20 July 2020 DOCKET NUMBER: AR20180001452 APPLICANT REQUESTS: correction to his DD Form 214 (Certificate of Release or Discharge from Active Duty), block 28 (Narrative Reason for Separation), to not show "Condition, Not a Disability." APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 for the period ending 27 July 2010 * Letter from National Personnel Records Center dated 18 January 2018 FACTS: 1. The applicant did not file within the 3 year time frame provided in Title 10, United States Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (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 he had no history of mental health issues of any kind prior to entering military service. He states his mental health conditions were not presumptive and, in effect, his narrative reason for separation is inaccurate. 3. The applicant enlisted in the Regular Army on 19 August 2008 in the rank and pay grade of private first class/pay grade E-3 for 3 years and 25 weeks. He successfully completed his initial Army training and was awarded military occupational specialty 92F (Petroleum Supply Specialist). On or about 30 March 2009 he reported to his first duty station, Fort Carson, Colorado. 4. The applicant has an extensive history of counseling as recorded on DA Forms 4856 (Developmental Counseling Form). In summary he was counseled on: * 29 April 2009, for failure to follow state laws, federal and post regulations by operating a personal vehicle without a valid license, without insurance and in an unsafe manner; advised he could receive nonjudicial punishment and be administratively separated for this misconduct * 15 May 2009, initial counseling by squad leader concerning standards for accountability, appearance, safety, team work, training, and chain of command in new unit * 17 June 2009, not in compliance with Army body fat standards with a body fat index of 26 percent (standard was 22 percent) * 18 June 2009, failing to be at his appointed place of duty for a medical appointment * 22 June 2009, for failure to complete required corrective training * 5 August 2009, monthly counseling for July 2009 wherein he failed to meet minimum personal hygiene standards of cleanliness including wearing of clean uniforms * 11 August and 18 August 2009, for failing to be at his appointed place of duty * 15 October 2009, for being insubordinate towards a senior noncommissioned officer (NCO), failure to obey an order or regulation and lying to an NCO; he was advised he could be administratively separated, if his misconduct continued * 3 November 2009, failure to be at his appointed place of duty at the appointed time and failure to obey orders or regulations; he was advised he could be administratively separated if his misconduct continued * 17 March 2010, for diagnostic Army Physical Fitness Test (APFT) failure * 5 April 2010, for unsatisfactory duty performance and lack of military bearing * 14 April 2010, company commander event counseling advising applicant he received a diagnosis of adjustment disorder with depressed mood and a personality disorder; told to follow orders of chain of command; told to follow the prescribed treatment of his behavioral health provider; and advised he could be considered for administrative separation and repay a portion of the enlistment bonus he received upon entry into the Army * 5 May 2010, for failure to report for duty or formation and failing to notify his leadership as to his whereabouts; failure to follow policies, regulations, or standing orders of the commander by smoking in the barracks * 12 May 2010, counseled he was being considered for administrative separation under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 5-17, for other designated physical or mental conditions; he was required to acknowledge he understood he would not be receiving a disability (medical) separation 5. The applicant’s administrative separation packet contains multiple DA Forms 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice) showing he accepted nonjudicial punishment or summarized nonjudical punishment as follows: * 13 October 2009, (summarized) for failure to go at the time prescribed to his appointed place of duty and failure to obey an NCO order * 3 December 2009, failure to obey the lawful orders of an NCO by failing to report to duty in a clean and serviceable uniform; his punishment included reduction to private/pay grade E-2, forfeiture of pay (suspended) extra duty and restriction for 14 days * 1 June 2010, for failure to obey the lawful order of a commissioned officer to not have contact with his spouse; punishment was extra duty for 14 days 6. On or about 6 April 2010, the applicant was admitted to a psychiatric hospital after a referral from the E____ P____ County Department of Human Services because a child in his care was suspiciously injured. His senior NCO reported his children were removed from his home by the E____ P____ County Department of Human Services. There also was a no contact order between him and his spouse. While hospitalized he refused all psychotropic medications stating he was upset because of problems at home or work including interpersonal relationship problems. Staff at the psychiatric hospital diagnosed him with adjustment disorder with depressed mood, personality disorder and paranoid ideations. At the time he was not logical and very emotionally disturbed. He was discharged on or about 14 April 2010 with a requirement for the unit to provide him an escort. 