RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 March 2007
	DOCKET NUMBER:  AR20060007795 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


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	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his administrative discharge be revoked, that he be referred to a Medical Evaluation Board (MEB), and that he be medically retired by reason of physical disability with a 30% disability rating for major depressive disorder and asthma with entitlement to back pay and allowances.  

2.  The applicant states, in effect, that his administrative discharge was unjust because he suffered from medical conditions that should have been evaluated through the physical disability system instead of being deemed to have a condition that was not a disability. 

3.  The applicant provides copies of his administrative separation proceedings, medical evaluations, a letter from his attorney to the Office of the Staff Judge Advocate (SJA), a copy of his report of separation (DD Form 214) and numerous documents from his records.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant’s administrative discharge be revoked, that he be referred to a MEB and that he be retired by reason of physical disability with a 30% disability rating for major depressive disorder and asthma, effective the date of his original discharge, with entitlement to all back pay and allowances.

2.  Counsel states, in effect, that the applicant was admitted to the Acute Psychiatry Unit at Fort Riley on 7 December 2005 and was hospitalized there until 10 January 2006, during which he related instances of suicidal ideation.  He goes on to state that the applicant was prescribed medication for depression and asthma and the physician recommended that he be medically discharged.  However, the applicant was unjustly discharged for a condition not considered a disability, without being processed through the physical disability process.  

3.  Counsel provides no additional documents other than those provided by the applicant. 

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army in Atlanta, Georgia on 24 August 1988 for a period of 4 years and training as a cavalry scout.  He completed his training and was advanced to the pay grade of E-4 on 1 October 1990.  He served in Southwest Asia from 24 December 1990 until 14 May 1991, in support of Operation Desert Shield/Storm.  He was honorably released from active duty on 23 August 1992, due to expiration of his term of service (ETS).  He was transferred to the United States Army Reserve (USAR) Control Group (Reinforcement).   

2.  He enlisted in the Missouri Army National Guard (MOARNG) on 24 November 1992 and served in the MOARNG until he was honorably discharged on 21 September 1998.   

3.  On 22 September 1998, he enlisted in the Regular Army in St. Louis, Missouri for a period of 3 years and assignment to Fort Riley.  He was promoted to the pay grade of E-5 on 1 June 1999 and served in Bosnia from 15 June 1999 to 20 October 1999.   

4.  He remained at Fort Riley until November 2000 when he was transferred to the Army Recruiting Battalion in St. Louis with duty at the Florissant, Missouri recruiting station.  He was promoted to the pay grade of E-6 on 1 October 2002.  On 22 October 2003, he reenlisted for a period of 6 years, a selective reenlistment bonus and assignment to Korea.
   
5.  Consequently, he was transferred to Korea for duty as a section leader in a forward deployed armor task force.  He completed his tour in Korea and was transferred back to his old unit at Fort Riley in January 2005.

6.  On 7 December 2005, the applicant was admitted to the acute psychiatry ward and was diagnosed with Axis I – psychotic disorder, NOS, major depressive disorder, single episode, severe, attention deficit disorder, combined type, AXIS III - Hypercholesterolemia, Asthma, AXIS IV – Psychosocial and environmental stressors: service in Bosnia and Desert Storm; probable loss of Army Career, AXIS V – GAF on admission.  He was discharged on 10 January 2006.  At the time of his discharge, the physician recommended that he be given a medical discharge and that he not be around firearms.  The Chief, Mental Health Services recommended that the applicant be expeditiously separated in accordance with Army Regulation 635-200, paragraph 5-17.

7.  On 27 January 2006, the applicant’s commander initiated a suspension of favorable personnel actions (FLAG) in which he indicated that elimination action was being initiated.

8.  On 2 March 2006, the applicant was counseled by his first sergeant and was informed that he was being recommended for separation from the Army under the provisions of Army Regulation 635-200, paragraph 5-17, because he could not perform his duties as a Soldier with his current medical condition.

9.  On 9 March 2006, the applicant’s commander notified him that he was being recommended for separation from the service under the provisions of Army Regulation 635-200, paragraph 5-17, because of other designated physical or mental condition.

10.  After consulting with counsel, the applicant waived all of his rights; however, on 28 March 2006, the applicant’s civilian counsel dispatched a letter to the Office of the SJA indicating that the applicant had, without informed consent, waived his counsel and hearing rights.  The applicant’s counsel requested that separation proceedings be halted and that the applicant be processed by the Disability Evaluation System.       

11.  On 16 March 2006, the brigade commander approved the recommendation for discharge and directed that the applicant be honorably discharged under the provisions of Army Regulation 635-200, paragraph 5-17, because of other designated physical or mental condition.

12.  On 7 May 2006, the applicant was honorably discharged under the provisions of Army Regulation 635-200, paragraph 5-17 for a condition, not a disability.  He had served 11 years, 7 months and 16 days of total active service and was paid $20,697.80 in one-half involuntary separation pay benefits.

