AR20160002465

IN THE CASE OF:

BOARD DATE: 21 April 2016

DOCKET NUMBER: AR20160002465

BOARD VOTE:

_________ _______ ________ GRANT FULL RELIEF

________ ________ ________ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

___x____ ___x____ ___x____ DENY APPLICATION

2Enclosures
1. Board Determination/Recommendation
2. Evidence and Consideration

IN THE CASE OF:

BOARD DATE: 21 April 2016

DOCKET NUMBER: AR20160002465

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 to warrant amendment of the ABCMR’s decision in Docket Numbers AR20110012519, dated 15 December 2011 and AR20120001795, dated 28August 2012, for correction of the records of the individual concerned.

__________x_______________
CHAIRPERSON

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.

IN THE CASE OF:

BOARD DATE: 21 April 2016

DOCKET NUMBER: AR20160002465

THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1. Application for correction of military records (with supporting documents provided, if any).

2. Military Personnel Records and advisory opinions (if any).

THE APPLICANT’S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests, in effect:

a. Reconsideration of his earlier requests to change item 28 (Narrative Reason for Separation) of his DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 4 December 2007, to post-traumatic stress disorder (PTSD), and deleting personality disorder.

b. In the alternative, the narrative reason should be revised to secretarial plenary authority.

c. To personally appear before the Board.

2. The applicant states, in effect:

* he was wrongfully discharged as a result of what he contends was an incorrect diagnosis of personality disorder
* following his discharge, several different mental health professionals have diagnosed him as having PTSD; he has been receiving associated treatment
* he requested his military records under the Freedom of Information Act and, as a result, has obtained new evidence which, he asserts, shows undue command influence
* additionally, he was not given his due process in that he was not afforded counsel at the time of his separation and was denied his right to appear before an administrative separation board
* the stated reason for being denied counsel and an administrative separation board was that he and his unit were in an imminent danger/combat zone
* the psychiatrist who provided the diagnosis of personality disorder wrote in one of his emails that he was “unconcerned with what the test results may conclude” and that he felt it was “his duty” to proceed with the applicant’s discharge (implying bias on the part of the psychiatrist)
* he believes it was required at the time for the psychiatrist to obtain a second opinion, and suggests one was not done
* additionally, the diagnosing psychiatrist should not have had an interest as to whether the applicant was or was not discharged
* he (the applicant) served from 1985 to 2007, and questions why his alleged personality disorder was not discovered during all those years of honest and faithful service

3. The applicant provides:

* email correspondence, dated in or around July 2007, between Major (MAJ) BE and Mr. AJ
* 1st page of a memorandum, dated 13 August 2007, from the applicant to his commander
* statement, dated 6 November 2007, from First Sergeant (1SG) BKB
* email, dated 6 November 2007, from Mr. MHP
* letter, dated 5May 2011, from Dr. JA, Staff Psychiatrist, Department of Veterans Affairs (VA) Medical Center
* letter, dated 27 June 2013, from Dr. KJ, Staff Psychologist, VA Medical Center
* memorandum, date 3 September 2014, from the Secretary of Defense, Subject: Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade by Veterans Claiming PTSD
* seven photographs, presumably of the applicant and others
* six certificates
* personal email, dated 2 January 2007, with photo
* noncommissioned officer evaluation reports (NCOER) for rating periods from 2001 through 2002
* DA Form 1059 (Service School Academic Evaluation Report), for the period 23 June 2006 through 25 June 2006
* letter of commendation, dated 19 June 2000
* identification cards
* Orders Number 312-019, dated 8 November 2006, issued by the VAARNG, promoting the applicant to sergeant effective 15 November 2006

CONSIDERATION OF EVIDENCE:

1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant’s case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110012519, dated 15 December 2011 and AR20120001795, dated 28 August 2012.

2. The applicant submitted an initial application on 17 June 2011, which was denied. He requested reconsideration on 2 January 2012 and this request was also denied. With his current request for reconsideration, he provides new evidence, in the form of documents related to his separation, a letter from a Department of Veterans Affairs (VA) behavioral health professional, photographs, and certificates. In view of the circumstances, and as a one-time exception to policy, this application for reconsideration warrants consideration by the Board.

