IN THE CASE OF: BOARD DATE: 24 January 2023 DOCKET NUMBER: AR20220007516 APPLICANT REQUESTS: in effect, physical disability retirement and correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to reflect: * Item 25 (Separation Authority): Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirements, or Separation) vice AR 635-200 (Personnel Separations-Enlisted Personnel), Paragraph 5-13 * Item 26 (Separation Code): SFJ/JFF vice JFX * Item 28 (Narrative Reason for Separation): Physical disability or in the alternative Secretarial Authority or Miscellaneous/General Reasons vice Personality Disorder APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Counsel brief (23 pages) * Exhibit 1: Department of Veterans Affairs (DVA) rating decision, 29 June 2020 (4 pages) * Exhibit 2: Medical records (4 pages) * Exhibit 3: DD Form 214 * Exhibit 4: Statement in support of claim (2 pages) * Exhibit 5: Medical records (5 pages) * Exhibit 6: Psychology consultation report (4 pages) * Exhibit 7: Report of mental status evaluation (5 pages) * Exhibit 8: Separation packet (6 pages) * Exhibit 9: Rating decision, 11 June 2002 (3 pages) * Exhibit 10: Medical records (3 pages) * Exhibit 11: Compensation and Pension (C&P) exam report (11 pages) * Exhibit 12: C&P exam (16 pages) * Exhibit 13: Rating decision, 24 August 2012 (2 pages) * Exhibit 14: Rating decision, 2 July 2014 (2 pages) * Exhibit 15: Medical records (7 pages) * Exhibit 16: Rating decision, 29 June 2020 (4 pages) * Exhibit 17: Article (8 pages) * Exhibit 18: Personal statement (2 pages) 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 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 post-traumatic stress disorder (PTSD) because of his service, which has had a profound impact on his life ever since he was discharged in June 2000. He was wrongly diagnosed with a personality disorder, instead of with PTSD. This incorrect diagnosis has caused much hardship in his civilian life that could have been avoided if instead he had been medically retired, as he should have been. He is also filing this application to clear his name and to ensure he has access to the Army's and VA's resources available to ex-servicemen with PTSD. a. He started to first develop symptoms of PTSD after leaving his deployment in Kosovo at the beginning of 2000. The flashbacks, mood swings, sleep problems, and anxiety were totally new, and he did not know how to cope. It was almost a relief when the Army Psychologist at Landstuhl diagnosed him with PTSD; at least he had a name for what was happening. He got confused and frustrated when Walter Reed later started mentioning a personality disorder instead. b. Due to the administrative separation without medical retirement, it took him twelve years of daily suffering to finally get any benefits from the VA. He missed out on a lot of family life that he wishes he could have back. He believes his PTSD played a major role in his marriage ending, and he was not able to be as active of a father to his daughter while she grew up. c. A medical retirement for PTSD would lift a huge weight off his shoulders by helping him get the treatment he needs. It also would give him closure by clearing his name and allowing his real story to be reflected in his Army records. (The entire 2-page letter is available in documents). 3. The applicant’s counsel states in part the applicant’s medical records conclusively establish that he suffered from PTSD at the time of discharge, not a personality disorder. He therefore should have been medically retired from the Army due to his personality disorder, not administratively separated. The applicant’s discharge was also incorrect because the Army did not comply with Army and Department of Defense (DoD) regulations while discharging him for a personality disorder. a. The applicant was not processed by a Medical Evaluation Board (MEB) or Physical Evaluation Board (PEB) before his separation from the Army. Instead, like thousands of other service members, he was discharged under a now defunct version of AR 635-200, Paragraph 5-13. Had he been properly evaluated, he would have been diagnosed with PTSD, referred to an MEB, and assigned at least a fifty percent (50%) disability rating by a PEB. This finding would have entitled the applicant to military medical retirement. b. Four months before discharge, medical professionals at the Landstuhl Regional Medical Center diagnosed the applicant with PTSD from war traumas. Just two months after his discharge, medical professionals with the Department of Veterans Affairs (VA) again diagnosed him with PTSD rather than a personality disorder, and on the same rating schedule that a PEB is required to apply. Furthermore, since his discharge in 2000, the VA has repeatedly determined that he is at least seventy percent (70%) disabled due to his PTSD. The VA