IN THE CASE OF:	

		BOARD DATE:	4 August 2009

		DOCKET NUMBER:  AR20090002150 


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  The applicant requests, in effect, that his discharge be rescinded and that he be reinstated on active duty in his previous rank and grade and evaluated by a medical evaluation board (MEBD)/physical evaluation board (PEB) for medical retirement.

2.  The applicant states, in effect, that new information based on a Department of Veterans Affairs (VA) determination, dated 8 December 2004, was not available at the time of his discharge indicating he was suffering from post-traumatic stress disorder (PTSD) and deep-seated depression as a direct result of his combat experience during the Persian Gulf War and should be considered.  He is receiving treatment through the VA and private doctors, but when injured during a time of war, regardless of how long it takes to understand the extent of that injury, it seems only fair that consideration be made using this new information.  The depression, anxiety, and lack of available experience within the U.S. Army to treat these conditions were a direct cause for him going undiagnosed.  If this information were available, he believes he would have been provided invaluable medical psychiatric assistance and medically retired from active duty rather than separated for cause.  Insuring our combat veterans are cared for has always been a guiding principle within all branches of the service.  Failure to consider, provide treatment, and medically retire him was unjust and a slippery slope when dealing with America's new combat veterans returning from both Iraq and Afghanistan today.  During both the courts-martial and chapter proceedings this information was alluded to while he described his depression, but was not acted upon by any element of the command.

3.  In support of his application, the applicant provides copies of his Record of Trial and his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

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 Army Board for Correction of Military Records (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.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records show he was commissioned in the Regular Army as a second lieutenant effective 24 May 1989.  He was promoted to major effective 1 April 2000.

3.  On 20 December 2000, a U. S. Army Criminal Investigation Command (USACIDC, also known as CID) Report of Investigation was forwarded to the applicant's organization for action deemed appropriate for the wrongful use of a controlled substance.

4.  On 12 March 2001, the separation authority declined to accept the applicant's resignation for the good of the service in lieu of general court-martial.

5.  On 20 April 2001, the applicant was convicted by a general court-martial of wrongfully using cocaine between 4 June 2000 and 4 December 2000.  The applicant was sentenced to be reprimanded and to forfeit $2,500.00 pay per month for 8 months.  The sentence was adjudged on 20 April 2001.

6.  The applicant submits a copy of the general court-martial record of trial, wherein applicant's counsel was questioned by the military judge if he had thoroughly investigated the possibility of some Rule of Court Martial (RCM) 707 issues and was he satisfied that there were no RCM 707 issues.  The military judge stated that RCM 707 talks about insanity, by way of explaining to the applicant's counsel.  The applicant's counsel replied after conferring with the applicant, "Your honor, we are convinced that there is no 707 issue, that he knew the difference between right and wrong and knew what he was doing was, in fact, wrong."  [This appears to be a typographical error in transcription.  RCM 706 speaks to mental competency; RCM 707 speaks to speedy trial.]

7.  On 10 August 2001, the Commander, U.S. Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, Texas, advised the applicant that he was required to show cause for retention on active duty.  The commander advised the applicant, in effect, that he was initiating elimination action against him based on the fact that his 5 December 2000 urine specimen had tested positive for the presence of cocaine and that in the subsequent CID interview he had admitted to using drugs on a nearly daily basis for the 6 months preceding his urinalysis.  During that period of time he was an instructor in the Officer Education System and repeatedly failed to report for duty.  When he did report for work, the applicant, by his own admission, was more often than not under the influence of narcotics.

8.  The commander further advised the applicant that during his CID interview, when confronted by the investigator about his drug use, he lied by stating that he did not use cocaine.  When confronted by overwhelming evidence to the contrary, the applicant continued to lie and even signed a false official statement before ultimately confessing.  The letter also advised that in accordance with Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 4-11, he could submit his resignation in lieu of elimination or request to be discharged in lieu of elimination, or in place of resignation or discharge, submit a rebuttal or declination statement and request an appearance before a Board of Inquiry.

9.  The applicant's general court-martial was approved on 16 August 2001 and ordered executed.

10.  On 10 September 2001, the U.S. Army Legal Services Agency, Arlington, Virginia, advised the applicant that the appellate examination of his general court-martial was completed.  The record of trial was found to contain sufficient legal and competent evidence to support the approved findings of guilty and the sentence beyond a reasonable doubt.  The letter further advised the applicant that the findings and sentence in his case were now final and conclusive.

