IN THE CASE OF:	  

		BOARD DATE:	  9 June 2009

		DOCKET NUMBER:  AR20090007032 


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, restoration of his rank to staff sergeant (SSG)/pay grade E-6 and correction of his records to show he was medically retired due to a traumatic brain injury (TBI) and post traumatic stress disorder (PTSD).

2.  The applicant states, in effect, he was diagnosed with chronic PTSD in July 2005 and TBI in August 2008.  He also states that his problems were the result of TBI and chronic PTSD and, instead of getting the support and help that he needed, he was written off by his unit as a problem Soldier.  The applicant also states that:

   a.  he was sleep-deprived and did not think right.  He went from a combat unit to a basic training unit and he had not realized what he had been through.  He also states that he had 13 years of excellent service until he returned from Iraq as a "mentally tough" noncommissioned officer (NCO).  

   b.  he went downhill after all of the funeral details he performed and due to the occupational stress from his unit.  He concludes by stating that his discharge for misconduct was unjust because he was mentally incapable at the time of his discharge.
   
3.  The applicant provides copies of 22 pages of Department of Veterans Affairs (VA), VISTA Electronic Medical Documentation (pages 1 - 23, less page 9), printed on 12 February 2009; a letter from The Michael J. Novosel Foundation, Moon Township, Pennsylvania, dated 18 March 2009, written to the Secretary of the Army (SA) with 13 enclosures; a letter from Mister George T. M___, The Michael J. Novosel Foundation, dated 26 March 2009, written to Major Pat W___ (SA’s Office); a 1-page document, subject:  W___’s Chronological Summary of [Applicant’s] Case; and a thick binder containing photographs and documents in seven tabbed sections categorized as “Photographs, Separation, Army Bills, Tried to Get Help, 2nd Battalion/3rd Field Artillery Regiment, Career, and  Medical.”

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, restoration of the applicant’s rank to SSG
(E-6) and correction of his records to show he was medically retired due to TBI and PTSD.

2.  Counsel, in effect, defers to the applicant.

3.  Counsel provides no additional documentary evidence.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military personnel records show he enlisted in the U.S. Army Reserve (USAR) for a period of 8 years on 24 August 1993 and entered the Delayed Entry Program.  He was discharged from the USAR on 12 October 1993 and enlisted in the Regular Army (RA) for a period of 3 years on 13 October 1993.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 13B (Cannon Crewmember).  The applicant continued to serve on active duty in the RA and he attained the rank of SSG/E-6 on 1 May 2003.  He served in Iraq in support of Operation Iraqi Freedom from 28 March 2003 to 8 July 2004.

2.  The applicant's military personnel records contain a copy of Headquarters, XVIII Airborne Corps Artillery, Fort Bragg, North Carolina, memorandum, dated 24 March 1999, subject:  General Officer Memorandum of Reprimand.  This document shows the Commanding General reprimanded the applicant for flagrant disregard for the law, the safety of his fellow Soldiers and the general public.  Specifically, the Commanding General cited the applicant’s arrest by the military police on 12 March 1999 for the criminal offenses of drunken driving and failure to maintain lane.  The administration of a breathalyzer test to the applicant registered a blood alcohol content of .13 percent.



3.  The applicant's military personnel records contain a DA Form 2627 (Record of Proceedings under Article 15, UCMJ [Uniform Code of Military Justice]), dated
9 September 2002 which shows that nonjudicial punishment was imposed by the company commander against the applicant near Giessen, Germany, on or about 3 August 2002 for wrongfully communicating to Mrs. C______ M_____ a threat to injure her by saying to her “if you ever call my commander again it will be the last call you ever make” or words to that effect.  The punishment imposed was a forfeiture of $474.00 pay per month for 1 month (suspended, to be automatically remitted if not vacated before 8 December 2002) and 7 days of extra duty.

4.  The applicant's military personnel records contain a DA Form 2627, dated
29 August 2006, that shows nonjudicial punishment was imposed by the battalion commander against the applicant for wrongful use of cocaine between 9 and
16 July 2006.  The DA Form 2627 shows that in a closed hearing, all matters presented in defense, mitigation and/or extenuation having been considered, the commander imposed the following punishment:  reduction to the rank of sergeant SGT/E-5 (suspended, to be automatically remitted if not vacated before
6 February 2007), a forfeiture of $600.00 per month for 2 months, 45 days of extra duty, and 45 days of restriction (suspended, to be automatically remitted if not vacated before 6 February 2007).  The applicant did not appeal this action.

