IN THE CASE OF:	  

		BOARD DATE:	  	  7 April 2009

		DOCKET NUMBER:  AR20080004497 


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:

The applicant defers to counsel.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the applicant be medically retired effective the date of his discharge from the service, that his DD Form 214 (Certificate of Release or Discharge from Active Duty) be expunged from his record and replaced with a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) showing the applicant was medically retired after serving honorably, and that the applicant be placed on invitational travel orders (ITO) to appear before a Medical Evaluation Board (MEBD).

2.  Counsel states, in effect, that at the time of the applicant's discharge he did not meet the medical retention requirements to remain in the U.S. Army in accordance with Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-3 which requires those Soldiers to appear before an MEBD.  Counsel states, in effect, that the applicant suffered from PTSD (Post Traumatic Stress Disorder).  Counsel also states in effect, that the applicant was separated because of an action by the Secretary of the Army's representative separating him in conformance with the recommendation of a Board of Inquiry (BOI) which found that he engaged in unacceptable conduct. 



3.  Counsel provides the following documents on behalf of the applicant in support of this application:

		a.  his DD Form 214;

		b.  multiple pages of Standard Forms (SF) 600 (Chronological Record of Medical Care) from August 2004 to August 2005;

		c.  a DD Form 2697 (Report of Medical Assessment), dated 6 July 2006;

		d.  two DD Forms 2808 (Report of Medical Examination), dated 2 March 2002 and 6 July 2006;

		e.  a draft copy of the findings and recommendation of the BOI; and

		f.  a Department of Veterans Affairs (VA), Winston-Salem Regional Office, Rating Decision, dated 26 January 2006.

CONSIDERATION OF EVIDENCE:

1.  After having had prior enlisted service, the applicant was appointed as a warrant officer one, aviation maintenance technician, in the U.S. Army Reserve (USAR) on 16 December 1999 and entered active duty that date.  On                16 December 2001, he was promoted to chief warrant officer two (CW2).  He arrived in Afghanistan on or about 29 November 2002.

2.  On 8 July 2003, the applicant accepted nonjudicial punishment for disobeying a lawful command from a superior commissioned officer by bringing his personal computer to work on or about 7 April 2003 and 28 April 2003, while deployed to Bagram Air Base, Afghanistan; for failing to obey a lawful general order, to wit:  CJTF-180 NIPRNET use policy, by wrongfully connecting his personal computer to the NIPRNET on or about 28 April 2003; and with intent to deceive, making to a superior officer an official statement, to wit: "NO," in response to a question, which was false and was known to him to be false on 6 May 2003.  

3.  Multiple SFs 600 show the applicant was seen from 3 May 2003 to 2 August 2006 at several Army community hospitals for stress, depression, a nagging cough, chronic knee pain, lower back pain, and headaches.  The SFs 600 show that the applicant’s medical complaints focused on his back and knee pain.

4.  Counsel submitted a copy of draft comments from a BOI, dated 31 January 2005, which investigated the findings of computer payment fraud, acceptance of a general officer Article 15, willful disobedience to a commander, violation of a no contact order, making a false statement, substandard performance, and the revocation of his security clearance.  The BOI recommended that the applicant be eliminated from the U.S. Army and that his period of service be characterized as under other than honorable conditions because of mismanagement of personal affairs to the discredit of the service, mismanagement of personal affairs detrimentally affecting performance of duty, acts of personal misconduct, and an intentional neglect or failure to perform assigned duties or comply with applicable directives.

5.  In a 7 February 2005 memorandum to the Commander, U.S. Army Human Resources Command, Alexandria, VA, subject:  Character of Service, in response to a BOI which convened on 25 January 2005 to determine if he should be eliminated from the U.S. Army, the applicant stated that he recognized that his service as a warrant officer did not rise to the level expected of him.  He also stated that after getting into trouble for his personal computer use in Afghanistan in 2003, he found himself in a downward spiral that he never recovered from.  He further stated that he allowed his personal affairs to interfere with his duty performance, which caused his leaders and Soldiers to lose trust and confidence in him.  He concluded by stating that he saw he was not meant to be an officer and recognized there is no place for him in the Officer Corps.