11.  On 7 December 2001, a Board of Inquiry convened and considered the evidence in the applicant's case.  The board found that the applicant had committed misconduct under Army Regulation 600-8-24, paragraphs 4-2b(4), 
4-2b(5), and 4-2b(8) and due to those findings recommended he be separated from the service with a general under honorable conditions discharge.

12.  On 13 January 2002, the Staff Judge Advocate General, Headquarters, U.S. Army Air Defense Artillery Center, Fort Bliss, Texas, advised the applicant of the board's finding and recommendation.  The applicant was also advised that he had the option of tendering his resignation in lieu of elimination, submitting a request for discharge in lieu of elimination, or submitting an appellate brief and statement within 7 calendar days of receipt of that notice.

13.  On 13 January 2002, the applicant elected to submit an appellate brief for consideration by a Board of Review.

14.  In a memorandum, dated 13 January 2002, the applicant's senior defense counsel stated that the Board of Inquiry into the case of the applicant made errors to the substantial prejudice of his rights.  Counsel also stated, in effect, that the board members were not unbiased.  The board heard testimony designed to invade the providence of the board and to unduly influence them and the testimony of the applicant's brigade commander had no relevance to the facts at issue.  For those reasons, counsel requested that the Board of Inquiry's recommendations regarding the applicant be rejected.

15.  On 30 January 2002, the Staff Judge Advocate, Headquarters, 32nd Army Air and Missile Defense Command, Fort Bliss, Texas, found the proceedings, findings, and recommendation of the Board of Inquiry in the case of the applicant complied with applicable legal requirements.  The appeal of the board's findings alleged three errors and the alleged errors were unsubstantiated for the following reasons:  (1) the opinion testimony of the applicant's brigade commander's disappointment was, at most, a harmless error, (2) the applicant should not be able to take advantage of the favorable portion of a providence inquiry in one proceeding and then complain of its use when used against him in a separate administrative proceeding.  Army Regulation 15-6 (Investigation Guide for Informal Investigations), paragraph 2-3(c), provides that evidence heard by an administrative board may be used by a Uniform Code of Military Justice court or proceedings with proper procedural safeguards, and (3) in the absence of an explanation by the accused or his defense counsel as to why the board members were not unbiased and would impair their objectivity, that issue was neither properly presented to the board nor was it properly preserved on the record through objection.  He further stated that the Board of Inquiry reflected the applicant had a remarkable military career including combat leadership; was a high performer who suffered through two divorces; had a history of drug abuse for 9 months of an 11-year career and during a period of time of great personal turmoil; was convicted by a general court-martial in which he apparently pled guilty, but which did not dismiss him from service despite the fact that his abuse of alcohol and use of cocaine negatively affected his responsibilities; and ultimately self-corrected and successfully completed a rehabilitation course.

16.  On 2 February 2002, the Acting Commander, Headquarters, U.S. Army Air Defense Artillery Center and Fort Bliss, Fort Bliss, recommended approval of the results of the Board of Inquiry and the separation of the applicant with a general discharge.

17.  In a memorandum for record, dated 2 July 2002, the Chief, Criminal Law Division, clarified that on 19 June 2002 the applicant indicated his election to submit an appellate brief and statement.  The applicant did not submit any matter within the allowed time nor did he submit anything to date.  Based on a telephone conversation on 24 June 2002 with the applicant's assigned military defense counsel, the applicant intended to rely on his defense counsel's earlier submission of rebuttal matters dated 13 January 2002.

18.  On 31 July 2002, the Commander, Headquarters, U.S. Army Training and Doctrine Command, Fort Monroe, Virginia, after reviewing the findings and recommendation of the Board of Inquiry and the applicant's appellate brief, recommended approval of the board's recommendations.  The commander further recommended the elimination of the applicant with the issuance of a general discharge.

19.  On 5 September 2002, the separation authority accepted the Department of the Army Board of Review for Eliminations recommendation for the applicant's elimination from active Army service based on misconduct, moral or professional dereliction, with a general discharge.

20.  The applicant was discharged as a major effective 19 September 2002, under the provisions of Army Regulation 600-8-24, paragraph 4-2b, for unacceptable conduct, with a general discharge.  He was credited with 13 years, 3 months, and 26 days of net active service.