7. On 14 April 2010, he underwent a command-directed mental health evaluation after being advised of his rights under the provisions of Department of Defense Directive 6490.1 (Mental Health Evaluations of Member of the Armed Forces). He signed a statement indicating he understood his rights to counsel, written notice of referral, right to submit an inspector general report, if he felt the referral was not justified; and the right to be evaluated by a mental health professional of his own choosing, to include a civilian at his own expense. 8. Accordingly, he was evaluated by a civilian clinical psychologist at a military behavioral health clinic who had access to his psychiatric hospitalization records and discharge summary. She stated he was hospitalized for 1 week refusing all psychotropic medications. During her evaluation his behavior was aggressive, he was fully alert and oriented with a clear thinking process though his thought content showed signs of paranoid ideation. His memory was good. She medically opined he met the retention standards of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3. She recommended administrative separation under the provisions are Army Regulation 635-200, paragraph 5-17. Her recommendation was reviewed by a colonel in the Medical Corps who was the Chief, Department of Behavioral Health. 9. On 4 May 2010 he underwent a medical examination as part of the administrative separation process. The medical provider indicated his physical profile rating was temporary three (T3) for his lower extremities due to an ankle sprain which was improving slowly. He was rated T2 for his hearing based on audiology reports. His depression was stable and he was qualified for retention in the Army or administrative separation. The medical provider completed DA Form 2808 (Report of Medical Examination) and it is filed in his administrative separation packet. 10. On 7 June 2010, his company commander notified him by memorandum that he was initiating action to separate him under the provisions of Army Regulation 635-200, paragraph 5-17, for other designated mental or physical conditions. His commander summarized his behavioral health hospitalization and subsequent diagnoses. He also outlined his disciplinary history to include acceptance of nonjudicial punishments under the provisions of the UCMJ. He advised the applicant of his rights: * to consult with military counsel or a civilian counsel at his personal expense * to submit written statements * to obtain copies of all documents sent to the separation authority * to waive the aforementioned rights in writing 11. On 8 June 2010, the applicant acknowledge he received his company commander’s memorandum informing him action had been initiated to administratively separate him. He sought military defense counsel. In writing he acknowledged he understood the basis for the contemplated action to separate him under the provisions of Army Regulation 635-200, paragraph 5-17 for other designated mental or physical conditions and its effect on him. He declined to submit a written statement. He acknowledged he understood he may expect to encounter substantial prejudice in life if he received a general discharge, under honorable conditions. Both the applicant and counsel signed and dated the statement. 12. After consulting with counsel, the applicant’s commander prepared a memorandum for his superiors recommending the applicant’s separation from the U.S. Army prior to the expiration of his term of service due to his behavioral health condition, which was not a disability. He restated the applicant’s disciplinary history and the regulatory guidance authorizing the applicant’s early separation. He concluded by stating the applicant’s constant requirement for assistance with his family and his repeated disciplinary infractions undermined the effectiveness of the unit. 13. On 21 June 2010 the separation authority approved the company commander’s recommendation to separate the applicant under the provisions of Army Regulation 635-200, paragraph 5-17 for other designated mental or physical conditions. The separation authority directed issuance of a General Discharge Certificate and the applicant would not be transferred to the U.S. Army Reserve (Individual Ready Reserve). 14. On 28 June 2010 personnel at Fort Carson, Colorado issued Orders 179-0009 discharging the applicant effective 7 July 2010. This order was amended on 12 July 2010 with issuance of Orders 193-0005 changing the effective date to 27 July 2010. 15. Accordingly on 27 July 2010 the applicant was discharged and issued a DD Form 214 documenting his net active service this period of 1 year, 11 months and 9 days. His DD Form 214 contains the following pertinent information: * Block 23 (Type of Separation) – discharge * Block 24 (Character of Service) – honorable * Block 25 (Separation Authority) – Army Regulation 635-200, paragraph 5-17 * Block 26 (Separation Code) – JFV * Block 28 (Narrative Reason for Separation) – condition, not a disability 16. The Army Review Boards Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s medical records in the Armed Forces Health Longitudinal Technology Application (AHLTA) and Joint Legacy Viewer (JLV) and made the following findings and recommendations: a. Documentation supports the applicant’s diagnoses of Adjustment Disorder and Personality Disorder. Accordingly, no change is recommended. b. In March 2009, the applicant was seen by a case manager after endorsing depressed mood while at the Wellness Center. The case manager reported the applicant “now denies” depression and was “sarcastic, seems to like to shock others with statements like ‘You might think it’s sad that all those people died at 9-11 but then again the world is overpopulated’ and ‘states he rarely smiles, it takes too much effort’.” In May, the applicant was escorted to behavioral health after making suicidal statements and writing “an odd 1500 word assignment for leaving gear unsecured.” The applicant reported he wrote “about killing himself,” but this “was meant to be funny, he reported that he wanted to get a laugh when he saw his superiors face as they read the essay.” At follow up, the applicant noted stress “secondary to military and civilian legal issues.” He endorsed psychiatric treatment as a child and being the subject of a sexual offender investigation after his cousin “accused” him of sexual abuse. The provider diagnosed Phase of Life. The Family Advocacy Program (FAP) indicated Texas social services contacted them to follow up on the sexual abuse allegations noting the case was closed as inconclusive. In October, the applicant continued to report difficulty adjusting to life stressors. During a November psychiatry intake, the applicant reported a childhood history of cutting with occasional thoughts again. The provider noted the applicant “blames” everyone else for the pattern of misconduct, not accepting responsibility. Additionally the applicant was “rather arrogant … comments are generally critical, demeaning, and self-serving (i.e. some bitch followed me and got my license number and turned me in).” Initially the psychiatrist considered Obsessive Compulsive Disorder (OCD); however at follow up noted “seems to be more of an attitude issue with this pt than a problem with OCD sx.” The applicant still focused on others causing his difficulties other than his own responsibility and at that point he wanted to leave the Army “as soon as possible with an honorable discharge of any kind.” The provider indicated “this is more of an attitude and personality issue …”. The applicant discontinued appointments in December 2009. c. At the beginning of April 2010, the applicant’s children were removed after he brought his 1 year-old into the ER reporting the child fell down the stairs, but the staff were concerned the ankle injury could be abuse. Social services were called and in evaluating the situation visited the home which was “filthy” leading them to remove the 1 and 2 year-olds from both parents’ care. Additionally, his spouse reported domestic abuse and a restraining order was in place. The MSG reported going to the applicant’s home on multiple occasions related to the children and home standards. Moreover, the spouse was “mentally slow.” The applicant attended individual and group FAP appointments. At an April visit, the applicant was escorted to behavioral health after making suicidal and homicidal comments; he was heard stating he wanted to kill the First Sergeant and chain of command. While at behavioral health, the applicant was “hostile and uncooperative” stating if he was hospitalized he would “physically fight” the admission to include assaulting the MPs. The staff called hospital security to assist with an involuntary admission. The applicant’s discharge diagnoses were Personality Disorder and Adjustment Disorder. Administrative separation was recommended. At follow up, the applicant acknowledged he had personality traits “that he admits are a bad fit with Army life.” The applicant went back and forth with whether or not he had a history of cutting or current thoughts of cutting, although he admitted the latest report was to get hospitalized, “because I needed a break and wanted to go to the hospital.” In May 2010, the administrative separation was still being pursued, the applicant still did not accept responsibility for misconduct or issue with children, and continued to refuse therapy or medication. He was hospitalized for a short period of time again due to reporting cutting to “watch blood run down” his arm and being noncompliant with the unit watch. He was discharged with the same diagnoses. d. The applicant is not service connected by the Department of Veterans Affairs. In May 2017, the applicant went to behavioral health reporting depressive symptoms began in-service after marital discord: “she didn’t clean the house,” resulting in their children being removed and placed in foster care. In June, he reported losing his children after his wife left the kids alone in the kitchen and the oldest spilled grease on the younger; incongruent with records of an ankle injury. The applicant reported in- service a medical board was started for depression, which is incongruent with records. The provider documented symptoms “typical of a borderline personality disorder.” The applicant has not returned. 17. Army Regulation 635-8 (Separation Processing and Documents) prescribes policy and procedural guidance relating to transition management. It consolidated the policies, principles of support, and standards of service regarding processing personnel for transition. The DD Form 214 is a summary of the Soldier’s most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior action, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The DD Form 214 is not intended to have any legal effect on terminations of a Soldier’s service. When separation is ordered, the separation approval document must be present for transition processing these included the Enlisted Record Brief or Officer Record Brief, separation approval documents, separation orders and any other document authorized for filing in the personnel records. a. For Block 25 (Separation Authority) obtain the correct entry from the regulatory directives authorizing separation. b. For Block 26 (Separation Code) obtain the correct entry from Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes), which provides the corresponding SPD code for the regulatory authority and reason for separation. c. For Block 28 (Narrative Reason for Separation) it is based on the regulatory or other authority and can be checked against the cross reference tables in Army Regulation 635-5-1. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the requested relief is not warranted. The Board concurred with the opinion of the ARBA Medical Advisor that, in effect, the applicant did not have an unfitting mental health condition, but that his diagnoses of adjustment disorder and personality disorder were an appropriate basis for discharge by reason of condition, not a disability. By a preponderance of the evidence the Board determined the narrative reason for separation recorded on the applicant's DD Form 214 is not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 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. 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 ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides 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. 3. Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System and sets forth policies, responsibilities, and procedures that govern the evaluation for physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. a. Chapter 3 states 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 member reasonably may be expected to perform because of his or his office, rank, grade or rating. Only the unfitting conditions or defects and those which contribute to unfitness will be considered in arriving at the rated degree of incapacity warranting retirement or separation for disability. b. Chapter 4 provides guidance on referring Soldiers for evaluation by a medical evaluation board (MEB) when a question arises as to the Soldier's ability to perform the duties of his or his office because of physical disability. The process begins when the Soldier is issued a permanent profile approved in accordance with Army Regulation 40- 501 and the profile contains a numerical designator of P3/P4 in any of the serial profile factors for a condition that appears to not meet medical retention standards. Within one year of diagnosis, the Soldier must be assigned a P3/P4 profile for referral to the DES (IDES). 4. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. Paragraph 5-17 provides for the separation of Soldiers on the basis of other physical or mental conditions not amounting to disability under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) that potentially interfere with assignment to or performance of duty. When a commander determines 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 evaluation and/or a mental status examination in accordance with Army Regulation 40-501. Additionally, when a medical provider recommends administrative separation the chain of command will initiate administrative separation. A recommendation for separation must be supported by documentation confirming the existence of a physical or mental condition. A Soldier must be formally counselled before initiating separation action under the provisions of this paragraph. In addition, the standard notification procedure found in Army Regulation 635-200 must be followed. Unless the reason for separation requires a specific characterization, a Soldier being separated for the convenience of the Government will be awarded a character of service of honorable, under honorable conditions or an uncharacterized description of service if in entry level status. 5. Army Regulation 40-501 (Standards of Medical Fitness) effective 14 December 2007 with provides information on medical fitness standards for induction, enlistment, appointment, retention, and related policies and procedures. Soldiers with conditions listed in chapter 3 who do not meet the required medical standards will be evaluated by a medical evaluation board and may be referred to a physical evaluation board as defined in Army Regulation 635-40. Paragraph 3-36 refers to adjustment disorders and states situational maladjustments due to acute or chronic situational stress do not render an individual unfit because of physical disability (emphasis added), but may be the basis for administrative separation if recurrent and causing interference with military duty. 6. 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. 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. 7. Army Regulation 635-8 (Separation Processing and Documents) prescribes policy and procedural guidance relating to transition management. It consolidated the policies, principles of support, and standards of service regarding processing personnel for transition. The DD Form 214 is a summary of the Soldier’s most recent period of continuous active duty. It provides a brief, clear-cut record of all current active, prior action, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The DD Form 214 is not intended to have any legal effect on terminations of a Soldier’s service. When separation is ordered, the separation approval document must be present for transition processing these included the Enlisted Record Brief or Officer Record Brief, separation approval documents, separation orders and any other document authorized for filing in the personnel records. a. For Block 25 (Separation Authority) obtain the correct entry from the regulatory directives authorizing separation. b. For Block 26 (Separation Code) obtain the correct entry from Army Regulation 635-5-1, which provides the corresponding separation program designators (SPD) code for the regulatory authority and reason for separation. c. For Block 28 (Narrative Reason for Separation) it is based on the regulatory or other authority and can be checked against the cross reference tables in Army Regulation 635-5-1. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180001452 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1