6.  The applicant's official records contain a copy of the Army Board of Review for Eliminations, Transcript of Hearing, dated 14 June 2006, which states that elimination action was initiated by his commander because of misconduct and moral or professional dereliction.  The applicant disobeyed a lawful order from a superior commissioned officer.  He was given a direct order to not bring his personal computer to work, but he ignored that order and brought it to work in Afghanistan.  The BOI convened and the board recommended his elimination from the U.S. Army with an under other than honorable conditions discharge.  This recommendation was forwarded from the General Officer Show Cause Authority (GOSCA), through the Commanding General, U.S. Forces Command (FORSCOM), to the Commander, U. S. Army Human Resources Command.  Both the GOSCA and the Commander, FORSCOM recommended approval of the BOI results.

7.  Page 4 (Finding) of the Army Board of Review of Eliminations, Transcript of Hearing stated that the Government had established by a preponderance of the evidence that the applicant violated a command policy on computer use, recovered a computer he had been ordered to surrender and used it in contravention to his commander's order, and routinely left his place of duty after only a few hours of work for almost a full year.  The Army Board of Review of Eliminations recommended that the applicant be eliminated from the U.S. Army and issued a general, under honorable conditions discharge.  
8.  A DD Form 2697, dated 5 July 2006, shows the applicant listed eczema, back pain, knee pain, headaches, jaw pain, a cough, and depression as health matters that had worsened since his last physical; and backache, depression, and joint pain as illnesses or injuries that caused him to miss duty for more than 3 days.  The attending physician addressed the applicant's complaints and referred him to the VA for further evaluation.

9.  A DD Form 2808, dated 6 July 2006, shows the applicant underwent a separation medical examination.  The summary of the applicant's defects and diagnoses listed eczema, stress, depression-resolved, elevated diastolic monitor, patella tendonitis, jaw pain, and a cough.  The applicant's medical records also show that he had a permanent (P-2) profile for bilateral chronic patellar tendonitis (knee pain).  He was found to be qualified for service.

10.  On 16 July 2006, the applicant was discharged, as a CW2, under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), chapter 4-2(b), unacceptable conduct, with a general, under honorable conditions discharge after completing a total of 17 years, 5 months, and 10 days of creditable active service.

11.  An advisory opinion obtained on 1 April 2008, from the Agency Legal Advisor, U.S. Army Physical Disabilities Agency (USAPDA), Washington, DC, stated that the applicant was separated from the military because of misconduct as an officer.  If he had an MEBD determine that he had an impairment that did 
not meet medical retention standards in accordance with Army Regulation
40-501, both separation actions would be processed.  If the PEB found the applicant unfit, the Department of the Army would decide the proper disposition of the applicant in relation to the two separation actions in accordance with Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation).  The advisory official stated that in the present case there is insufficient evidence to establish that in 2006 the applicant did not meet medical retention standards.  No MEBD had been completed making that finding or directing a PEB.  

12.  The advisory opinion stated that a review of the material supplied by the applicant does not provide sufficient evidence of a medical impairment that does not meet medical retention standards or that would be considered as a compensable disability (comments supplied relating to stress of unit investigation more akin to an adjustment disorder which is not compensable.  The official concluded that the USAPDA cannot provide any administrative relief at this time and cannot provide an advisory opinion unless the Office of the Surgeon General reconstructs the applicant's medical history from 2005 through 2006 and determines if he met medical retention standards.  Then an MEBD, reflective of the applicant's condition before separation in 2006, must be developed.  The MEBD would then be provided to the USAPDA for an opinion as to whether the applicant would have been found fit or unfit for duty in 2006.  Even if the USAPDA found the applicant unfit, Department of the Army would still have to decide which of the two actions would be most appropriate.  If the ABCMR, in its decision making authority for the Secretary of the Army, would decide that in 2006 the Department of the Army would likely have affirmed the misconduct separation over any unfit finding by the USAPDA, then it does not appear to be necessary to have OTSG or the USAPDA reconstruct what might have occurred in regard to any medical condition.