medical professionals even made note of his administrative separation on the basis of personality disorder yet have declined to diagnose him with a personality disorder in any subsequent follow-ups. c. Counsel discusses the applicant’s service and assignments along with some of his awards and decorations. Counsel continues to discuss the applicant’s tour in Kosovo, the onset of his PTSD symptoms, wrongful personality disorder diagnosis, and subsequent medical history. d. Counsel argues the Army should not have administratively separated the applicant for a personality disorder, but rather should have medically retired him because of his PTSD. The Army failed to properly evaluate the applicant’s PTSD after he experienced traumatic events during his deployment in Kosovo. The Army also erred by separating him for a personality disorder that he did not have and failed to follow proper procedures while doing so. e. Counsel states the applicant’s separation for personality disorder was flawed due to improper diagnosis and failure to follow separation procedures. The Landstuhl medical air evacuation summary provides a very thorough discussion of the applicant’s symptoms, noting that he met the following PTSD criteria: * Criterion A - multiple deaths and war traumas. War trauma experience is marked by intense fear and horror (death of 7-year-old twins in automobile accident) * Criterion B - Recurrent recollections through images, dreams, and psychological distress to internal grievance * Criterion C - Social withdrawal, feeling detached; With efforts to avoid feelings associated with trauma and those individuals who were in his unit while deployed * Criterion D - Insomnia, hypervigilance, and startle f. Counsel states the applicant should have received disability evaluation system processing, which would have resulted in his medical retirement. The applicant has been severely prejudiced throughout his civilian life as a result of his improper separation. g. I n closing counsel states the applicant served his country honorably in Kosovo and has suffered from debilitating PTSD as a direct result of his combat experience. The Army should have evaluated him through the proscribed formal process of the MEB, followed by the PEB. If the proper procedures were followed, the Army would have found that the applicant had PTSD and was unfit for continued service, which would have resulted in the military medical retirement that he deserved. This conclusion is fully supported by the fact that the VA has repeatedly determined that the applicant is well over fifty percent disabled due to PTSD. Unfortunately, upon his return from combat, he was treated unfairly and was quickly discharged under a now-defunct version of AR 635-000, Paragraph 5-13. h. Counsel respectfully requests the Board considers the Carson Memo, Hagel Memo and Kurta Memo in connection with his request because they were issued after his discharge and prior to these requests for reconsideration and provide significant guidance regarding discharge upgrade requests by veterans suffering from PTSD. 4. The applicant enlisted in the Regular Army on 17 January 1995. He held military occupational specialty 13F (Fire Support Specialist). He reenlisted on 12 June 1997 for a period of six years. 5. He served in Germany from 4 February 1999 until 3 February 2002. 6. The applicant provided: a. (Exhibit 6) Psychology consultation report, 4 February 2000 (4 pages) which was one part of a multidisciplinary evaluation. The diagnostic suggestions were not necessarily intended to be used as a final diagnosis of this patient. The discharge summary by the psychiatrist represents the results of the completed multidisciplinary evaluation. The following diagnostic possibilities were listed: * Axis I: Psychoactive substance abuse; Alcohol abuse; PTSD; Dysthymia * Axis II: R/O PD not otherwise specified (borderline & antisocial features) b. (Exhibit 7) Report of mental status evaluation, 24 February 2000 (5 pages) which shows the applicant was being considered for discharge because of personality disorder. The evaluation showed his behavior as normal, he was fully alert, fully oriented, his mood was anxious, he had clear thinking process, normal thought content, and good memory. The impression of the Psychiatrist was the applicant had the mental capacity to understand and participate in the proceedings and he was mentally responsible. (1) His diagnosis was Axis I: Adjustment Disorder with Mixed Anxiety and Depressed Mood Alcohol Abuse, Episodic. (2) Axis II: Narcissistic Personality Disorder. (3) In accordance with AR 635-200 - this soldier meets the criteria for chapter 5-13 administrative separation for Personality Disorder as indicated by the following behavioral manifestations defined by DSM-IV: * grandiose sense of self-importance * preoccupation with fantasies