5.  The applicant's military personnel records contain a copy of Headquarters, U.S. Army Trial Defense Service, Fort Sill Field Office, Fort Sill, Oklahoma, memorandum, dated 7 September 2006, subject:  Written Matters to Accompany Field Grade Article 15 - SSG [Applicant’s Name].  This document shows that the applicant was afforded the right to consult with counsel, he did not demand trial by court-martial, and apologized for his actions.  He acknowledged "becoming involved with the wrong group of people” who introduced him to cocaine.  He also stated, “I have never before received any type of Article 15.”  The applicant added, “[a]s you know, I have been struggling a lot since being diagnosed with chronic PTSD.”  He also thanked the commander for allowing him to go to the Red River Treatment Center in Wichita Falls, and he acknowledged that the treatment and medication he was given improved his state of mind.  He also acknowledged that he had not “felt this good since before Iraq”; and he was “finally sleeping right, starting to deal with [his] PTSD issues and receiving family counseling.”  The applicant stated that “[s]ince successfully completing treatment at Red River, [he was] seeing a psychologist weekly, attending AA [Alcoholics Anonymous] and NA [Narcotics Anonymous] at least four times a week, and going to an NCO/Officer PTSD group.”  He also offered, “[b]efore, I was embarrassed to admit my PTSD problems or family issues, but now he had a wonderful support network, and [he] really feel[s] like [his] life is improving.”


6.  The applicant's military personnel records also contain a DA Form 2627 that shows on 1 June 2007 nonjudicial punishment was imposed by the battalion commander against the applicant in that, having received a lawful command from Captain Mark B_____, his superior commissioned officer, then known by the applicant to be his superior commissioned officer, to provide a urine sample after being randomly selected during a 10 percent unit urinalysis, or words to that effect, did, at Fort Sill, Oklahoma, on or about 21 May 2007, willfully disobey the same in violation of Article 90, UCMJ.  Further, this DA Form 2627 shows:

   a.  the applicant did not demand trial by court-martial and in the Article 15 proceedings he requested a closed hearing, a person to speak in his behalf, and indicated that matters in defense, mitigation, and/or extenuation would be presented in person.

   b.  that in a closed hearing, all matters presented in defense, mitigation and/or extenuation having been considered, the battalion commander imposed the following punishment:  reduction to the rank of SGT/E-5, a forfeiture of $1,300.00 per month for 1 month (a portion of the forfeiture of $800.00 per month for
1 month was suspended to be automatically remitted if not vacated before
1 August 2007), 30 days of extra duty, and 30 days of restriction to the limits of Fort Sill (suspended, to be automatically remitted if not vacated before 1 August 2007).

   c.  the applicant did not appeal the action.  Accordingly, the applicant was reduced to the rank of SGT/E-5, effective 1 June 2007.

7.  On 20 August 2007, the company commander notified the applicant of his intent to initiate separation action to effect his discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 14 (Separation for Misconduct), paragraph 14-12c, for commission of a serious offense.  The reasons for the commander’s proposed action were that the applicant tested positive for cocaine as the result of a command-directed urinalysis, the applicant received a field grade Article 15 for this misconduct, and he was enrolled in the Army Substance Abuse Program (ASAP).  The following actions occurred:

   a.  the commander stated that he was recommending the applicant receive a characterization of service of under other than honorable conditions.  The applicant was also advised of his rights; however, the applicant refused to sign the document acknowledging receipt of the memorandum.


   
   b.  on 20 August 2007, the applicant was counseled by his first sergeant concerning the proposed separation action and he was also advised of his right to seek legal counsel.  The applicant acknowledged with his initials and signature that he had been counseled by the first sergeant and he also expressed his desire to consult with legal counsel before signing the proposed separation memorandum.
   
   c.  on 20 August 2007, the applicant was also counseled by his battalion commander concerning possible separation action and his referral for additional treatment.  The applicant acknowledged with his initials and signature that he had been counseled by the battalion commander.

   d.  prior to initiation of the above separation action, a separation action was previously initiated under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c.  However, the separation authority retained the applicant because the command believed the applicant had the potential to overcome his drug use and continue to be a good NCO in the U.S. Army.

8.  The applicant's military records contain a DA Form 4856 (Developmental Counseling Form), dated 25 October 2007, that shows the battalion commander counseled the applicant on his punishment of restriction pursuant to an Article 15.  This document also shows, in pertinent part, that the applicant's rank/grade is recorded as "SPC/E-4" [specialist/pay grade E-4] and that the battalion commander addressed the applicant as "SPC W_______" on that date.