13.  A copy of the advisory opinion was forwarded to the applicant and counsel for information and to provide the opportunity for submitting a rebuttal.  On
12 June 2008, the applicant's counsel submitted a rebuttal to the advisory opinion which included a copy of a research study that the applicant participated in from the Durham VA Medical Center entitled "Evaluation of Psychological Symptoms for the Study of Post-Deployment Mental Health."  He further stated that based on the evidence submitted, a review by OTSG is more than warranted.

14.  Counsel submitted a copy of the applicant's VA Rating Decision from the Winston-Salem, NC VAMC submitted by the applicant dated 26 January 2007, which shows that he was rated for a service-connected disability at 30 percent for 
depressive disorder; service-connected at 10 percent for tinnitus; service-
connected at 10 percent for degenerative disc disease of the lumbar spine; service connected at 10 percent for patellofemoral syndrome, right knee; service connected at 10 percent for patellofemoral syndrome, left knee; service connected at 10 percent for status post right ankle sprain, right ankle; service connected at 10 percent for status post left ankle sprain, left ankle; service connected at 10 percent for shin splints, right leg; and service connected at
10 percent for shin splints, left leg.  

15.  Army Regulation 600-8-24 sets out the basic authority for officer transfers and discharges.  Chapter 4 outlines the policy and procedure for eliminating officers for substandard performance of duty, misconduct, moral or professional dereliction, and in the interest of national security.

16.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual.  It is used to assist the unit 

commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES):  P-physical capacity or stamina, U-upper extremities, L-lower extremities, H-hearing and ears, E-eyes, and S-psychiatric.  A physical profile designator of “2” under any or all factors indicates that an individual possesses some medical condition or physical defect that may require some activity limitations.

17.  Army Regulation 635-40 provides that the medical treatment facility commander with the primary care responsibility will evaluate those referred to him and will, if it appears as though the member is not medically qualified to 
perform duty or fails to meet retention criteria, refer the member to an MEBD.  Those members who do not meet medical retention standards will be referred to a PEB for a determination of whether they are able to perform the duties of their grade and military specialty with the medically disqualifying condition.

18.  Title 38, U.S. Code, permits the VA to award compensation for a medical condition which was incurred in or aggravated by active military service.  The VA, however, is not required by law to determine medical unfitness for further military service.  The VA, in accordance with its own policies and regulations, awards compensation solely on the basis that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Consequently, due to the two concepts involved, an 
individual's medical condition, although not considered medically unfitting for military service at the time of processing for separation, discharge or retirement, may be sufficient to qualify the individual for VA benefits based on an evaluation by that agency.

19.  Army Regulation 15-185 (Army Board for Correction of Military Records [ABCMR]) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for correction of a military record.  Paragraph 2-9 (Burden of Proof) states that the ABCMR begins its consideration of each case with presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  Counsel's contentions that the narrative reason for the applicant's separation should be changed to show that he was medically retired, that his DD Form 214 

be expunged from his record, and that he be allowed to appear before an MEBD were carefully considered and found to be without merit.  

2.  The evidence of record shows that the Army Board of Review for Eliminations recommended the applicant's discharge from the U.S. Army with a general, under honorable conditions discharge, based on misconduct and moral or professional dereliction.  There is no evidence in the applicant's record nor did the applicant/counsel submit any evidence that would warrant the relief requested.

3.  There is no evidence the applicant was not medically qualified to perform his assigned duties or that he failed to meet medical retention criteria.  There is no evidence to show that his misconduct was the result of any medical conditions he had.  His separation physical examination listed a number of medical conditions but also showed that the highest physical profile he had was a "2."  That is he had some medical condition or physical defect that may have required some activity limitations but would not have made him medically unfit for retention.

4.  The fact that the DVA awarded the applicant a combined disability rating of 
100 percent is a prerogative exercised within the policies of that agency.  The VA does not determine medical unfitness for service, but only that a medical condition exists and that said medical condition reduces or impairs the social or industrial adaptability of the individual concerned.  Therefore, a rating awarded by the VA after the applicant was discharged does not, in and of itself, establish physical unfitness for Department of the Army purposes.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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.



      ___________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.
ABCMR Record of Proceedings (cont)                                         AR20080004497



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080004497



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1