of unlimited success * sense of entitlement * requires excessive admiration * often envious of others (4) Retention of such emotionally disabled soldiers puts them at HIGH RISK to continue to engage in behaviors (substance abuse, suicide attempts, AWOL, etc.) for which psychiatric hospitalization or UCMJ action may become necessary. Further, a personality-disordered soldier represents a command liability and impairs overall unit readiness and functioning. While intense effort may result in transient improvement in behavior, such efforts are predictably short-lived in their efficacy and ultimately result in no improvement of the soldier's retention potential. The Soldier is psychiatrically cleared for any administrative/judicial action deemed appropriate by command. c. (Exhibit 8) Separation packet which shows: (1) On 18 April 2000, the applicant’s immediate commander notified him of his intent to separate him under the provisions (UP) of AR 635-200, chapter 5-13. The reason for the proposed action was he was diagnosed on 24 February 2000, by , MD, with having a personality disorder. As defined by AR 635-200, a personality disorder is a deeply ingrained, maladaptive pattern of behavior of long duration that interferes with the soldier's ability to perform duty. (2) On 20 April 2000, the applicant having been advised by consulting counsel of the basis for the contemplated action to separate him for Personality Disorder, Chapter 5-13, and its effects; of the rights available to him and the effect of any action taken by him in waiving his rights. He understood that pursuant to AR 635-200, he was entitled to have his case heard by an administrative separation board. He was afforded the opportunity to consult with consulting counsel and to consider whether or not to submit a conditional waiver. He voluntarily waived consideration of his case by an administrative separation. He did not submit statements on his behalf. (3) The applicant acknowledged receipt of the notification on 25 April 2000. He declined the opportunity and waived consulting counsel. (4) On or about 8 May 2000, the separation authority approved separation for the applicant UP of AR 635-200, chapter 5-13 for personality disorder. (5) On an unspecified date, the Chief, Administrative and Civil Law of Judge Advocate General Corp determined the separation of the applicant was legally sufficient UP of AR 635-200, chapter 5-13. 7. Orders 158-001, issued by Headquarters, United States Army Europe, Schweinfurt, Germany on 6 June 2000, shows the applicant was to be discharged on 9 June 2000, UP of AR 635-200. 8. On 9 June 2000, the applicant was honorably discharged. His DD Form 214 shows he completed 5 years, 4 months, and 23 days of net active service this period. It also shows: * Item 25: AR 635-200, paragraph 5-13 * Item 26: JFX * Item 28: Personality Disorder 9. The applicant provided: a. (Exhibit 1) DVA rating decision (4 pages) dated 29 June 2020, which shows entitlement to individual unemployability is granted effective 20 March 2020. Entitlement to individual unemployability is being based on the evaluation of his service-connected PTSD with major depressive disorder. b. (Exhibit 2) Medical records (4 pages), (Exhibit 5) Medical records (5 pages), Exhibit 10: medical records (3 pages), and Exhibit 15: Medical records (7 pages) in support of his claim. c. (Exhibit 4) Statement in support of claim, 7 June 2012 (2 pages) explaining events that led to his PTSD. d. (Exhibit 9) Rating decision, 11 June 2002 (3 pages) which shows: * Service connection for fracture of the left distal tibia * Service connection for bilateral knees * Service connection for bilateral ankle disability * Service connection for headaches * Service connection for personality disorder (claimed as PTSD) e. (Exhibit 11) C&P exam report, 7 May 2012 (11 pages) and (Exhibit 12) C&P exam, 29 June 2012 (16 pages) in support of his claim. f. Exhibit 13: Rating decision, 24 August 2012 (2 pages) showing: * PTSD rated at 70% from 5 July 2011 * fracture of left distal tibia rated at 0% from 16 June 2000 g. (Exhibit 14) Rating decision, 2 July 2014 (2 pages) showing a clear and unmistakable error occurred with the 24 August 2012 rating decision. Entitlement to an earlier effective date for service connection for PTSD currently evaluated as 70%, is granted effective 22 October 2010. h. (Exhibit 16) Rating decision, 29 June 2020 (4 pages) showing entitlement to individual unemployability is granted effective 20 March 2020. i. (Exhibit 17) Article (8 pages) regarding How Specialist Town Lost His Benefits. Wounded soldiers returning from Iraq are increasingly being wrongly diagnosed by the military, which prevents them from collecting benefits. 10. The Army rates only conditions determined to be physically unfitting at the time of discharge, which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability. 