9.  On 26 October 2007, the applicant acknowledged with his signature that he had been advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  The applicant:

   a.  waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service no less favorable than a general discharge.  He also indicated that, if his conditional waiver was disapproved, he requested consideration of his case by an administrative separation board and representation by military counsel.

   b.  submitted a statement in his own behalf.  In pertinent part, the applicant stated that after he returned from Iraq in August 2004, he was diagnosed with chronic PTSD.  The applicant requested a general discharge so that he could continue treatment from the VA for his PTSD.  This document also contains the statement, “I have been reduced from an E6 to an E4 because of my mistakes, and I will forever live with the fact that I ruined my career.”

   c.  acknowledged he understood that he may expect to encounter substantial prejudice in civilian life if an other than honorable discharge or general discharge under honorable conditions was issued to him.  He indicated that he understood he may make application to the Army Discharge Review Board or the Army Board for Correction of Military Records for upgrading; however, an act of consideration by either board did not imply that his discharge would be upgraded.  The applicant indicated that it was his understanding that he was to receive a general discharge.  He acknowledged he would be ineligible to apply for enlistment in the U.S. Army for a minimum period of 2 years after discharge.  The applicant and the commissioned officer (serving in the Judge Advocate General Corps) who advised the applicant regarding the contemplated separation action each affixed their signature to the document.
   
   d.  began his statement "I, SPC Steven J. W_______" and that his signature block immediately below his signature contains the rank "SPC."

10.  The company commander reviewed the applicant’s statement of options and choices pertaining to the rights available to him and, based on the circumstances surrounding the applicant’s case, the company commander recommended the applicant be separated from the U.S. Army prior to his expiration term of service under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for commission of a serious offense.  (Note:  The applicant's first name is incorrectly recorded on this document; however, the applicant's last name, middle initial, and social security number are correct).  

11.  The commander also stated the command had made every effort to assist the applicant in overcoming his drug problem, but the applicant had failed to do his part.  The commander concluded that the U.S. Army could not tolerate multiple drug offenses and that the applicant’s separation was warranted.
The company commander recommended approval of the separation action and that the applicant’s service be characterized as under other than honorable conditions.

12.  On 26 October 2007, the battalion commander reviewed the proposed separation action and recommended the applicant’s separation from the U.S. Army under the provisions of Army Regulation 635-200, chapter 14, paragraph 
14-12c, for commission of a serious offense with an Other Than Honorable Discharge Certificate.  He also recommended the requirement for rehabilitative transfer be waived because it would not produce the quality Soldier desired by today’s Army.


13.  On 26 October 2007, the brigade commander reviewed the proposed separation action and recommended the applicant’s separation from the U.S. Army under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for commission of a serious offense.  He also recommended that the applicant receive an Other Than Honorable Discharge Certificate.

14.  On 26 October 2007, the Commander, U.S. Army Field Artillery Center and Fort Sill (USAFACFS), Fort Sill, Oklahoma, disapproved the applicant's conditional waiver and referred his case to an administrative separation board.

15.  On 27 November 2007, the administrative separation board convened.  The board found that the applicant's separation was supported by a preponderance of the evidence and that his retention in the military was no longer desirable.  The board recommended the applicant be separated from the military with an honorable discharge and that his discharge be suspended for a period of three months.  The board also recommended the applicant be transferred from his current battalion pending consideration for possible administrative discharge under the provisions of Army Regulation 635-200, chapter 5 (Separation for Convenience of the Government), paragraph 5-17 (Separation for other designated physical or mental conditions). 

16.  On 30 November 2007, Major L____ A. C______, Administrative Law Attorney, USAFACFS, Fort Sill, Oklahoma, reviewed the proceedings from the separation action and found they complied with all legal requirements, the findings were supported by the evidence, the recommendation was consistent with the findings, and the proceedings were legally sufficient.  The attorney noted that the packet contained two pages with references to limited use information; the limited use policy limits the characterization of discharge to "honorable" if such evidence is used; and since the separation board recommended an honorable characterization of service, there was no prejudice to the applicant, thus this error was harmless. 

17.  On 10 December 2007, Doctor (Major) P. Lino C____, Chief, Community Mental Health and Family Mental Health Service (CMHS), Reynolds Army Community Hospital, Fort Sill, Oklahoma, provided a response to a question posed by the Commanding General, USAFACFS, Fort Sill, Oklahoma.  Doctor C____ stated, in pertinent part, that the CMHS treatment team had discussed the applicant's case thoroughly, revisited his prior appointments at the CMHS, and reviewed the documents from his command.  The CMHS team agreed with applicant’s discharge action under the provisions of Army Regulation 635-200, chapter 14, and recommended not to proceed with a discharge under the provisions of Army Regulation 635-200, chapter 5, paragraph 5-17, because the applicant's behavior could not be proven to be caused by any psychiatric illness.
18.  On 13 December 2007, the major general serving as the general court-martial convening authority and the authorized separation authority in the applicant’s case approved, in part, the applicant's administrative separation from the U.S. Army under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for commission of a serious offense.  The commanding general ordered the applicant be issued an honorable discharge; any unearned portions of enlistment bonuses be recouped; the applicant not be transferred to the Individual Ready Reserve because he was ineligible under the provisions of Army Regulation 635-200, paragraph 1-35; and directed the discharge action be executed without any suspension period.  Accordingly, the applicant was discharged on 19 December 2007.

