IN THE CASE OF:	  

		BOARD DATE:	       1 OCTOBER 2009

		DOCKET NUMBER:  AR20090008282 


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 reconsideration of his previous request for medical retirement.

2.  The applicant states that at the time of his discharge the United States Army was well aware that he suffered significant psychological problems.  He states that his problems arose during his military service and were exacerbated by his military service.  He states that very soon after his discharge he was declared disabled for psychological problems and that these problems exist today.  He states that the Army should have given him a full psychological evaluation prior to his discharge based on his known problems.  He states that an evaluation would have resulted in his being declared disabled by more than 30 percent and, therefore, a medical retirement would have been required.

3.  The applicant provides a letter from his attorney dated 23 April 2009; an undated letter and a letter from the Department of Veterans Affairs (VA) dated 22 May 2001 notifying him of the decision made in his case; his DD Form 214 (Certificate of Release or Discharge from Active Duty); a letter from the VA Medical Center Psychosocial Residential Rehabilitation Treatment Program (PRRTP); one page of his Personnel Qualification Record; letters from a Compass Health Systems psychotherapist dated 23 November 2005 and 7 September 2007; and copies of his VA radiology reports, laboratory results, progress notes, and surgical information dated between 11 January 2008 and 23 June 2008.


COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the applicant’s discharge be changed to a medical retirement.

2.  Counsel states that the applicant began experiencing significant mental problems during his active duty time, as should be documented by his active duty records.  Counsel states that at the time of the applicant’s discharge his mental condition had seriously deteriorated and yet he was not fully evaluated by Army doctors; that he was not told that if he was disabled more than 30 percent, the Army could not discharge him; and that his mental condition had been a long standing problem that should have been resolved prior to his discharge.

3.  Counsel provides no documents in addition to those submitted by the applicant.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR1999028293 on 9 March 2000.

2.  This case is being reconsidered based on the medical evidence submitted by the applicant through his counsel, which was not previously considered.

3.  After completing 13 years, 11 months, and 10 days of total prior inactive service as a member of the Army National Guard and the United States Army Reserve, the applicant enlisted in the Regular Army on 5 November 1996 as a combat engineer in Miami, Florida, for 4 years in the pay grade of E-3.

4.  In a memorandum for the Commander, Medical Holding Company, dated 11 May 1997 [sic], a Department of the Army Alcohol and Drug Counselor stated that the applicant was initially seen at the Alcohol and Drug Abuse Prevention and Control Program (ADAPCP) on 8 August 1997 after being medically referred by the Community Mental Health Services at Fort Gordon, Georgia, and that during his evaluation, the applicant gave information about his history of alcohol use.  According to the counselor, the applicant admitted to having a problem with alcohol; he identified many stressors in his life that contributed to his problem with alcohol; and he was further medically evaluated by the acting clinical consultant.  A diagnosis of alcohol dependency was confirmed.  A rehabilitation team meeting was held with the applicant and his chain of command on 14 August 1997 and he was enrolled in outpatient treatment at the ADAPCP.  Following a relapse on alcohol, the applicant was admitted to the Eisenhower Substance Addiction Program (ESAP) on 3 September 1997.  He commenced treatment at ESAP and returned to continue with his aftercare at the ADAPCP.

5.  In the memorandum the counselor stated that consultation with the applicant’s chain of command revealed that he tested positive for cocaine by-products in his urine sample on 12 March 1998 and when confronted about his positive test, he maintained his denial of ever using illegal drugs.  On 22 April 1998, the applicant was re-admitted to the impatient psychiatry unit at Eisenhower Army Medical Center (EAMC) as a medical transfer from the VA hospital in Orlando, Florida, with a diagnosis of cocaine-induced hallucinations.  The counselor stated that due to the applicant’s relapse, the commander declared him a rehabilitation failure and the ADAPCP staff recommended that the applicant be allowed the opportunity to receive aftercare services at the VA hospital upon discharge from active duty.

6.  A staff psychiatrist at Headquarters, EAMC, notified the Commander, Medical Hold Company, EAMC, on 12 May 1998 that the applicant had been evaluated during his hospitalization from 22 April 1998 to 29 April 1998.  According to the notification, the applicant had been transferred from the psychiatry ward at the VA Hospital in Miami, Florida, where he had been admitted on 7 April 1998 for suicidal and homicidal ideation, as well as auditory hallucinations.  He had been diagnosed as suffering from a cocaine-induced psychotic disorder.  The staff psychiatrist stated that while the applicant was hospitalized at EAMC he was observed off medication and that he showed no signs of psychosis.

7.  According to the notification, by 29 April 1998 the applicant expressed a strong desire to be discharged and given that he did not warrant involuntary hospitalization due to dangerousness, he was released and returned to duty.  The staff psychiatrist stated that although the applicant did not behave violently during or preceding his hospitalization, and though he did not threaten to harm anyone specifically, his wife stated that he could experience a great deal of anger and frustration at times and may have trouble controlling his behavior at such times.  The staff psychiatrist stated that given the facts of the applicant’s case, it was recommended that his command work closely with his outpatient counselors to ensure he made his appointments and to ensure he is coping adequately with whatever stresses he may face.  The applicant was diagnosed with a resolved cocaine-induced psychotic disorder, alcohol dependence, cocaine abuse, and cluster B personality traits.  The staff psychiatrist stated that the applicant met the retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness), chapter 3; that he was mentally sound and able to appreciate any wrongfulness in his conduct; that he was able to conform his conduct to the requirements of the law; that he had the mental capacity to understand and to participate in board and other administrative proceedings; and that there was no psychiatric disease/defect which warranted his disposition through medical channels.  The applicant was cleared for action as deemed appropriate by his command, to include administrative separation

8.  On 11 June 1998 the applicant underwent a medical examination and he was determined to be qualified by competent medical personnel for discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 9, as a drug rehabilitation failure.

