IN THE CASE OF: BOARD DATE: 19 July 2022 DOCKET NUMBER: AR20220000641 APPLICANT’S REQUEST: his narrative reason for separation be changed from personality disorder to for the good of the service. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), two forms * DA Form 3822 (Report of Mental Status Evaluation) * DD Form 214 Certificate of Release or Discharge from Active Duty) * DA Form 2-1 - Part II (Personnel Qualification Record - Part II) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 there are no mental health documents to substantiate the narrative reason, no records of mental health issues, no indication of poor behavior, disciplinary actions, lost time, or counseling. The personality disorder reason is seen negatively and is not warranted or based on correct information. a. The DA Form 3822-R is based on a narrative with no reason checked for this evaluation. It does not indicate any behavior issues or opinions from the evaluator except the report. There is no indication that he had any problems meeting the standards. Furthermore, he had no disciplinary action, lost time, or counseling that indicates he had issues being a Soldier. b. He is asking for reconsideration of the requested change because he was not appropriately informed and did not have the opportunity to seek expert advice. He understood this separation to be administrative and for the good of the service discharge, and only become aware when he requested his DD Form 214. He has never had a mental health problem and has been successful in his life. 3. The applicant enlisted in the Regular Army for 4 years on 23 November 1988. 4. The applicant received adverse counseling on 4 occasions between 27 October 1989 and 22 November 1989, for various infractions as follows on: * 27 October 1989, for failure to follow instructions, a negative attitude, unsatisfactory performance, and disregard for military discipline and order * 3 November 1989, for failure to pay just debts * 15 November 1989, for a negative attitude and disregard for military discipline and order * 16 November 1989, for a negative attitude or military discipline and order, disobedience to order, and failure to follow instructions * 22 November 1989, for or a negative attitude or military discipline and order, disobedience to order, and failure to follow instructions 5. A DA Form 3822-R (Report of Mental Status Evaluation) shows the applicant was afforded a Mental Status Evaluation on 12 December 1989 and was afforded a diagnostic impression and diagnosis of a personality disorder. This condition and the problems presented by this individual are not, in the opinion of the examiner, amenable to hospitalization, treatment, transfer, disciplinary action, training or reclassification to another type of duty within the military. It is unlikely that efforts to rehabilitate or develop this individual into a satisfactory member of the military will be successful. He was found to be mentally responsible, to be able to distinguish between right from wrong and adhere to the right, and had the mental capacity to understand and participate in any proceedings deemed appropriate. 6. The applicant's immediate commander notified the applicant on 20 December 1989 of his intent to initiate action to separate the applicant under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 5-13, by the diagnosis of a personality disorder. a. On the same day, the applicant was afforded the opportunity to consult with legal counsel and waived this right. He acknowledged the contemplated separation action; the possible effects of this discharge and the procedures and rights that were available to him. He acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions was issued; that if he receive a discharge certificate/character of service which is less than honorable, he could may make application to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading; however, that an act of consideration by either board does not imply that my discharge will be upgraded. b. He understood that if he received a discharge under other than honorable conditions he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life; and elected not to submit statement(s) on his own behalf. 7. The applicant's immediate commander formally recommended the applicant's separation from service under the provisions of Army Regulation 635-200, paragraph 5- 13, on 20 December 1989. The company commander recommended the applicant be separated with an honorable discharge. 8. The separation authority approved the recommended honorable discharge on 20 January 1990, waived further counseling and rehabilitation efforts, and directed that the applicant not be transferred to the Individual Ready Reserve. He also directed that the applicant be escorted to the Special Actions Outprocessing Team Rhein Main Air Base and that the escort was to remain with the applicant until he boarded the aircraft and it had left the ground. 9. The applicant was discharged on 21 February 1990, under the provisions of Army Regulation 635-200, paragraph 5-13. The DD Form 214 he was issued shows: * he was discharged in the enlisted grade of E-2 * his service was characterized as honorable * his narrative reason for separation is shown as "personality disorder" * he had 1 year, 2 months, 21 days of net active duty service * he had 10 months and 24 day of foreign service * his separation code as "JFX" * his reentry code as "3" * he had no days of lost time * his awards are listed as the Army Service Ribbon and the Expert Qualification Badge with Rifle and Hand Grenade bars 10. Clemency guidance to the Boards for Correction of Military/Navy Records (BCM/NR) does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority to ensure each case will be assessed on its own merits. In determining whether to grant relief 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. This includes consideration of changes in policy, whereby a service member under the same circumstances today would reasonably be expected to receive a more favorable outcome. a. AR 635-40, in effect at the time, stated, per accepted medical principals, certain medical conditions, when discovered, led to the conclusion they must have existed prior to the Soldier entering military service (EPTS). Chapter 5 stated it authorized Soldiers with EPTS conditions, who had been on active duty for more than 30 days, and who were eligible for referral into the Army's DES due to their failure of medical retention standards, to waive evaluation by a PEB and request separation. Normally, Soldiers separated under the provisions of chapter 5 received an honorable discharge; however, if the Soldier was in an entry-level status at the time of processing, the DD Form 214 could describe his/her service as uncharacterized. b. The applicant contends he should have been separated for the "good of the service", the available evidence shows he underwent separation proceedings under the provisions of Army Regulation 635-200, Chapter 5 (Separation for Convenience of the Government). 12. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. 13. MEDICAL REVIEW: The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant’s military service records. The Armed Forces Health Longitudinal Technology Application (AHLTA) & Health Artifacts Image Solutions (HAIMS) was not in use at the time of his service. His hardcopy military medical records were not available for review. A review of his service record indicates the applicant received 5 negative counseling statements. On 12 Dec 1989, he was evaluated by a psychiatrist. He was diagnosed with Personality disorder, not otherwise specified with passive-aggressive and antisocial features. A review of JLV indicates the applicant has not been evaluated or treated in the VA system. He does not have a service connected disability rating. Given the stigma associated with personality disorder diagnosis, recommended changing his DD214 to Chapter 5-14, Other designated physical or mental conditions. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The Board agreed with the advisory official’s finding that after the applicant received 5 negative counseling statements, he was evaluated by a psychiatrist. He was diagnosed with Personality disorder, not otherwise specified with passive-aggressive and antisocial features. Accordingly, his chain of command initiated separation action against him. The Board found no error or injustice in the narrative reason for his separation. However, given the stigma associated with personality disorder diagnosis, the Bard voted to change his DD 214 to Chapter 5-14, Other designated physical or mental conditions. 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 to show the authority for his separation as paragraph 5-14 of AR 635- 200 and the reason for his separation as Other designated physical or mental conditions, with a corresponding Separation Code of JFV. 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 any relief in excess of that described above. 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, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, United State Code, section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 3. Army Regulation (AR) 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. 4. AR 635-200 (Personnel Separations – Enlisted Personnel) as then in effect, set forth the basic authority for the separation of enlisted personnel. It provided at: a. Army leaders at all levels must be continually aware of their obligation to provide purpose, direction, and motivation to Soldiers. It is essential that Soldiers who falter, but have the potential to serve honorably and well, be given every opportunity to succeed. Effective leadership is particularly important in the case of Soldiers serving their initial enlistments. Except as otherwise indicated in this regulation, commanders must make maximum use of counseling and rehabilitation before determining that a Soldier has no potential for further useful service and, therefore, should be separated. In this regard, commanders will ensure that adequate counseling and rehabilitative measures are taken before initiating separation proceedings for actions including personality disorders. b. Soldiers being considered for separation under paragraph 5-13 must have the diagnosis of personality disorder established by a psychiatrist or doctoral-level clinical psychologist with necessary and appropriate professional credentials who is privileged to conduct mental health evaluations for the DOD components. c. Chapter 5 (Separation for Convenience of the Government) states 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. d. Paragraph 5-13 provides that a Soldier may be separated for personality disorder (not amounting to disability (see AR 635-40) that interferes with assignment or with performance of duty, when so disposed as indicated in a, below. (1) This condition is a deeply ingrained maladaptive pattern of behavior of long duration that interferes with the Soldier's ability to perform duty. (Exceptions: combat exhaustion and other acute situational maladjustments.) The diagnosis of personality disorder must have been established by a psychiatrist or doctoral-level clinical psychologist with necessary and appropriate professional credentials who is privileged to conduct mental health evaluations for the DOD components. (2) Commanders will not take action prescribed in this chapter in lieu of disciplinary action solely to spare a Soldier who may have committed serious acts of misconduct for which harsher penalties may be imposed under the Uniform Code of Military Justice (UCMJ). (3) Separation because of personality disorder is authorized only if the diagnosis concludes that the disorder is so severe that the Soldier's ability to function effectively in the military environment is significantly impaired. (4) Separation processing may not be initiated under this paragraph until the Soldier has been counseled formally concerning deficiencies and has been afforded ample opportunity to overcome those deficiencies as reflected in appropriate counseling or personnel records. 5. Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army. It establishes standardized policy for preparing and distributing the DD Form 214 and states the entry at block 28 Narrative Reason for Separation is based on regulatory or other authority for separation. 6. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and 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) AR20220000641 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1