19.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant on the date of his separation confirms he was honorably discharged, under the provisions of Army Regulation 635-200, paragraph 14-12c, based on misconduct (serious offense) with the separation code "JKQ."  At the time of his discharge the applicant had completed 14 years, 2 months, and 7 days of net active service this period.  Item 4a (Grade, Rate or Rank) contains the entry "SPC"; Item 4b (Pay Grade) contains the entry "E04"; and Item 12 (Record of Service), block h (Effective Date of Pay Grade), contains the entry "2007 10 25" (i.e., 25 October 2007).

20.  There is no evidence that the applicant was referred to a Medical Evaluation Board or a Physical Evaluation Board.

21.  The applicant's military personnel records document no acts of valor, significant achievement, or service warranting special recognition.

22.  In support of his application, the applicant provides the following documents:

   a.  copies of 22 pages of VA, VISTA Electronic Medical Documentation (pages 1 - 23, less page 9), printed on 12 February 2009, that document his medical visits from 16 October 2008 to 5 November 2008 and, in pertinent part, that the applicant reported frequent exposure to blasts from rocket propelled grenades (RPG), improvised explosive devices (IED), mortars, and frequently being under fire.  He recalled two significant incidents in Iraq.  On 23 December 2003, an IED blew up the Humvee he was in and he had a loss of consciousness (versus amnesia) and several days of disorientation.  He was transferred to an aid station and stayed there one week.  He also describes another incident on
19 October 2003, when the vehicle in front of his was blown up, a large rock hit his windshield, and two of his fellow troops were killed in this incident.  This documentation also shows, on 20 October 2008, the applicant's case was discussed by the VA polytrauma team meeting, which noted that the applicant "showed multiple deficits, will require extensive further evaluation to try and sort out PTSD versus TBI versus possible effect of ETOH [ethyl alcohol or ethanol] abuse (dementia, cerebellar effects).”  It was also noted, “[p]lan is referral to Philadelphia 2nd level polytrauma program to facilitate evaluation and formulate treatment plan, avoid care fragmentation."

   b.  the Michael J. Novosel Foundation, Moon Township, Pennsylvania, letter, dated 18 March 2009, that was written to the SA serves to remind the SA that the author met him at the Golden Knights’ 50th Anniversary at Fort Bragg, North Carolina, where he presented the applicant’s case to the SA.  The 13 pages of attached enclosures are documents related to the applicant’s administrative separation packet and, in pertinent part, contain a Report of Behavioral Health Evaluation, dated 13 August 2007.  This document shows Doctor C_______ F. J____, Clinical Psychologist, CMHS, Reynolds Army Community Hospital, Fort Sill, Oklahoma, documented the following: Impressions:  In the doctor’s opinion, the applicant was mentally responsible; Diagnostic Findings:  AXIS I:  PTSD, Alcohol Dependence, Cocaine Abuse; AXIS II:  Cluster B traits; AXIS III:  unknown at the time of writing; Proposed Treatments:  No further Mental Health contact required; Precautions:  Applicant was considered conditionally dangerous and an order against the use of alcohol was recommended; Fitness for Duty and Continued Service:  The applicant met psychiatric criteria for expeditious administrative separation in accordance with Army Regulation 635-200, chapter 5, paragraph 5-17; and it was the doctor’s professional opinion that the applicant would not respond to Command efforts at rehabilitation (such as transfer, disciplinary action or reclassification), or to any treatment methods (then) currently available in any military behavioral health facility.  The Remarks section contains, in pertinent part, the following statements:  “The records contain information which suggests a diagnosis of PTSD”; “This Soldier has never received treatment for PTSD because he has adamantly refused to discuss what happened in Iraq since his first visit.  He has avoided all services which are geared towards PTSD (i.e., specialized groups, individual therapy)”; and “Attempts by the therapist to determine what was really going on were met with, ‘I don’t want to talk about that.  It still really bothers me’.”  The doctor concludes his remarks with “CMHS cannot write a med[ical] board on a Soldier if he won’t discuss what happened in combat.  The PEB will require a description of incidents in Iraq and phone numbers of those who can verify the incidents.  It is for this reason that a Chapter 5-17 is strongly recommended.  This way the Soldier is not punished for having issues related to combat and his path to treatment will be easier when he finally decides to stop drinking and using.”

