RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        January 9, 2007
      DOCKET NUMBER:  AR20060008255


      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.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Ms. Beverly A. Young              |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James Anderholm               |     |Chairperson          |
|     |Mr. Jerome Pionk                  |     |Member               |
|     |Mr. Scott Faught                  |     |Member               |

      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, in effect, that his honorable discharge be
changed to a medical discharge.

2.  The applicant states that his type of separation, separation authority,
narrative reason, and separation code are in error.  He states the
discharge was improper according to Army Regulation 600-8-24 (Officer
Transfers and Discharges) and Army Regulation 635-40 (Physical Evaluation
for Retention, Retirement, or Separation) for a medical administrative
discharge and has resulted in inaccurate information in his personal file.
He states that Army Regulation 600-8-24, paragraph 2-31 indicates that
release from active duty may not be used if special qualification was lost
due to a medical reason beyond the warrant officer’s control.  He states
that retention was not found favorable by the Warrant Officer Division and
request for reclassification of military occupational specialty (MOS) was
not favorable.

3.  The applicant provides a copy of his DD Form 214 (Certificate of
Release or Discharge from Active Duty); a memorandum, dated 17 July 2002,
Subject: Recommendation for Medical Termination from Aviation Service; a
memorandum with accompanying orders, dated 20 August 2002, Subject: Medical
Disqualification - CW2 __________; a memorandum, dated 28 October 2002,
Subject: Withdrawal of Military Occupational Specialty (MOS); a memorandum,
dated 12 December 2002, Subject: Request for Reclassification; a
memorandum, dated 6 February 2003, Subject: Termination of Physical
Evaluation Board Proceedings Pertaining to CW2 _________; a memorandum,
dated 17 March 2003, Subject: Medical Evaluation Board Proceedings: CW2
__________; a congressional letter, dated 31 March 2003; a memorandum,
dated 10 April 2003, Subject: Request for Voluntary Release from Active
Duty for CW2 _________; an email from the commander of the 227th Aviation
Regiment; and Medical Evaluation Board Proceedings with attachments.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 9 February 1998 and was
discharged on 4 June 1998 for the purpose of accepting appointment as a
warrant officer.

2.  The applicant was appointed as a Reserve warrant officer on 5 June 1998
with a concurrent call to active duty.  He completed the required training
and was awarded primary specialty 153D (UH-60 Pilot).

3.  He was promoted to Chief Warrant Officer Two (CW2) on 5 June 2000.
4.  The applicant was given an Officer Evaluation Report (OER) for the
period ending 7 November 2000 which shows he served as a UH-60 Blackhawk
Pilot in the 1st Cavalry Division at Fort Hood, Texas.  Under Part V
(Performance and Potential Evaluation), the rater placed an “X” in the
block “Outstanding Performance, Must Promote.”  The rater commented that
the applicant demonstrated unlimited potential and had the ability to
handle increased responsibility.  Under Part VII (Senior Rater), the senior
rater placed an “X” in the block “BEST QUALIFIED” and commented that the
applicant was a dedicated member of his team who continued to develop those
critical skill sets they required of their officers.  He also commented
that the applicant had sound potential for assignment to positions of
increased responsibility.

5.  The applicant was given an OER for the period ending 8 April 2001 which
shows he served as a UH-60 Pilot within the 1st Cavalry Division.  Under
Part V, the rater placed an “X” in the block “Outstanding Performance, Must
Promote” with the comments “CW2 __________ is an officer who is always
willing to help and work hard to complete a task.  He is certainly worthy
of more responsibility.  Promote to CW3 and send to advanced schooling.”
The senior rater placed an “X” in the block “BEST QUALIFIED” with the
comments “Select for promotion when first eligible and track as either as
Safety Officer or Tactical Operations Officer--he has unlimited potential
to serve in these areas.”

6.  The applicant was given an OER for the period ending 8 April 2002 which
shows he served as a UH-60 Pilot-in-Command responsible for combat support
aviation operations in support of the 1st Cavalry Division.  Under Part V,
the rater placed an “X” in the block “Outstanding Performance, Must
Promote” with the comments, “Promote this officer and continue to challenge
him with the most difficult missions.  Send him to the Warrant Officer
Advanced Course.”  The senior rater placed an “X” in the block “BEST
QUALIFIED” with the comments CW2 ________ must be promoted to CW3 and
challenged with the most demanding duties.  Unlimited potential.  Program
for the Warrant Officer Advanced Course now.”

7.  In a 17 July 2002 memorandum, the Director, U.S. Army Aeromedical
Activity, Fort Rucker, Alabama recommended medical termination of the
applicant’s aviation service.  The memorandum indicated the applicant did
not meet the medical fitness standards for Class 2 flying duties under the
provisions of Army Regulation 40-501, paragraphs 4-23e and 2-32d due to
history of attention deficit and hyperactivity disorder with chronic use of
the medication, Adderal, for treatment.  The memorandum indicated the
applicant’s date of medical incapacitation was 25 January 2002.

8.  Department of the Army, U.S. Total Army Personnel Command, Alexandria,
Virginia Orders 232-2, dated 20 August 2002, terminated the applicant’s
aviation service and entitlement to Aviation Career Incentive Pay effective
17 July 2002.

9.  On 9 September 2002, the applicant was placed on permanent profile for
medical termination from aviation service secondary to medication use and
medical condition.  He was given a physical profile rating of 111113.