11. Title 38, U.S. Code, Sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. 12. Title 38, CFR, Part IV is the VA’s schedule for rating disabilities. The DVA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge. As a result, the DVA, operating under different policies, may award a disability rating where the Army did not find the member to be unfit to perform his duties. Unlike the Army, the DVA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings 13. MEDICAL REVIEW: a. The applicant requests, through counsel, physical disability retirement and correction of his DD Form 214 to reflect the following: * Item 25 (Separation Authority): Army Regulation (AR) 635-40 (Physical Evaluation for Retention, Retirements, or Separation) vice AR 635-200 (Personnel Separations-Enlisted Personnel), Paragraph 5-13 * Item 26 (Separation Code): SFJ/JFF vice JFX * Item 28 (Narrative Reason for Separation): Physical disability or in the alternative Secretarial Authority or Miscellaneous/General Reasons vice Personality Disorder b. The applicant, through counsel, contends he had PTSD during his time in service but was wrongly diagnosed with personality disorder and administratively separated. c. The specific facts and circumstances of the case can be found in the ABCMR Record of Proceedings (ROP). Pertinent to this advisory are the following: 1) The applicant enlisted into the Regular Army on 17 January 1995; 2) He served in Germany from 4 February 1999 to 3 February 2002 and reportedly served in Kosovo from June 1999 to December 1999; 3) On or about 2 February 2000 the applicant was hospitalized at Landstuhl Regional Medical Center (LRMC), Germany, with depressive and anxiety symptoms, suicidal ideation, and other symptoms associated with his time in Kosovo; 4) On or about 9 February 2000 he was discharged and air evacuated to Walter Reed Army Medical Center (WRAMC) for evaluation for possible MEB. His discharge diagnoses from LRMC were PTSD and Alcohol Dependence; 4) While at WRAMC the a treating provider determined the applicant met diagnostic criteria for Adjustment Disorder with mixed anxiety and depressed mood, Alcohol Abuse episodic, and Narcissistic Personality Disorder. The provider recommended the applicant be administratively separated due to personality disorder; 5) On 18 April 2000, the applicant’s immediate commander notified the applicant of his intent to separate him under the provisions (UP) of AR 635-200, chapter 5-13; 6) The applicant was separated on 9 June 2000, under provisions of AR 635-40, Chapter 5-13 for personality disorder. d. The applicant’s active duty BH-related treatment history is well documented in the ROP and the specific facts can be found therein. What follows is a summary of that treatment history. The applicant was hospitalized at LRMC on or about 2 February 2000 with complaints of suicidal ideation, depressed mood, anxiety, nightmares, paranoia, intrusive thoughts, and hyper-arousal associated with traumatic events he experienced during his service in Kosovo. During his inpatient stay at LRMC (2 – 8 February 2000) he was diagnosed with PTSD, Major Depressive Disorder single episode, Dysthymia, and Alcohol Dependence. A determination was made to air evacuate the applicant to WRAMC for consideration for an MEB: The applicant was evacuated on 9 February 2000. e. A medical document from WRAMC, dated 13 February 2000, states that “the applicant was transferred from LRMC with the presumptive diagnoses of PTSD, MDE, and dysthymia, but that observation and participation in therapeutic milieu’s while at WRAMC did not support those diagnosis”. It should be noted that this writer did not observe a statement from LRMC that there diagnoses were presumptive. The applicant’s psychiatric stay at WRAMC was from 13 February 2000 to 24 February 2000, during which time he was diagnosed with Adjustment Disorder with mixed anxiety and depressed mood, Alcohol Abuse episodic, and Narcissistic Personality Disorder. A Reported of Mental Status Examination dated 24 February 2000, presumably completed by a WRAMC inpatient provider, shows the examiner also diagnosed the applicant with Adjustment Disorder with anxiety an depressed mood, Alcohol Abuse episodic, and Narcissistic Personality Disorder. The examiner also recommended the applicant be administratively separated for personality disorder, stating in part, “retention of emotionally disabled soldiers puts them at HIGH RISK to continue to engage in behaviors for which psychiatric hospitalization or UCMJ action may become necessary. Further, a personality-disordered soldier represents a command liability and impairs overall unit readiness and function”. The applicant was subsequently administratively separated under provisions of AR 635 – 200, Chapter 5-13, personality disorder. f. A review