   c.  a letter from Mister G_____ T. M___, The Michael J. Novosel Foundation, dated 26 March 2009, to Major Pat W___ (SA’s Office) and a 1-page document, subject:  W___’s Chronological Summary of [Applicant’s] Case.  The documents   provide a summary of the applicant’s service and actions from July 2001 through January 2009.  In his letter, Mr. M___ asserts, in pertinent part, that instead of the applicant being given access to participate in activities in Germany, along with his fellow warriors that would decompress him, he was issued orders and given only 10 days to accomplish his move to Fort Sill, Oklahoma; he performed more than 100 funeral details; and the applicant’s chain of command at Fort Sill never took the time to follow the treatment protocol given them by competent medical professionals. 

   d.  a one and one-half inch thick binder of photographs and documents in seven tabbed sections categorized as “Photographs, Separation, Army Bills, Tried to Get Help, 2nd Battalion/3rd Field Artillery Regiment, Career, and Medical.”

       (1)  Photographs:  Sixteen photographs of the applicant with his wife and children; of the applicant, both alone and with fellow Soldiers and civilians; and four pictures of damaged vehicles.

       (2)  Separation:  A copy of the applicant's administrative separation packet (with identified enclosures) that was previously introduced and considered in this Record of Proceedings.  The DD Form 2808 (Report of Medical Examination), dated 12 October 2007, prepared for the purpose of documenting the applicant's separation medical examination shows in Item 74a (Examinee/Applicant) that the medical official conducting the examination indicated the applicant was qualified for service and, in pertinent part, separation under the provisions of Chapter 14.

       (3)  Army Bills:  Nineteen documents relating to applicant's indebtedness, including the Departments of the Army and Air Force, Army and Air Force Exchange Service (AAFES), letter, dated 24 April 2008, showing a past due debt owed to the AAFES of $7,288.15; Department of the Treasury, Finance Management Service, Birmingham, Alabama, letter, dated 2 January 2009, providing notice of collection of debt; DD Form 1299 (Application for Shipment and/or Storage of Personal Property), dated 10 June 2008, and Defense Finance and Accounting Service, Indianapolis Transportation Payment Operations, Indianapolis, Indiana, letter, dated 9 January 2009, with enclosures, serving notice of amount due of $3,342.31 to the U.S. Government for excess weight related to the shipment of household goods; and DD Form 200 (Financial Liability Investigation of Property Loss), dated 18 December 2007, with enclosures, finding the applicant financially liable to the U.S. Government for the loss of Government property in the amount of $237.28.


       (4)  Tried to Get Help:  Six documents spanning the period from 1 August 2007 to 19 December 2007 (with two enclosures) that show the efforts of the applicant and his wife to obtain assistance from the President of the United States, U.S. Senators, and their Representative in Congress regarding the applicant's medical condition, personal financial difficulties, and administrative discharge from the U.S. Army.
   
       (5)  2nd Battalion/3rd Field Artillery Regiment:  Articles from various sources, including:  Gunner Palace - Some War Stories Will Never Make the Nightly News, dated 11 March 2009 from www.gunnerpalace.com; Stars and Stripes, 1st AD Raids Net Suspected Organizer of Attacks on Troops, dated
1 October 2003; America Online, U.S. Commander:  Iraq Attacks on Troops Up, dated 22 October 2003; U.S. Soldiers Killed in Iraq, dated 27 October 2003; Two U.S. Soldiers Hurt in Baghdad Blast, dated 22 October 2003; Fallen Heroes of Operation Iraqi Freedom, printed 24 November 2007, from www.fallenheroesmemorial.com; Case Studies, The Checkpoint in al-Slaikh, printed 23 November 2007 from www.hrw.org ; U.S.A. Today, Glimpses of November U.S. Casualties, printed 23 November 2007, from www.usatoday.com  and Fallen Heroes of Operation Iraqi Freedom, printed 23 November 2007.

       (6)  Career:  Numerous documents from the applicant's military service records.  These documents, in pertinent part, include three email messages from two former commanders of the applicant and an NCO that offer endorsement of the applicant and were submitted to his defense counsel for presentation during the applicant's administrative separation board; copies of three Enlisted Record Briefs; five DA Forms 2166-8 (NCO Evaluation Reports) spanning the period July 2002 through May 2006; two awards of the Army Commendation Medal; six awards of the Army Achievement Medal; four awards of the Army Good Conduct Medal; four DA Forms 1059 (Service School Academic Reports); eight Certificates of Achievement from the Emergency Management Institute; five Certificates of Completion from The Army Institute for Professional Development, U.S. Army Training Support Center, Fort Eustis, Virginia; The Army Distance Learning Program (TADLP) Enrollment History (11 pages) documenting, in pertinent part, courses completed by the applicant from 16 November 2002 through 2 January 2003; two Certificates of Appreciation; four Certificates of Achievement; six Certificates of Training; and three Certificates of Diploma.   These records, in pertinent part, document the applicant's military training, duty performance, awards, and achievements from 13 October 1993 through 31 May 2006.