13.  In the processing of this case a staff advisory opinion was obtained from the Office of the Surgeon General (OTSG) which opines, in effect, that the applicant should have been referred to a medical evaluation board (MEB) instead of being separated and recommended that he be returned to active duty to accomplish a medical evaluation board and possible referral to a physical evaluation board.  The advisory opinion was provided to the applicant and he concurred with the opinion as written. 

14.  Army Regulation 635-200 governs the separation of enlisted personnel.  Paragraph 5-17 states a commander may approve separations under this paragraph on the basis of other physical or mental conditions not amounting to disability (under the provisions of Army Regulation 635-40) that potentially interfere with assignment to or performance of duty.  

15.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  It states commanders of medical treatment facilities (MTFs) who are treating Soldiers may initiate action to evaluate the Soldier’s physical ability to perform the duties of his or her office, grade, rank, or rating.  The commander will advise the Soldier’s commanding officer of the results of the evaluation and the proposed disposition.  If it appears the Soldier is not medically qualified to perform duty, the MTF commander will refer the Soldier to an MEB. 

16.  Army Regulation 635-40 states that MEBs are convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the Soldier’s status.  A decision is made as to the Soldier’s medical qualification for retention based on the criteria in Army Regulation 40-501, chapter 3.  

17.  Army Regulation 40-501 (Standards of Medical Fitness), states that asthma and disorders with psychotic features are causes for referral to an MEB.
   
DISCUSSION AND CONCLUSIONS:

1.  At the time the applicant was discharged from the Acute Psychiatric Ward at what appears to be a Department of Veterans Affairs facility in Kansas on 10 January 2006, the attending physician opined that the applicant should be medically discharged from the Army and that he not be around firearms.  The applicant was directed to do a follow-up at Fort Riley with the mental health clinic and a physician was contacted with treatment recommendations and treatment course.   

2.  The Chief, Community Mental Health Services (CMHS) recommended that the applicant have a follow-up appointment with the Department of Behavioral Health.  He also opined that the applicant was potentially dangerous, that he not use any weapons, that the command secure all off-post weapons, and that an order against the use of alcohol be issued.  He also cleared the applicant psychiatrically for any administrative action deemed appropriate by the command and opined that he met the psychiatric criteria for expeditious administrative separation under the provisions of Army Regulation 635-200, paragraph 5-17.   

3.  Given the two different recommendations cited in the preceding paragraphs, it is apparent that the chain of command did not have access to the clinical records from the Acute Psychiatric Ward and had no other options but to accept the recommendation from the Chief, CMHS to administratively discharge the applicant under the provisions of Army Regulation 635-200, paragraph 5-17.      

4.  However, given the recommendations by the physician at the time he was discharged from the psychiatric ward and the advisory opinion from the OTSG, it appears that action should have been initiated by the Medical Treatment Facility (MTF) to evaluate the applicant’s medical condition before administrative separation proceedings were finalized.

5.  While the Board will not attempt to determine if any of the applicant’s conditions warrant a disability rating, which in effect denies the applicant’s request to be retired by reason of a disability rating, the Board will attempt to correct the injustice done to the applicant by affording him an opportunity to be properly evaluated by appropriate medical personnel and systems designed to determine the degree of disability a Soldier may have prior to separation.

6.  Accordingly, the Board directs that the Department of the Army Office of the Surgeon General take appropriate action to issue the applicant invitational travel orders for the purpose of undergoing the appropriate medical processing and evaluations at an appropriate medical facility that has the capability to properly evaluate the applicant’s medical condition.

7.  Once a determination has been made as to the appropriate disposition of the applicant’s medical condition under the Physical Disability Evaluation System (PDES), the applicant will be separated in accordance with the applicable laws and regulations, with entitlement to all back pay and allowances due him.

8.  In the event that a determination is made that the applicant should have been discharged under the PDES, these proceedings will serve as the authority to void his original discharge and to issue the appropriate separation retroactive to his original discharge date.  

BOARD VOTE:

________  ________  ________  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 the OTSG contacting the applicant to arrange, via appropriate medical facilities, a physical evaluation through the use of invitational travel orders to the applicant.  In the event that the applicant requires a MEB and PEB, the applicant will be afforded all of the benefits normally afforded individuals on active duty who are undergoing a MEB and/or PEB.  Should a determination be made that the applicant should have been separated under the PDES, these proceedings will serve as the authority to void his administrative discharge and to issue him the appropriate separation retroactive to his original separation date, with entitlement to all back pay and allowances, 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 to granting him a 30% disability rating for Retired Pay purposes without undergoing evaluation under the PDES.  




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          CHAIRPERSON




INDEX

CASE ID
AR20060007795
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070320
TYPE OF DISCHARGE
(HD)
DATE OF DISCHARGE
2006/05/07
DISCHARGE AUTHORITY
AR635-200, para 5-17 . . . . .  
DISCHARGE REASON
Cond not a disability
BOARD DECISION
(partial GRANT)
REVIEW AUTHORITY

ISSUES         1. 108.0000
177/pd
2. 110.0300
192/reinstate
3.

4.

5.

6.