of the VA electronic medical record (JLV) shows the applicant is 80 percent service-connected (SC) and 70 percent SC for PTSD associated with his service in Kosovo. VA C&P Examinations dated 28 August 2000, 7 May 2012, and 27 January 2016, showed the applicant traumatic exposures included continuous exposure to dead bodies, supposed witnessing of war atrocities to include murder and rape of civilian by uniformed personnel, sanctioned killings of domestic animals, and exposure to indirect fire. The applicant reported symptoms of anxiety, depression, nightmares, hypervigilance, intrusive thoughts, irritability and sleep issues. According to the applicant, symptom onset occurred will he was on leave from Kosovo, resulting in him being psychiatrically hospitalized at LRMC before being air evacuated to WRAMC. g. The applicant’s first BH-related engagement at the VA appears to have occurred on 24 August 2000, at the Central Texas VA, during which time his first C&P Examination was conducted. Records suggest his next BH-related VA engagement also occurred at the Central Texas VA, during which time he sat for his second C&P Examination. On July 2012 the applicant was seen for a psychiatric evaluation to determine if he met criteria to participate in the Waco Texas VA PTSD Clinical Team (PCT) program for treatment of PTSD. During the encounter the applicant recanted his trauma history and reported current symptoms of fatigue, nightmares, intrusive thoughts, depressed mood, hypervigilance, and depressed mood. He was diagnosed with PTSD chronic, and Depressive Disorder; he was enrolled in the Waco PCT program and received individual and group therapy, and medication management. Records suggest the applicant has been continuously engaged in BH-related care at the VA from July 2012 to current. His most recent visit appears to have occurred on 27 December 2022, whereby he reported for Cognitive Behavioral Treatment for Depression (CBT-D). h. Based on the available information, it is the opinion of the Agency BH Advisor that there is sufficient evidence that the applicant met diagnostic criteria for PTSD while on active duty, as captured in the medical documentation dated 9 February 2000 from the LRMC treating provider. Due to the seriousness of the applicant’s symptoms, he was transferred to WRAMC for an evaluation for possible MEB. While at WRAMC he was diagnosed with Adjustment Disorder with anxiety and depressed mood, Alcohol Abuse, and narcissistic personality disorder by the treating provider at WRAMC. Further, a WRAMC provider recommended the applicant for administrative separation because of personality disorder, and the applicant was subsequently administratively separated for personality disorder. Two most post discharge from the Army, the applicant was diagnosed by the VA with service-connected PTSD associated with traumas experienced during Kosovo. Of note, neither the provider at LRMC or the Central Texas VA diagnosed the applicant with a personality disorder. Given the applicant’s trauma- related symptoms were clearly defined by the LRMC provider, and subsequently supported by VA providers approximately two months post separation from the Army, it is reasonable to assert the PTSD diagnosis was accurate during his time in service. Additionally, in absence of the personality diagnosis rendered at WRAMC, the applicant’s BH-treatment history is void of a personality disorder diagnosis. Lastly, given the diagnostic history of the applicant and possible misdiagnosis of a personality disorder, that ultimately led to the applicant’s administrative separation, it is with an abundance of caution that this advisor recommends the Board consider referring the case to DES for further consideration. Kurta Questions: (1) Does any evidence state that the applicant had a condition or experience that may excuse or mitigate a discharge? N/A. The applicant received an honorable discharge and is seeking physical disability retirement in lieu of administrative separation for personality disorder. Records indicate that while on active duty, the applicant was diagnosed with PTSD, Major Depressive Disorder single episode, Dysthymia, and Alcohol Dependence while a psychiatric inpatient at LRMC, and air evacuated to WRAMC for evaluation for possible MEB. However, while at WRAMC he was diagnosed with Adjustment Disorder with anxiety and depressed mood, Alcohol Abuse, and Narcissistic Personality Disorder by the treating provider and recommended for administrative separation, due to personality disorder. He was subsequently administratively separated. Two most post discharge from the Army, the applicant was diagnosed by the VA with service-connected PTSD associated with traumas experienced during Kosovo. Neither the provider at LRMC or the Central Texas VA diagnosed the applicant with a personality disorder. Given