       (7)  Medical:  Documentation from the applicant's medical records.  These records, in pertinent part, include a Report of Behavioral Health Evaluation, dated 13 August 2007; ten documents from Red River Hospital documenting the applicant's treatment from 17 July to 21 August 2006 and from 20 August to
17 September 2007; Headquarters, U.S. Army Medical Department, Fort Sill, Oklahoma, memorandum, dated 5 November 2007, subject:  SGT [Applicant's Name and Social Security Number]; twenty-seven Standard Forms (SF) 600 (Chronological Records of Medical Care) spanning the period from 29 October 2003 to 8 November 2007; 1-page VA service connection rating, effective
10 December 2008; and 2-page Social Security Administration, Retirement, Survivors and Disability, Notice of Award, dated 4 March 2008.

       (a)  the Report of Behavioral Health Evaluation, dated 13 August 2007, was previously introduced and considered in this Record of Proceedings.
   
       (b)  the Red River Hospital, Social Services Discharge Summary, with an Admit Date of 20 August 2007 and Discharge Date of 17 September 2007, in pertinent part, shows a Treating Diagnosis - Axis I:  Alcohol Dependence, Cocaine Abuse (Rule out Dependence), History of Attention Deficit Hyperactivity Disorder, and PTSD; Axis II: None; Axis III: None; Axis IV: Problems with primary support group, social environment and occupational problems; and Axis V: Current 30 - past year 65.  The Course in program shows, in pertinent part, "He is aware of the differences between a medicated state or unmedicated state of mind whether it be prescribed or purchased on the street.  Particularilly (sic) in regard to addressing his PTSD issues."  This document also shows, "[Applicant] possesses the necessary information, tools and where-with-all to live a life clean and sober.  He knows what he needs to do and where and how to do it.  All he needs do is follow the directions in his possession.  He has demonstrated that he has the capacity for recovery he just needs to do it."  The Social Services Caseworker/Counselor includes, in pertinent part, the instruction, "[f]ollow up with Fort Sill ASAP and CM for PTSD and other related issues and to attend either Narcotics Anonymous or Alcoholics Anonymous meetings."

       (c)  the SFs 600 offer a chronological record of the applicant's medical care.  The SF 600, dated 29 October 2003, time 1245 hours, in pertinent part, shows the applicant complained of right ear ringing resulting from explosion of an IED approximately 30 minutes prior and that the applicant requested his return to duty.  The remaining SFs 600 span the period from 21 July 2005 to 8 November 2007 and, in pertinent part, document the applicant's treatment at the Reynolds Army Community Hospital mental health and psychiatry clinics for Chronic PTSD, follow-up from inpatient treatment at Red River Hospital for drug and alcohol rehabilitation, and counseling/coordinating care following the applicant's relapses with his use of alcohol and drugs.  The SFs 600 show the applicant was to be seen in the Combat Stress group, stay with ASAP, and continue to be seen by the Clinical Psychologist; however, he indicated he did not want to follow-up with ASAP.
   
       		(1)  The SF 600, dated 23 July 2007, shows the Clinical Psychologist documented that the applicant was "going to wait to see if they decide to chapter him.  [Applicant] is blaming his drinking and using on Iraq – 'I have PTSD'."  The Clinical Psychologist "[p]ointed out that [the applicant] has never come to CMHS enough to discuss his symptoms and [they] cannot use PTSD as a reason for discharge without treatment information."

       		(2)  The SFs 600, dated 6 August 2007 to 10 August 2007, in pertinent part, document the assertion of the applicant's family that the Army is not taking care of the applicant, the battalion commander's observations of the applicant's lack of truthfulness with his family regarding his situation and treatment, and the clinical psychologist's encouragement to the battalion commander that the command separate the applicant's behavior from the Soldier.  It also shows the clinical psychologist's recommendation that the applicant be separated under the provisions of Army Regulation 635-200, paragraph 5-17.

       		(3)  The SF 600, dated 17 August 2007, in pertinent part, shows that the clinical psychologist shared information about the applicant's possible discharge and that, "if [the applicant] is willing to tell his story of trauma in Iraq and provide phone numbers and names of witnesses, CMHS would write the MEB [Medical Evaluation Board]."