3. Having had prior enlisted service in the New Jersey Army National Guard (NJARNG) and the Regular Army, the applicant enlisted in the Virginia ARNG (VAARNG) for 3 years on 11 June 2005.

4. His records also show he was assigned to the 116th Infantry, Pulaski, VA. He served in Kosovo from 15 October 2006 to 1 November 2007.

5. The complete facts and circumstances surrounding his discharge action are not available for review with this case. However, his service records contain a duly-constituted DD Form 214 which shows he was discharged on 4 December 2007 in accordance with paragraph 5-13 (Separation because of personality disorder) of Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations). The narrative reason for separation was personality disorder. His character of service was honorable.

6. On 29 April 2009 and 2 May 2011, the Army Discharge Review Board (ADRB) reviewed his discharge. Additionally, he personally appeared with counsel before the 2 May 2011 ADRB. On both occasions, the ADRB determined he had been properly and equitably discharged. Accordingly, the ADRB denied his petition for a change in the narrative reason for separation.

7. The applicant provides:

a. An email, sent in or around July 2007, that includes a message from MAJ BE (the psychiatrist who the applicant asserts gave the personality disorder diagnosis) to a Mr. AJ.

(1) This email also contains a partial response from Mr. AJ. MAJ BE essentially states, with regard to the applicant, his goal is to confirm an antisocial personality disorder, and rule out bipolar disorder, so as to proceed with the applicant’s separation.

(2) Mr. AJ responds that test results did not help and were not considered valid. This was because the applicant presented himself in an extremely positive light. Additionally, the applicant “hit 11 of the 15 Lie scale items – thus he is not endorsing common human shortcoming [sic, shortcomings] and foibles to which most people admit.”

b. Memorandum, dated 13 August 2007, Subject: Separation of [applicant] under Army Regulation 635-200, chapter 5. The memorandum shows the applicant’s elections with regard to his separation action. He:

* requested consideration of his case by an administrative separation board
* requested to appear personally before the administrative separation board
* submitted statements in his own behalf
* requested consulting counsel, and representation by military and civilian counsel

c. Letter written by 1SG BKB, dated 6 November 2007, which states, in effect, the applicant did not physically speak with a defense Judge Advocate General (JAG) officer. This was because one was not available. As an alternative, Staff Sergeant B set up a conference call with a JAG officer in Germany.

d. Letter, dated 5 May 2011, written by Dr. JA, Staff Psychiatrist for a VA medical center, which affirms the applicant was under his care for treatment of anxiety disorder and ongoing exploration of other possible mental health concerns.

(1) The applicant had been screened positive for PTSD by Dr. AI, PhD, Clinical Psychologist in September 2010.
(2) The applicant’s diagnosis of PTSD was also given by a psychiatrist and a therapist associated with a public health management corporation institute. The therapist from this institute questioned the personality diagnosis and suggested the applicant did not fully meet the criteria as outlined in the American Psychiatric Association (2000) Diagnostic Statistical Manual of Mental Disorders, Fourth Edition Text Revision (DSM-IV-TR).

e. Letter, dated 27 June 2013, written by Dr. KJ, Staff Psychologist for a VA medical center, wherein the writer notes the earlier diagnosis of PTSD was confirmed by Dr. JA. The applicant was additionally diagnosed with traumatic brain injury. The writer asserts this injury was incurred during the applicant’s military service, but offers no substantiating details.

REFERENCES:

1. Army Regulation 635-200, in effect at the time, prescribed policy and procedures for active duty enlisted separations.

a. Chapter 2 (Procedures for Separation), section I (Notification Procedure) details guidance for notifying Soldiers who are being considered for separation under various paragraphs within this regulation, to include paragraph 5-13. The Soldier will be informed in writing:

(1) He or she is being recommended for separation.

(2) Whether the action may result in either discharge or release from active duty.

(3) The least favorable characterization of service or description of separation he or she could receive.

(4) The separation authority is not bound by the recommendations of initiating or intermediate commanders, and has complete discretion to direct any type of discharge and characterization of service authorized by the provisions of this regulation.

b. The Soldier will further be advised of the following rights:

(1) Consult with military counsel within a reasonable time (not less than 3duty days). The Soldier may also consult with civilian counsel at his or her own expense.

(2) Submit statements in his/her own behalf.