the applicant’s trauma- related symptoms were clearly defined by the LRMC provider, and subsequently supported by VA providers approximately two months post separation from the Army, it is reasonable to assert the PTSD diagnosis was accurate during his time in service. Additionally, in absence of the personality diagnosis rendered at WRAMC, the applicant’s BH-treatment history is void of a personality disorder diagnosis. Lastly, given the diagnostic history of the applicant and possible misdiagnosis of a personality disorder that ultimately led to the applicant’s administrative separation, it is with an abundance of caution that this advisor recommends the Board consider referring the case to DES for further consideration. (2) Did the condition exist or experience occur during military service? N/A. (3) Does the condition or experience actually excuse or mitigate the discharge? N/A. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was partially warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The applicant was honorably discharged and is seeking physical disability retirement in lieu of administrative separation for personality disorder. a. The Board reviewed and agreed with the medical reviewer’s finding that while on active duty, the applicant was diagnosed with PTSD, Major Depressive Disorder single episode, Dysthymia, and Alcohol Dependence while a psychiatric inpatient at LRMC, and air evacuated to WRAMC for evaluation for possible MEB. However, while at WRAMC he was diagnosed with Adjustment Disorder, with anxiety and depressed mood, Alcohol Abuse, and Narcissistic Personality Disorder by the treating provider and recommended for administrative separation, due to personality disorder. He was subsequently administratively separated. b. After his discharge from the Army, the applicant was diagnosed by the VA with service-connected PTSD associated with traumas experienced during Kosovo. Neither the provider at LRMC or the Central Texas VA diagnosed the applicant with a personality disorder. Given the applicant’s trauma-related symptoms were clearly defined by the LRMC provider, and subsequently supported by VA providers approximately two months post separation from the Army, it is reasonable to assert the PTSD diagnosis was accurate during his time in service. Additionally, in absence of the personality diagnosis rendered at WRAMC, the applicant’s BH-treatment history is void of a personality disorder diagnosis. c. Given the diagnostic history of the applicant and possible misdiagnosis of a personality disorder that ultimately led to the applicant’s administrative separation, while a medical retirement is premature, the Board determined his referral to the disability evaluation system for determination of fitness is warranted. 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 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 referring his records to The Office of the Surgeon General for review to determine if he should have been discharged or retired by reason of physical disability under the Disability Evaluation System (DES). a. In the event that a formal physical evaluation board (PEB) becomes necessary, the individual concerned will be issued invitational travel orders to prepare for and participate in consideration of his case by a formal PEB. All required reviews and approvals will be made subsequent to completion of the formal PEB. b. Should a determination be made that the applicant should have been separated under the DES, these proceedings will serve as the authority to void his administrative separation and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances and/or retired pay, less any entitlements already received. 2. The Board further determined that 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 changing his type of discharge without evaluation under the IDES. 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, 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 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 (AR) 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. Paragraph 5-13 states 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 5-13a. 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. It is described in the Diagnostic and Statistical Manual (DSM-IV) of Mental Disorders, 4th edition. 3. AR 635-5-1 (Separation Program Designator Codes Separation Code JFX applies to enlisted Soldiers who were separated due a personality disorder. 4. AR 635-8 (Separation Processing and Documents), 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 active, and prior inactive duty service at the time of release from active duty, retirement, or discharge. The information entered thereon reflects the conditions as they existed at the time of separation. Block 28 (Narrative Reason) is based on regulatory or other authority and can checked against the cross reference in AR 635-5-1 (Separation Program Designator (SPD) Codes). 