       		(4)  The SFs 600, dated 20 August to 8 November 2007, in pertinent part, document the applicant's sleep walking, Team Risk meeting notes pertaining to the applicant, the clinical psychologist's notations that "medication is working well and [applicant] is doing OK," and show the applicant was removed from the Risk list on 8 November 2007.

   (d)  a one-page VA service connection rating that shows the VA determined the applicant's conditions were related to his military service and service connection was granted for PTSD (50 percent); left wrist avascular necrosis, status post fracture, claimed as residuals, broken left arm (10 percent); patellofemoral pain syndrome, right knee (10 percent); tinnitus, residual of traumatic brain injury (10 percent); and bilateral hearing loss (0 percent), effective 20 December 2007.  This document also shows that the VA granted an increase in the applicant's assigned percentage for PTSD from 50 percent to
70 percent, effective 10 December 2008.

   (e)  a two-page Social Security Administration, Retirement, Survivors and Disability, Notice of Award, dated 4 March 2008, that shows the Social Security Administration found the applicant became disabled on 17 August 2007 and was entitled to monthly disability benefits beginning February 2008.

23.  Army Regulation 635-200, in effect at the time of the applicant's separation from active duty, set policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 14 established policy and prescribed procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  This regulation states, in pertinent part, that action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge or an honorable discharge, if such is merited by the Soldier's overall record.

24.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD Code to be entered on the DD Form 214.  It identifies the SPD of “JKQ” as the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, for misconduct (serious offense).

25.  Army Regulation 635-200, chapter 1 (General Provisions), paragraph 1-33 (Disposition through medical channels), in pertinent part, provides that when the medical treatment (MTF) facility commander or attending medical officer determines that a Soldier being processed for administrative separation under chapters 7, 14, or 15 does not meet the medical fitness standards for retention, he/she will refer the Soldier to a Medical Evaluation Board (MEB).  The administrative separation proceedings will continue, but final action by the separation authority will not be taken, pending the results of the MEB.

26.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), in effect at the time of the applicant's discharge, set forth policies, responsibilities, and procedures in determining whether a Soldier was unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  Chapter 3 (Policies), paragraph 3-1 (Standards of unfitness because of physical disability), of this Army regulation, in pertinent part, provides that the mere presence of an impairment does not, of itself, justify a finding of unfitness because of physical disability.  In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the Soldier reasonably may be expected to perform because of their office, grade, rank, or rating.  To ensure all Soldiers are physically qualified to perform their duties in a reasonable manner, medical retention qualification standards have been established in Army Regulation
40-501 (Standards of Medical Fitness), Chapter 3 (Medical Fitness Standards for Retention and Separation, Including Retirement).  These standards include guidelines for applying them to fitness decisions in individual cases.  These guidelines are used to refer Soldiers to a MEB.

27.  Title 10, U.S. Code, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rated at least 30 percent.  Section 1203, provides for the physical disability separation with severance pay of a member who has less than 20 years service and a disability rated at less than 30 percent.

28.  Army Regulation 635-200, chapter 5, paragraph 5-17 (Other designated physical or mental conditions), in pertinent part, provides that specified commanders may approve separation under this paragraph on the basis of other physical or mental conditions not amounting to disability (Army Regulation
635-40) and excluding conditions appropriate for separation processing under paragraph 5-11 or 5-13 that potentially interfere with assignment to or performance of duty.  Such conditions may include, but are not limited to chronic airsickness, chronic seasickness, enuresis, sleepwalking, dyslexia, severe nightmares, claustrophobia, and other disorders manifesting disturbances of perception, thinking, emotional control or behavior sufficiently severe that the Soldier’s ability to effectively perform military duties is significantly impaired.

29.  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 VA service connected rating does not establish error or injustice in the Army separation process.  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 (emphasis added).  The VA, which has neither the authority, nor the responsibility for determining physical fitness for 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 different decisions based on the same impairment.  Furthermore, 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.

30.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the 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.  The applicant contends, in effect, that his rank of SSG (E-6) should be restored and his records corrected to show he was medically retired due to a TBI and PTSD because he was mentally incapable at the time.