21.  There is no evidence the applicant was referred to an MEBD or PEB for consideration of PSTD or severe depression prior to his separation.

22.  On 29 September 2006, the Army Discharge Review Board determined that the applicant's discharge was both proper and equitable and voted not to change the characterization of his service or the reason for his discharge.

23.  Army Regulation 600-8-24, in effect at the time, specified in paragraph 4-2b that elimination action against an officer could be or would be initiated for misconduct, moral or professional dereliction.

24.  Army Regulation 600-8-24, paragraph 4-3, also specified that an officer referred or recommended for elimination under that chapter who did not meet medical retention standards would be processed through both the provisions of that regulation and through the MEBD/PEB process as described in 
paragraph 1-22 (medical examination/retention).  When it was determined the officer’s mental condition contributed to military inefficiency or unsuitability, the medical evaluation would include a psychiatric study of the officer.  That study would indicate whether the officer was able to distinguish right from wrong and whether the officer currently had the mental capacity to understand board and judicial proceedings and participate in his or her defense.  When applicable, the report would also indicate whether the incapacitating mental illness could have been the cause of the conduct under investigation.  At the time an officer was to appear before the Board of Inquiry, if he or she did not possess sufficient mental capacity to understand the nature of the proceedings or did not behave or cooperate intelligently in his or her defense, the proceedings would be delayed until the officer recovered or the officer would be processed through medical channels, whichever applied.  If a physical or mental condition developed after an officer had been recommended for involuntary separation or after the Board of Inquiry proceedings were completed, the officer's commander would immediately notify the Human Resources Command, Alexandria, Virginia.

25.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) establishes the Army Physical Disability Evaluation System (PDES). 
It 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 or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.  Soldiers are referred to the PDES system when they no longer meet medical retention standards in accordance with Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

26.  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 higher VA rating does not establish error or injustice in the Army rating.  An Army disability rating is intended to compensate an individual for interruption of a military career after it has been determined that the individual suffers from an impairment that disqualifies him or her from further military service.  The VA, which has neither the authority, nor the responsibility for determining physical fitness for the military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability.  Accordingly, it is not unusual for the two agencies of the Government, operating under different policies, to arrive at a different disability rating based on the same impairment.

27.  Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings.  The Army rates only conditions determined to be physically unfitting at the time of discharge, thus compensating the individual for loss of a career; while the VA may rate any service-connected impairment, including those that are detected after discharge, in order to compensate the individual for loss of civilian employability.  

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to having his discharge rescinded with reinstatement on active duty for MEBD/PEB processing for a medical retirement.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and he has not shown error, injustice, or inequity for the relief he now seeks.

2.  The applicant's contentions have been noted; however, the evidence shows that on 20 December 2000, a CID report advised the applicant's command of his wrongful use of a controlled substance.  On 12 March 2001, he requested resignation for the good of the service in lieu of court-martial.  His request was denied.  On 20 April 2001, he was convicted by a general court-martial of one specification of wrongfully using cocaine.  He was sentenced to a reprimand and a forfeiture of $2,500.00 pay per month for 8 months.  On 7 December 2001, a Board of Inquiry found that the applicant had committed misconduct and recommended his separation with a general discharge.  On 5 September 2002, the separation authority accepted the recommendation for the applicant's separation for misconduct and he was separated from active duty on 19 September 2002.

3.  There is an absence of medical documentation to support his statement that he should have undergone MEBD/PEB processing.  His records do not show he was diagnosed with PTSD or a depressive disorder for referral to an MEBD/PEB during his period of service or at the time of his appearance before the Board of Inquiry.  Also, there is no evidence the applicant was diagnosed with PSTD or severe depression after his separation from active duty.

4.  The Record of Trial submitted by the applicant shows the military judge in his trial specifically asked the applicant and his counsel if they had thoroughly investigated the possibility of some RCM 707 [706] issues.  They were also given an explanation of what RCM 707 [706] issues are by the military judge prior to the response.  The applicant's counsel then stated that there were no RCM 707 [706] issues and the applicant knew the difference between right and wrong and knew what he was doing.
5.  From the evidence in this case, it is clear the applicant knew and understood the reasons for his discharge and the type of discharge he would be receiving.  The evidence also shows his administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons for that separation were appropriate considering all of the facts of the case.

6.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ________  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.



      ____________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)                                         AR20090002150



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ABCMR Record of Proceedings (cont)                                         AR20090002150



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