9.  On 12 June 1998 the applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 9, due to alcohol or other drug abuse rehabilitation failure.  He acknowledged receipt of the notification and after consulting with counsel he opted not to submit a statement in his own behalf.

10.  The appropriate authority approved the recommendation for discharge on 12 June 1998 and directed the issuance of an Honorable Discharge Certificate.  Accordingly, on 18 June 1998 the applicant was honorably discharged under the provisions of Army Regulation 635-200, chapter 9, due to drug rehabilitation failure.  He had completed 2 years, 3 months, and 11 days of net active service during that enlistment.

11.  On 9 March 2000 the ABCMR denied the applicant’s request for medical retirement.

12.  The undated letter and the letter dated 22 May 2001 that the applicant submitted in support of his application show that he was awarded a 100-percent service-connected disability rating by the VA for bipolar disorder.

13.  The letter from the VA Medical Director, PRRTP, at the Miami, Florida, Healthcare System dated 15 June 2007 shows that the applicant has been under his medical care and being treated for bipolar disorder with endorsed symptoms consistent with post-traumatic stress disorder (PTSD) related to an incident which the applicant contends he witnessed while he was in the service.  The applicant reported that he witnessed the stabbing death of his best friend while in Germany and according the Medical Director, his symptoms include recurrent nightmares of the event and intrusive daytime thoughts of the event.

14.  The letters from the Compass Health Systems psychiatrist dated 23 November 2005 and 7 September 2007 submitted by the applicant show that he has been attending sessions intermittently since 12 April 2005 and that his diagnoses include:  severe mixed bipolar disorder with psychosis, PTSD, heart disease, elevated blood pressure and cholesterol levels, back injury, migraine and cluster headaches, and asthma.  Both letters indicate that he is receiving treatment for his illnesses.

15.  The copies of his VA radiology reports, laboratory results, progress notes, and surgical information that the applicant submitted shows his VA treatment for all of his injuries between 11 January 2008 and 23 June 2008.

16.  Army Regulation 635-200 (Enlisted Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 9 contains the authority and outlines the procedures for discharging individuals because of alcohol or other drug abuse.  A member who has been referred to ADAPCP for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical.

17.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purpose of his employment on active duty.  A medical evaluation board (MEBD) is convened to document a Soldier’s medical status and duty limitations insofar as duty is affected by the Soldier’s status.  A decision is made as to the Soldier’s medical qualification for retention based on the criteria in Army Regulation 40-501, chapter 3.  If the MEBD determines that the Soldier does not meet retention standards the board will recommend referral of the Soldier to a physical evaluation board.

18.  Army Regulation 40-501 (Standards of Medical Fitness) governs medical fitness standards for, among other areas, enlistment, retention and separation, including retirement.  Chapter 3 provides standards for medical retention.  Basically, members with conditions as severe as listed in this chapter are considered medically unfit for retention on active duty.  Paragraph 3-31 provides that the causes for referral to an MEBD are mental disorders not secondary to intoxication, infectious, toxic, or other organic causes, with gross impairment in reality testing, resulting in interference with duty or social adjustment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be changed to a medical retirement.
2.  The applicant’s records show that while he was in the Army he provided a urine sample that tested positive for cocaine by-products and he was later hospitalized as a result of a cocaine-induced psychotic disorder.  His records also show that he had a dependency on alcohol.  He was afforded rehabilitation, he was a rehabilitation failure, and he was discharged accordingly in June 1998.

3.  In accordance with Army Regulation 635-200, chapter 9, a member who has been referred to ADAPCP for alcohol/drug abuse may be separated because of inability or refusal to participate in, cooperate in, or successfully complete such a program if there is a lack of potential for continued Army service and rehabilitation efforts are no longer practical.

4.  While the applicant’s records do contain diagnoses of alcohol dependency and cocaine-induced psychotic disorder, these conditions are secondary to intoxication.  Therefore, he was not eligible to be processed for separation through medical channels.  Additionally, his service medical records do not indicate any other medical condition incurred while entitled to receive basic pay which was so severe as to render him medically unfit for retention on active duty.  At the time of the separation physical examination, competent medical authority determined that the applicant was medically fit for retention or appropriate separation.  Accordingly, it appears the applicant was properly separated from active duty for reasons other than physical disability.

4.  The evidence in the available records shows that the first documented reference of PTSD and bipolar disorder did not occur until November 2005, which was over 7 years after his discharge.  

5.  There is no evidence in the available record, nor has the applicant or his counsel submitted sufficient evidence to show he was unfit for retention in the Army at the time of his discharge or that he had a medical condition, other than perhaps his drug-induced psychosis, severe enough to process him for separation through medical channels.

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 has failed to submit 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___  ____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 to amend the decision of the ABCMR set forth in Docket Number AR1999028293 dated 9 March 2000.



      _____________XXX____________
                 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)                                         AR20090008282



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ABCMR Record of Proceedings (cont)                                         AR20090008282



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