5. Title 10, U.S. Code, chapter 61, provides the Secretaries of the Military Departments with authority to retire or discharge a member if they find the member unfit to perform military duties because of physical disability. The U.S. Army Physical Disability Agency is responsible for administering the Army physical disability evaluation system and executes Secretary of the Army decision-making authority as directed by Congress in chapter 61 and in accordance with DOD Directive 1332.18 and Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation). a. Soldiers are referred to the disability system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3, as evidenced in an MEB; when they receive a permanent medical profile rating of 3 or 4 in any factor and are referred by an MOS Medical Retention Board; and/or they are command-referred for a fitness-for-duty medical examination. b. The disability evaluation assessment process involves two distinct stages: the MEB and PEB. The purpose of the MEB is to determine whether the service member's injury or illness is severe enough to compromise his/her ability to return to full duty based on the job specialty designation of the branch of service. A PEB is an administrative body possessing the authority to determine whether or not a service member is fit for duty. A designation of "unfit for duty" is required before an individual can be separated from the military because of an injury or medical condition. Service members who are determined to be unfit for duty due to disability either are separated from the military or are permanently retired, depending on the severity of the disability and length of military service. Individuals who are "separated" receive a one-time severance payment, while veterans who retire based upon disability receive monthly military retired pay and have access to all other benefits afforded to military retirees. c. The mere presence of a medical impairment does not in and of itself justify a finding of unfitness. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier may reasonably be expected to perform because of his or her office, grade, rank, or rating. Reasonable performance of the preponderance of duties will invariably result in a finding of fitness for continued duty. A Soldier is physically unfit when a medical impairment prevents reasonable performance of the duties required of the Soldier's office, grade, rank, or rating. 6. AR 635-40 (Physical Evaluation for Retention, Retirements, or Separation) establishes the Army Disability Evaluation System and sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his office, grade, rank, 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. a. Disability compensation is not an entitlement acquired by reason of service- incurred illness or injury; rather, it is provided to Soldiers whose service is interrupted and who can no longer continue to reasonably perform because of a physical disability incurred or aggravated in military service. b. Soldiers who sustain or aggravate physically unfitting disabilities must meet the following line-of-duty criteria to be eligible to receive retirement and severance pay benefits: (1) The disability must have been incurred or aggravated while the Soldier was entitled to basic pay or as the proximate cause of performing active duty or inactive duty training. (2) The disability must not have resulted from the Soldier's intentional misconduct or willful neglect and must not have been incurred during a period of unauthorized absence. 7. AR 40-501 (Standards of Medical Fitness), in effect at the time, provided medical fitness standards of sufficient detail to ensure uniformity in medical evaluation of certain enlisted military occupational specialties and officer duty assignments in terms of medical conditions and physical defects which are causes for rejection or medical unfitness for these specialized duties. Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement) states the various medical conditions and physical defects which may render a Soldier unfit for further military service. Soldiers with conditions listed in this chapter will be evaluated by a medical board and will be referred to a physical evaluation board (PEB). 8. Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30 percent. Title 10, U.S. Code, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30 percent. 9. Title 38 U.S. Code 1110 (General - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 10. Title 38 U.S. Code 1131 (Peacetime Disability Compensation - Basic Entitlement) states for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 11. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220007516 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1