BOARD DATE:	  30 July 2009

		DOCKET NUMBER:  AR20090004337 


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 that his general under honorable conditions discharge be changed to a medical discharge.  

2.  The applicant states that he was hospitalized in two different hospitals just prior to his discharge from the Army.  Both hospitals diagnosed him with Post Traumatic Stress Disorder (PTSD) and Bipolar Disorder.  He states he was granted service-connection for Bipolar Disorder.  

3.  The applicant provides a copy of his Out-Patient Psychiatric Evaluation in support of his application.  

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 enlisted in the Regular Army on 23 January 2003.  At the completion of required training, he was awarded military occupational specialty 42A (Human Resources Specialist).  His highest grade held was private first class, E-3.  He served in Iraq from 25 September 2003 through 19 March 2004.

3.  On various dates between September 2003 and September 2004, the applicant received numerous adverse counseling statements.  

4.  On various dates between May 2004 and November 2004, the applicant received four nonjudicial punishments under Article 15, Uniform Code of Military Justice for the following offenses: failure to properly perform the duties of phone watch as assigned to him on 19 May 2004 (two specifications); failure to be at unit physical training (PT); wrongfully use marijuana; and wrongfully use a government cellular phone to make personal phone calls totaling $1,101.65.

5.  On an unknown date, the applicant’s unit commander notified him of pending separation action under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct - commission of a serious offense and advised him of his rights.  The applicant acknowledged notification of separation action, consulted with legal counsel, and did not submit statements in his own behalf.  

6.  On an unknown date, the separation authority waived a rehabilitative transfer and approved the applicant's discharge under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct - commission of a serious offense with issuance of a general under honorable conditions discharge.

7.  On an unknown date, the applicant underwent a separation physical.  Page 3 of his DD Form 2808 (Report of Medical Examination) shows he was qualified for separation and was given a physical profile of 111111.  In Block 77 (Summary of Defects and Diagnoses) on his DD Form 2808, the physician noted that the applicant stated he was diagnosed with PTSD and Bipolar Disorder at Veterans Affairs (VA) in Louisville, KY.  

8.  The applicant was discharged on 8 February 2005 under the provisions of Army Regulation 635-200, paragraph 14-12c(2) by reason of misconduct with service characterized as general under honorable conditions.  

9.  The applicant provided a copy of an Out-Patient Psychiatric Evaluation, dated 30 January 2009, from the Tampa VA Medical Center.  This document shows he was diagnosed with Bipolar Disorder and PTSD.



10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it was clearly established that rehabilitation is impracticable or is unlikely to succeed.  

11.  Army Regulation 635-200 required that the General Court-Martial Convening Authority (GCMA) will direct that a Soldier be processed through medical channels if the disability is the cause or substantial contributing cause of the conduct that led to the recommendation for administrative elimination.  

12.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and 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.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  Numerical 
designators "2" and "3" indicate that an individual has a medical condition or physical defect which requires certain restrictions in assignment within which the individual is physically capable of performing military duty.  The individual should receive assignments commensurate with his or her functional capacity.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was hospitalized in two different hospitals just prior to his discharge and both hospitals diagnosed him with PTSD and Bipolar Disorder.  However, there is no evidence available which substantiates his claims.  Although the applicant stated during his separation physical that he had been diagnosed with PTSD and Bipolar Disorder at the VA, there is no evidence available which verifies he was diagnosed with PTSD and Bipolar Disorder prior to his discharge.  

2.  The evidence of record shows that prior to the applicant's separation in February 2005, competent medical authority determined that he was then medically qualified for separation with a physical profile of 111111.  There is no evidence which indicates his military career was ended due to medical unfitness.  
3.  The Out-Patient Psychiatric Evaluation indicating the applicant's diagnoses of Bipolar Disorder and PTSD was carefully reviewed.  However, this psychiatric evaluation was prepared subsequent to the applicant's discharge from active duty in February 2005.  There is no evidence that the applicant’s mental status required processing through medical channels or was the cause of his misconduct.

4.  The applicant has not presented sufficient evidence to show that his general under honorable conditions discharge was in error or unjust that his discharge should be changed to a medical discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ___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)                                         AR20090004337





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ABCMR Record of Proceedings (cont)                                         AR20090004337



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