10.  In a 28 October 2002 memorandum from the Warrant Officer Division, the
applicant was notified that his primary MOS was withdrawn.  He was informed
that Headquarters, Department of the Army (HQDA) would determine if
reclassification to another MOS was considered feasible.

11.  In a 12 December 2002 memorandum from the Warrant Officer Division,
the applicant was notified that reclassification action was not favorably
considered.  The Warrant Officer Division considered the applicant for
other MOSs and was unable to match his experience to a new warrant officer
MOS.  He was advised that his case would be submitted to the Retirements
and Separations Branch of the Adjutant General Directorate for
consideration of involuntary release from active duty in accordance with
Army Regulation 600-8-24, paragraph 2-31d(10).

12.  A Medical Evaluation Board (MEB) evaluated the applicant on 19
December 2002 and he was diagnosed as having attention deficit
hyperactivity disorder (ADHD).  He was referred to a Physical Evaluation
Board (PEB).  The MEB proceedings indicate the applicant did not desire to
continue on active duty under Army Regulation 635-40.  The applicant agreed
with the board’s findings and recommendation.

13.  By a 6 February 2003 memorandum, the applicant’s PEB proceedings were
terminated.  The memorandum indicated the applicant did not have an
unfitting profile and ADHD did not constitute a physical disability in
accordance with Department of Defense Instruction 1332.38, paragraph
E5.1.2.

14.  The applicant’s voluntary request for release from active duty is not
available.

15.  On 10 April 2003, the commanding officer of Headquarters, 4th Brigade,
1st Cavalry Division, Fort Hood, Texas recommended the applicant’s request
for voluntary release from active duty be approved with an honorable
discharge.  The recommendation indicates the applicant wished to leave the
service in order to pursue opportunities outside of the military.

16.  The applicant was honorably released from active duty on 18 June 2003
under the provisions of Army Regulation 600-8-24, paragraph 2-5 for
miscellaneous and general reasons.  He was transferred to the U.S. Army
Control Group (Reinforcement) on the following day.  His DD Form 214 shows
he was issued a separation code of “MND” (Miscellaneous and General
Reasons).

17.  Army Regulation 600-8-24, paragraph 2-5 governs the rules for
processing voluntary release from active duty due to personal reasons.  The
regulation states that an officer may request release from active duty if
eligible under specific criteria whenever such actions is considered
appropriate.

18.  Army Regulation 600-8-24, dated 21 July 1995, paragraph 2-31d(10),
states in pertinent part that conduct or actions by a warrant officer
resulting in the loss of special qualifications (to include loss of flying
status), which directly or indirectly precludes a warrant officer from
performing in his or her MOS and is necessary for MOS performance may
result in involuntary release from active duty (REFRAD).  The REFRAD based
on these reasons may not be utilized if reclassification action is feasible
and in the best interest of the service or if loss of special qualification
was due to medical reasons beyond the control of the warrant officer.

19.  Army Regulation 635-40, paragraph 3-2b provides that when a member is
being separated by reason other than physical disability, his continued
performance of duty creates a presumption of fitness which can be overcome
only by clear and convincing evidence that he was unable to perform his
duties or that acute grave illness or injury or other deterioration of
physical condition, occurring immediately prior to or coincident with
separation, rendered the member unfit.

20.  Army Regulation 40-501, dated 30 August 1995, paragraph 4-23e states
the causes of medical unfitness for flying duty include history of
pervasive or specific developmental disorders usually first seen in
childhood.

21.  Department of Defense Instruction (DODI) 1332.38, dated 14 November
1996, subparagraph E5.1.2.1 states that certain conditions and defects of a
developmental nature designated by the Secretary of Defense do not
constitute a physical disability and are not ratable in the absence of an
underlying ratable causative disorder.  If there is a causative disorder it
will be rated in accordance with other provisions of this Instruction.
ADHD is listed as a condition that does not constitute a physical
disability.
DISCUSSION AND CONCLUSIONS:

1.  It is acknowledged the applicant was initially considered for
separation under Army Regulation 600-8-24, paragraph 2-31d(10).  However,
it appears a decision was made that this was not the proper section under
which he should be considered for separation.  The applicant was then
evaluated by a MEB on 19 December 2002.  He was diagnosed as having ADHD
and was referred to a PEB.

2.  The PEB proceedings were terminated in February 2003 because the
applicant’s diagnosis of ADHD did not constitute a physical disability in
accordance with DODI 1332.38.  Although the U.S. Army Aeromedical Activity
at Fort Rucker, Alabama had recommended his separation under Army
Regulation 40-501, paragraph 4-23e, it appears they failed to realize that
provision of the regulation was superseded by DODI 1332.38 in November
1996.

3.  The commander’s recommendation indicates the applicant voluntarily
requested to be released from active duty because he wished to leave the
service in order to pursue opportunities outside of the military.  As a
result, the applicant was released from active duty on 18 June 2003 under
the provisions of Army Regulation 600-8-24, paragraph 2-5 based on
miscellaneous and general reasons.

4.  The evidence of record shows that the applicant’s condition did not
render him medically unfit and he was not involuntarily separated under
Army Regulation 600-8-24, paragraph 2-31d(10).  He was voluntary separated
under the provisions of Army Regulation 600-8-24, paragraph 2-5.
Therefore, there is no basis for changing his honorable discharge to a
medical discharge.

5.  The applicant has failed to submit evidence to show the record is in
error or unjust.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

JA________  JP______  SF______  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




                                  James Anderholm_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060008255                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20070109                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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