(3) Obtain copies of documents that will be sent to the separation authority supporting the proposed separation.

(4) If he/she has 6 or more years of total active and reserve service on the date of initiation of the recommended separation action, he or she has the right to a hearing before an administrative separation board.

(5) Waive the above rights in writing.

c. Paragraph 5-3 (Secretarial Plenary Authority) states, separation under this paragraph is the prerogative of the Secretary of the Army. This type of authority is exercised sparingly and on a case-by-case basis. It is normally used when no other provision of this regulation applies.

d. Paragraph 5-13 provided guidance for separations for personality disorders which did not amount to disability.

(1) A personality disorder is a deeply ingrained, maladaptive pattern of behavior of a long duration, which interferes with the Soldier’s ability to perform duty.

(2) 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 Department of Defense components. (Until a change was made in 2009 wherein the diagnosis had to be confirmed by The Office of the Surgeon General for the Army, only one diagnosis was needed to support separation. The 2009 change applied only to Soldiers who were deployed and were within the first 24months of active duty service).

(3) Separation under this provision is authorized only if the diagnosis concludes the disorder is so severe, the Soldier’s ability to function effectively in the military environment is significantly impaired.

(4) Separation is not appropriate when it is warranted under other chapters of the regulation (to include chapter 4(Separation for Expiration of Service Obligation) and chapter 5 (Separation for Convenience of the Government, other than paragraph 5-13), as well as Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation)).

(5) When it has been determined that separation under this paragraph is appropriate, the unit commander will take the actions specified in the notification procedure outlined in chapter 2, section I.

(6) The service of a Soldier separated under this provision will be characterized as honorable.

2. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.

a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.

b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

c. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. It states further, in paragraph 2-11, that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION:

1. The applicant’s request for a personal appearance hearing was carefully considered; however, by regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record, including independent evidence he provided, is sufficient to render a fair and equitable decision at this time. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

2. The applicant asserts there were improprieties with his separation action.

a. He claims there was undue command influence in his case, but, apart from his assertion, he offers no proof.

b. He additionally contends he was not afforded counsel, despite his election. In support, he submits a copy of the memorandum indicating his elections as well as a letter from 1SG BKB.

* the memorandum shows he requested military and civilian counsel
* the letter by 1SG BKB indicates, by virtue of being in a combat zone, military counsel was not available; however, telephonic access to military counsel was made available
* at the time the applicant was deployed in Kosovo, in an imminent danger/combat zone

c. He asserts a second diagnosis should have been made to confirm personality disorder. The regulation in effect at the time only required one diagnosis of personality disorder made by a psychiatrist or doctoral-level clinical psychologist with necessary and appropriate professional credentials who is privileged to conduct mental health evaluations for the Department of Defense components.

d. The ABCMR begins its consideration of each case assuming administrative regularity. In the absence of evidence to the contrary, the applicant’s administrative separation proceedings are presumed to be correct.

3. He contends he was incorrectly diagnosed with having a personality disorder, he should instead have been found to have PTSD.

a. The evidence he submits affirms a diagnosis of PTSD, but the earliest date of diagnosis is 2010, nearly 3 years after his discharge.

b. He provides no medical evidence he was either diagnosed with or suffered from symptoms of PTSD prior to separation.

4. He asserts the psychiatrist who provided the diagnosis of personality disorder was biased against him in that he was alleged to have written in one of his emails that he was “unconcerned with what the test results may conclude” and that he felt it was “his duty” to proceed with the applicant’s discharge.

a. The applicant does not provide this email as evidence.

b. The email the applicant does provide indicates the psychiatrist sought to confirm the diagnosis of personality disorder. The email additionally suggests the applicant scored high on the Lie-scale of a psychological test (11 questions out of 15), thus apparently presenting himself in an unrealistically favorable light. While the email indicates this result did not help to affirm personality disorder, it also does not prove he was not properly diagnosed.

5. Given the lack of supporting evidence, there does not appear to be a basis to change the narrative reason to either one that is related to PTSD or secretarial plenary authority.

6. Based on the foregoing, the evidence presented does not seem to sufficiently support granting of the requested relief.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings AR20150000953

Enclosure 1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) AR20150008694

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20160002465

9

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2