2.  The applicant’s DD Form 214 shows his grade at the time of his discharge on 19 December 2007 was SPC (E-4) with an effective date of 25 October 2007.  Additionally, the evidence of record:

   a.  shows the applicant was promoted to the rank of SSG/E-6 effective 1 May 2003.

   b.  shows that nonjudicial punishment was imposed by the battalion commander against the applicant on 1 June 2007.  The evidence of record also shows the punishment imposed, in pertinent part, included reduction of the applicant to the rank of SGT.  The applicant was reduced to the rank of SGT/E-5, effective the same date.

   c.  shows that nonjudicial punishment was imposed by the battalion commander against the applicant on 25 October 2007.  The evidence of record also shows the punishment imposed, in pertinent part, included reduction of the applicant to the grade of E-4.  The evidence of record further shows that the battalion commander and applicant both acknowledged in writing (i.e., on 
25 October 2007 and 26 October 2007, respectively) that the applicant’s grade was SPC/E-4.  Thus, the preponderance of evidence shows the applicant was reduced to the grade of SPC/E-4 effective 25 October 2007.
   
   
   d.  shows the applicant was not promoted subsequent to his reduction to the grade of E-4 on 25 October 2007 and/or prior to the date of his discharge on
19 December 2007.
   
   e.  in view of all of the foregoing, the applicant was properly reduced to the rank of SPC/E-4, the applicant’s rank at the time of discharge from the U.S. Army was SPC/E-4, and that his rank is correctly recorded on his DD Form 214.  Moreover, the applicant offers insufficient evidence to support his contention that his rank of SSG/E-6 should be restored.  Therefore, the applicant is not entitled to correction of his records in this instance.

3.  The evidence of record shows the applicant was diagnosed, in pertinent part, with alcohol dependence, cocaine abuse, and PTSD and the applicant received extensive treatment for these medical conditions.  The evidence of record also shows that medical professional opinion found that the applicant would not respond to command efforts at rehabilitation (such as transfer, disciplinary action or reclassification), or to any treatment methods then currently available in any military behavioral health facility.  The evidence of record further shows that the applicant “adamantly refused to discuss what happened in Iraq since his first visit” and “avoided all services which are geared towards PTSD (i.e., specialized groups, individual therapy).”  Thus, medical officials could not write a medical evaluation board on the applicant because he refused to discuss matters with medical personnel in order for verification of the incidents.  Therefore, the evidence of record refutes the applicant’s contention that he was written off by his unit as a problem Soldier instead of getting the support and help he needed.

4.  The evidence of record shows, on 12 October 2007, the medical official conducting the applicant’s separation medical examination indicated the applicant was qualified for service and also separation under the provisions of Chapter 14.  Moreover, there is no evidence of record that shows the applicant was found unfit for retention during the period of service under review.  Thus, the evidence of record refutes the applicant’s contention that his discharge for misconduct was unjust because he was mentally incapable at the time of his discharge.

5.  The evidence of record shows, on 27 November 2007, the administrative separation board found the applicant's separation action was supported by a preponderance of the evidence and that his retention in the military was no longer desirable.  The evidence of record also shows the board recommended the applicant be separated from the military with an honorable discharge, that his discharge be suspended for a period of three months, and recommended the 

applicant be transferred from his current battalion pending consideration for possible administrative discharge under the provisions of Army Regulation
635-200, chapter 5, paragraph 5-17. 

6.  The evidence of record shows, on 10 December 2007, the Chief, CMHS, Reynolds Army Community Hospital, Fort Sill, Oklahoma, advised the separation authority that he confirmed that the CMHS team agreed with discharge of the applicant under the provisions of Chapter 14, and recommended not to proceed with a discharge under the provisions of Army Regulation, chapter 5, paragraph 5-17, because the applicant's behavior could not be proven to be caused by any psychiatric illness.

7.  The evidence of record shows the applicant’s was honorably discharged, on
19 December 2007, under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12c, based on misconduct (commission of a serious offense) was proper and equitable, and in accordance with the regulations in effect at the time.  In addition, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  Moreover, the evidence of record shows that the authority, narrative reason, and SPD Code recorded on the applicant’s discharge are valid and correct.

8.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption.  The applicant fails to provide such evidence.  Thus, since there is no evidence of record to show that the applicant's medical conditions in question at the time were found medically unfitting for retention in accordance with Army Regulation 40-501, there was no basis for referral of the applicant to a medical/physical evaluation board.

9.  The VA determination of service connection for the applicant’s medical conditions is noted.  However, the Army rates only conditions determined to be physically unfitting (emphasis added) that were incurred or aggravated during the period of service.  The VA (and some other government agencies) on the other hand, provides compensation for disabilities which it determines were incurred in or aggravated by active military service and which impair the individual's industrial or social functioning.  Moreover, the law requires the VA must give the veteran the benefit of any reasonable doubt.  The fact that the VA (or any other government agency), in its discretion, awarded the applicant a disability rating is a prerogative exercised within the policies of that agency.  Therefore, in view of all of the foregoing, the applicant is not entitled to correction of his records to show he was medically retired from the U.S. Army based on physical disability.

10.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20090007032



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ABCMR Record of Proceedings (cont)                                         AR20090007032



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